What does a broker have to consider when switching to fee-based advice?

From the series of newsletters of the DHBW (Baden-Wuerttemberg Cooperative State University) Heidenheim on the topic “Mediation Law in Practice”:

At this point, lawyer Dr. Johannes Fiala, https://www.fiala.de, lecturer for insurance law at the DHBW Heidenheim, will answer your questions. Questions can be asked by emailing ott@dhbw-heidenheim.de.

 

Since 2008, the legislator has defined the professional profiles of insurance representative (agent), insurance broker and insurance advisor in the new VVG (§ 59).
clearly regulated: Only insurance advisors may professionally assist third parties in agreeing, amending or reviewing insurance contracts or in
advise on the assertion of claims arising out of insurance contracts or represent them out of court vis-à-vis the insurer, without having been advised by an insurer
Receive an economic benefit (broker and agent) or otherwise be dependent on him (agent).

Brokers and agents may
so they can’t do that without violating their registration status. However, for insurance agents and brokers are activities of another trade,
i.e. permissible as a management consultant (e.g. on personnel policy) or as a secretarial service. Also, there are probably exceptions with brokers “for old hands”,
that you have to fight through in court if necessary.

This leaves the broker with the option of § 34d GewO: “The licence granted to an insurance broker includes the authority to sell insurance to third parties who are not consumers,
to provide legal advice on the agreement, amendment or review of insurance contracts for a separate fee”, i.e. fee-based advice in the commercial sector.
In any case, the problem with fee-based advice is that it is a contingency fee and not a time-based fee. This then regularly requires
a so-called individual agreement in the legal sense with the customer, because otherwise the remuneration would not be enforceable at all.
A first “cross-check” on the question of what one is allowed to do in one’s own business field is offered by a look at the VSH conditions: In case of doubt, you should check the scope of cover
(depending on the activities) be (additionally) confirmed by the insurer.

 

Dr. Johannes Fiala

(DHBW Newsletter 02-2012)

Courtesy of www.dhbw-heidenheim.de.

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Dr. Johannes Fiala Dr. Johannes Fiala

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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