“Is an agent permanently employed by a brokerage firm a broker or an agent bonded (to the brokerage firm)? What needs to be considered with regard to pecuniary loss liability (VSH)?”
A salaried broker, in his relationship to the brokerage firm, is at best an agent (of the broker) – but never a broker, because the “sub-broker” does not exist. A broker is the one who has or has had a (own) direct brokerage contract with the customer – a “sub-broker”, however, would have just no direct own connection through a brokerage contract to the customer. Thus, even the “free agent” of the broker who works for a broker’s office and, for example, appears with the business card of the broker, cannot be a broker in this function, but only an “agent of the broker” or employee of the broker. In addition, however, such permanent employees may well run their own office or business. This then requires a corresponding IHK license as an insurance intermediary. For agents of an insurer and/or broker’s office the following is still important with VSH: Numerous usual “liability exemption declarations” of the insurers hardly offer a sufficient protection, because in the case of middle or rough negligence a recourse always threatens also here. Brokerage firms should check their inclusion in the VSH for their self-employed agents; the VSH cover does not regularly include the activity for a brokerage office. There is precisely no legal obligation to report and insure all employees (in the VSH of the brokerage office). Only those who are licensed by the IHK are subject to compulsory insurance in the VSH. Again and again it can be observed that agents – but also intermediaries under a “liability umbrella” – do not know whether and which risks are insured with which VSH at all. This question arises at the latest when a dissatisfied customer takes the intermediary directly into liability and sues him. This is usually the case if the “distribution company” has previously become insolvent.
Dr. Johannes Fiala
(DHBW Newsletter 08/2010, 2)
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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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