OLG Frankfurt: No insurance broker liability without continuing obligation

Published on 30.04.2007

*by Dr. Johannes Fiala, Lawyer (Munich), Mediator (Univ.), MBA Financial Services (Univ.Wales), MM (Univ.), Certified Financial and Investment Advisor (A.F.A.), EC Expert (C.I.F.E.), Lecturer in Civil and Insurance Law (Univ. of Cooperative Education), Banker (www.fiala.de)
“Facts do not cease to exist just because they go unnoticed” (Aldon’s Huxley).
The OLG Frankfurt has dismissed the action of a customer against his insurance broker by judgement of 05.07.2006 (Ref. 7 U 68/05).
The court explained that the insurance broker sued for damages did not have a continuing obligation to the customer. This would only have been the case if, for example, the broker had taken over “portfolio management”. However, the insurance broker had not concluded a written contract with corresponding content. The court assumed that the broker also did not receive a “servicing commission” and therefore there was no continuing duty to “adjust coverage and monitor the risk property.”
With the execution of the originally given brokerage order, i.e. the mediation, the case was settled for the broker. The plaintiff customer was also unlucky because he could not prove in court that the broker had been informed by him of a new fact (with the consequence of a gap in cover and a duty of disclosure).
Tip: In numerous brokerage contract models, the brokerage obligations are structured as a continuing obligation. This unnecessarily expands the insurance broker’s liability. In this respect, distributors and pools that distribute “half-finished” broker contract models are generally regarded as uninsurable “cluster risks” in property damage insurance.
(experten.de on 11.04.2007)
Courtesy of www.experten.de.