In a judgment of 13 September 2007, the Higher Regional Court (OLG) of Celle ruled on the consequences of incorrect advice given to employees regarding the modalities of continuing an insurance policy taken out as part of an employee-financed occupational pension scheme in the event of a change of employer. The employer had taken out insurance policies with a pension fund under a group insurance contract. Before taking out his insurance policy, the plaintiff employee asked the insurance intermediary about the consequences of a possible change of employer. The intermediary admitted that, when asked about this, he regularly said that the contract could be continued on a one-to-one basis with the new employer in the same constellation. To the fact that the height of the achievements and the premium depend on the tariff agreed upon in each case, it pointed out only with special demand. According to the OLG Celle, however, this would always have been necessary, so that the insurer must now continue the contract on identical terms. The insurer is liable for performance to the extent that the insurance agent presented the contents of the insurance to the policyholder before conclusion of the contract. The liability for performance does not only apply if the agent positively gives false information, but also in case of an omission, if the agent recognizes the policyholder’s ideas, which are recognizably incorrect for him, without contradicting them and without correctly informing the policyholder or the employee as the beneficiary. The insurer is also liable for the statements of its representative if it should have been obvious to the representative on the basis of the circumstances that the policyholder was mistaken about a material circumstance of the contract. Although only the employer is the contractual partner of the employee in the case of deferred compensation, the insurer is liable in this respect for false information provided by its representative to the employee. The judgment thus strengthens the legal position of the employer, for example, also in the case of incorrect advice (of the employee) by insurance agents in connection with the settlement of the acquisition costs associated with the insurance contract, which can lead to liability of the employer due to initially non-existent or very low surrender values (cf. Judgment of the Stuttgart Labour Court of 17.01.2005, Case No. 19 Ca 3152 / 04 – Employer’s liability for damages due to failure to inform the employee about the consequences of zillmerisation – as well as of the Munich Regional Labour Court of 15.03.2007, Case No. 4 Sa 1152 / 06, not legally binding – Inadmissibility of zillmerised tariffs in the case of deferred compensation). �
Thomas Keppel, Attorney at Law, Dipl.-Jur. Univ., Law Firm Dr. Fiala, Munich
(BankPraktiker 1/2008, 6)
Courtesy of www.bankpraktiker.de.