*by Dr. Johannes Fiala, Lawyer (Munich), Mediator (Univ.), MBA Financial Services (Univ.Wales), MM (Univ.), Certified Financial and Investment Advisor (A.F.A.), Lecturer in Civil Law and Insurance Law (Univ. of Cooperative Education), Banker (www.fiala.de)
Regional court Regensburg: Insurance broker is not liable
The Regional Court (Case No. 1 O 113/07) dismissed the action against an insurance broker on the grounds of alleged incorrect advice in its judgment of 16 April 2007. In its reasons, the court stated that the insurance broker had provided his client with “correct information” and “accurate communication”. Therefore, the insurance broker is not liable for misinformation.
What is a vehicle subject to registration ?
A roofing company insures machinery breakdown with the insurance broker. Machines are cranes and other superstructures, such as inclined elevators and lifting platforms – somehow the tiles have to get onto the roof. The broker discusses the terms and conditions of the insurer with the client: “Vehicles subject to registration” are not insured. The roofer uses such a vehicle, and builds the crane on top of it, on another vehicle a lifting platform or an inclined elevator. Later there is a case of damage – the vehicle with the crane falls down and is destroyed – the crane !
The court does not see the crane as a vehicle !
After the insurer refuses to pay the compensation, the policyholder sues the insurance broker – and loses. The competent judge correctly recognizes that a crane superstructure, or the superstructure of other aids (lifting platforms, inclined lifts, etc.) is not an “essential component”, § 93 BGB. This is because it is not necessary to destroy the motor vehicle in order to separate the body from the vehicle. The insurance broker had correctly pointed out that the vehicle had to be insured separately – but as the truck was “ancient”, the fully comprehensive insurance of the truck made no sense: only the crane superstructure was properly insured by the crane breakage insurance.
Legal knowledge of the broker relieves him of liability:
The insurance broker had correctly interpreted § 2 number 2c AVG in terms of insurance law: The court wrote in its reasoning “Such technical equipment is thus insurable and also insured pursuant to § :2 item :2 c AVG 2000.” This raises the question of how the insurer could have even come up with the idea of not settling the claim.
The plaintiff’s attorney will now sue the insurer next: with notice of dispute and joinder of the insurer, the chances are probably pretty good. In this litigation, the insurer was “written into the record” that the loss was insured. But why did the plaintiff’s attorney sue his own broker first? Who will now reimburse the plaintiff for the costs of this pointless litigation?
Scorched earth by the insurer ?
Would anyone be surprised if this insurance broker is now covering the risks? Is it part of the custodian’s duties to include regulatory practices in the selection of an appropriate insurance carrier? The knowledge of the conditions, the correct insurance-legal interpretation, and the exact documentation of own consultation are necessary, so that in the liability process according to the reversal of the burden of proof a good basis and chance for a complaint dismissal exists.
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About the author
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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