“What does a broker need to consider, and what does an agency owner need to consider, when switching to fee-based advice?”
Since 2008, the legislator has clearly regulated the professional profiles of insurance representatives (agents), insurance brokers and insurance consultants in the new VVG (§ 59): Only insurance advisors may professionally advise third parties on the agreement, amendment or review of insurance contracts or on the assertion of claims arising from insurance contracts or represent them out of court vis-à-vis the insurer without receiving an economic advantage from an insurer (broker and agent) or being dependent on it in any other way (representative). So brokers and agents are not allowed to do that without violating their registration status. For insurance agents and brokers, however, activities of a further trade, e.g. as a management consultant (e.g. on personnel policy) or as a secretarial service, are permissible. Also, there are probably exceptions with brokers “for old hands” that you have to fight through in court if necessary. For the broker, the option of § 34d GewO remains: “The licence granted to an insurance broker includes the authority to provide legal advice to third parties who are not consumers 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 you are allowed to do in your own field of business can be found in the VSH conditions: In case of doubt, the scope of coverage (depending on the activities) should be (additionally) confirmed by the insurer.
Dr. Johannes Fiala
(DHBW Newsletter 02-2012)
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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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