Revoking a life insurance policy is still a complicated matter. Some insurers will initially reject the revocation in a lump sum with text modules and in the second attempt simply acknowledge it with a remainder to customers and often pay the policyholder less than the surrender value. Well, I guess it’s good to have legal expenses insurance. But how to proceed in this case and can it be done without RSV?
Some insurers accept the revocation and then do not pay anything at all for an indefinite period of time, because even months later they do not know how to calculate a revocation. In this case, the only solution is to take legal action with the help of your own actuarial expert opinion.
Insured event in legal expenses insurance (RSV)
The decisive factor is what the insured person communicates to the RSV by reporting the damage: In this context, “only the statement of facts with which the UN justifies the breach of duty by its claimant is decisive for determining the breach of duty characterising the insured event. (BGH, judgement of 25.02.2015, file no. IV ZR 214/14).
If a life insurer, for example, refuses to reverse and recalculate the transaction, “this constitutes a material breach within the meaning of § 4 (1) sentence 1 letter. c) ARB 2004 lies in the refusal to recognise the right of objection and not in the alleged lack of information at the time of conclusion of the contract. (BGH, ruling of 24.04.2013, file no. IV ZR 23/12). It is therefore crucial that an RSV exists today before the revocation of a credit agreement or insurance is considered. However, some RSV providers have excluded cover in cases of revocation since mid-2014 or later in their General Legal Protection Conditions.
Regularly no exclusion of cover in the General Terms and Conditions of Legal Protection (ARB)
Insurance terms and conditions are “to be interpreted in such a way that an average policyholder must understand them with a reasonable assessment, careful review and consideration of the recognisable context. Here it depends on the understanding possibilities of an insured person without special knowledge of insurance law and thus – also – on his interests” (BGH, judgement of 25.06.2003, Az. IV ZR 32/03). At the time, an RSV had erred in law by stating that the exclusion (in ARB 75) “in the planning, financing and construction of (new) buildings” also applied to participation in a closed-end real estate fund (BGH, ruling of 19 February 2003, ref. IV ZR 318/02). No consumer has to reckon with the exclusion of actions for annulment of a decision concerning a WEG owner (AG Düsseldorf, judgement of 10.06.2015, Az. 23 C 17/15).
The Federal Court of Justice also considered the securities clause to be invalid: “The clause in general terms and conditions of legal expenses insurance “Legal protection does not exist for the protection of legal interests in causal connection with the acquisition or sale of securities (e.g. bonds, shares, investment units) and participation in capital investment models to which the principles of prospectus liability apply (e.g. depreciation companies, real estate funds)” is invalid due to violation of the transparency requirement. With regard to the interpretation of the ARB, he stated the following: “Technical terms which are not clearly defined terms in legal terminology cannot be used as an objective standard for the interpretation of insurance conditions according to the understanding of an average policyholder”, § 307 I 2 BGB (Federal Court of Justice, ruling of 8 May 2013, file no. IV ZR 84/12).
RSV cover in case of competing legal claims
Even if a certain contractual claim were not covered by the ARC (94), there is often also a tort: ‘The exclusion of the assertion of contractual claims for damages does not extend to the assertion of competing tortious claims for damages’. (LG Hannover, judgement of 16.10.1998, Az. 13 O 158/98). This applies accordingly to ARB-RU95 (AG Mönchengladbach, judgement of 17.02.2004, ref. 29 C 496/03).
Nonetheless, some of the RSV claims department’s staff members take the risk of whether the UN has a war chest, and in the end successfully claim the cover, because in most cases the insured would prefer to change the RSV
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published on 22.02.2016)
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Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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