– When a right to information does not exist, and no right to accounting –
If a policyholder assumes that he/she is entitled to a higher valuation reserve on expiry of a capital-forming life insurance policy than that paid out by the insurer, he/she may have a claim for information against the insurer.
The Federal Court of Justice has at least overturned a ruling to the contrary by a lower court (BGH, ruling of 2 December 2015 – IV ZR 28/15). But is there really a right to information?
According to the BGH, the lower court must first examine more closely whether a right to information exists. It does not exist if the plaintiff does not even claim that he will demand a higher payment with the information provided (this can already be read in the BGH decision of 11 February 2015 – IV ZR 213/14). A right to information also does not exist if a payment cannot be made in the first place, for example if the subscription right of a life insurance policy was revoked in time and the former beneficiary has nothing (any longer) to expect in any case. Troublemakers can also be kept off your back by invoking the ban on harassment, § 226 BGB.
Furthermore, the claim for information does not exist if the claim for information is too vague, even if the claimant wants to achieve a higher payment. This was the opinion of the previous instance, but the Federal Court of Justice took a different view because it applied a lower standard to the certainty of the claim to information. It also does not exist insofar as the information can be taken from (partly) published or easily accessible sources, even if one would have to obtain deposited annual reports from the register court. The Federal Court of Justice has already decided on the numerous cases of unwinding of life insurance policies due to revocation under enrichment law, where the UN itself must, according to the Federal Court of Justice, explain the uses – which is hardly possible without an actuarial expert opinion.
The previous instance must therefore examine all further requirements to determine whether the right to information exists. Questions of secrecy, among other things, could stand in the opposite direction, as the BGH has already ruled similarly and more frequently. However, the respective interest must also be weighed up more carefully, i.e. whether the interest in secrecy – for example with regard to the concretely feared additional disadvantages – weighs more heavily than the interest in obtaining information. In the end, the claim for information may be rejected – but in accordance with the requirements of the Federal Court of Justice, it has been thoroughly examined and justified.
Necessity of a conclusive complaint
A claimant must demonstrate conclusively that a higher claim for payment is likely to exist. However, the Federal Court of Justice considers this to be possible in principle here, and this is sufficient for it without additional requirements, except that the plaintiff asserts it at all. It remains questionable, however, whether a claim for information can be so easily justified not only for the calculation of the participation in the valuation reserves but also for the calculation of maturity benefits and surrender values.
The previous instance had made “excessive” demands: “It must be taken into account here that procedural law is intended to implement substantive law, but not to prevent its enforcement” – the Federal Court of Justice commented on this. The interests of both sides must be weighed up on a case-by-case basis.
It would not be sufficient to simply present any claim for payment as possible as a plaintiff, so to speak “into the blue”. Merely to assert a (theoretically) possible claim for payment without any representation of probability in order to justify claims for information is very close to the evidence of the investigation. With regard to the review of maturity payments, surplus participations and surrender values, many courts have rejected this if the UN has not explained why a higher payment claim is to be assumed.
Actuarial report renders the right to information superfluous
It would be advisable for such plaintiffs to seek advice from actuaries’ professional associations, the expert department of the Chamber of Industry and Commerce or university chairs of actuaries with relevant experience – already for the extrajudicial support of their own lawyer. Regularly, actuaries already have appropriate data collections, or information is often provided by the insurer (BoD) “for review by an actuarial expert” on a voluntary basis and without the need for legal action. Some life insurers have even already covered such appraisal costs for “good customers” – sometimes a legal expenses insurance company is willing to do so as a gesture of goodwill if the lawyer shows that this – presumably – will save far higher legal costs. If errors are discovered – which happens more often than many life insurers think – they are readily corrected by the insurer.
Many data – e.g. the annual surplus declarations – are included in the annual reports, as are explanations of actuarial methods, zillmerisation, mortality tables and interest rates used, discounting, the method of participation in the valuation reserves and – at least at year-end – their amount. This means that the BoD would not have to disclose this data in court, as it is already publicly known. But if you ask him nicely, you’ll get all this neatly put together – though not just as a mathematical layman who doesn’t know much about it and then perhaps has more questions than before. Otherwise, an actuary will have to spend perhaps more than two hours on this data collection. If doubts or discrepancies then arise during an assessment, the BoD regularly provides more detailed information.
It is not uncommon that the action for disclosure against the BoD could have been spared for the time being. This can happen, for example, if an actuary or lawyer determines that the agent actually made a consulting error because the BoD calculated the contract correctly, but it did not meet the client’s needs at all. In the end, a rescission due to incorrect advice should also be more interesting from an economic point of view than an action for disclosure against the insurer.
Delegation of responsibility by insurance brokers
Brokers should know that customers can check (or have checked) the LV settlement – expiry performance, revocation, termination. A simple forwarding of the BoD’s statement of account to the LV customer (VN) by the broker, possibly with the remark that no objection was found, leads to liability. Often a lawyer or expert will then check later and still find objections. If legal claims against the BoD are then statute-barred, the broker is asked what exactly he had actually checked – and often also why he did not document it?
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published in Experten Report, issue 03/2016)
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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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