Only those who advise well are well protected

Customers have the option to waive consultation and documentation. Sample protocols note this option. But this advice is controversial and should be implemented only in exceptional cases.
With sample protocol authors, the clause “The customer expressly waives consultation and documentation” is often offered. These providers include, for example, software manufacturers (also with advertising about alleged liability security), associations, specialist authors specialising in “insurance broker law” – sometimes in an employment relationship with an insurer, pool or distribution, working groups with self-created certifications (as a source of licensing income) or management consultancies for insurance brokers. Widespread form liability trap: How widespread this form liability trap is, shows also the Internet search under www.google.de, if one enters key words such as ?consultation renouncement or ?documentation renouncement? Many insurance brokers are grateful for such assistance, but only as long as they do not know the legal background and their possible liability. It is astonishing that renowned insurers apparently advertise such void form samples as “certified and liability-proof”. And it is piquant that sometimes even lawyers are said to have been involved in such samples or their distribution. Due to the fact that most of the sample forms do not contain any reference to the possible risks, the insurance broker is sure of liability and the lawyer of an often hopeless recourse. The legal requirement for the waiver of documentation and advice: The law literally states: “The policyholder may only waive the advice or documentation pursuant to subsection 1 by separate written declaration, provided that the policyholder has been expressly informed by the insurance intermediary that a waiver may adversely affect the policyholder’s ability to assert a claim for damages against the insurance intermediary pursuant to § 42e.” The problem of intermediaries can be described in the following words of an association executive: “In a few years, we’ll know through case law what the government might have meant by its laws.” For decades, entrepreneurs have gladly tried to “screw their performance obligations and their responsibility towards zero”. The courts reacted to this with § 242 BGB (good faith). The legislator later created the AGBG (Law on General Terms and Conditions). Intermediary “forms and samples” are such general terms and conditions. The central legal standard at that time became § 9 AGBG with the following wording: § 9 General clause (AGBG) (1) Provisions in general terms and conditions are invalid if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith. (2) An unreasonable disadvantage is to be assumed in case of doubt if a provision n is not compatible with essential basic ideas of the legal regulation from which it deviates, or n restricts essential rights or obligations resulting from the nature of the contract in such a way that the achievement of the purpose of the contract is endangered. The beauty of this legal standard is that it is also applicable to general merchants and entrepreneurs. Applied to the insurance broker, this means that he can never exclude advice “across the board” and even less so “through forms”. For the basic idea of the insurance broker contract are the duties of caretaker, as cardinal and primary duties. by the way, the liability can also not be limited in such a way “across the board” to, for example, one million euros: Such sample clauses are also popularly circulated, but these are also useless. No consulting exclusion by insurance broker forms The Federal High Court (BGH) clarified by its judgement of 20 January 2005 (Az. III ZR 251/04) that the form-like exclusion of consulting obligations is ineffective. The BGH explicitly referred to the above-mentioned § 9 AGBG even in the lead sentence. For the insurance broker practice this means that all advice waiver forms are invalid. And insurance companies, which approve such forms, seem to have little idea of the legal bases. Risk: Exclusion of documentation The insurance broker often only has his hand file available in the liability process, which includes documentation. Even the insurance broker who is not familiar with the law should be aware of the guiding principle of the judgement of the Federal Court of Justice (BGH) of 22 May 1985, File No.: IVa ZR 190/83. It reads as follows: “The insurance broker is the custodian of the insured person’s insurance relationships; therefore, he bears the burden of proof that the damage would have occurred even if he had fulfilled his duties to inform and advise in accordance with the contract. Thus, if the insurance broker waives the documentation, he only endangers himself by waiving the most important piece of evidence in the liability process. In practice, it is hardly conceivable “that a waiver can have a detrimental effect on the policyholder’s ability to assert a claim for damages against the insurance broker under § 42e.” The opposite will be true, as a liability case against the insurance broker without documentation will be successful in the event of doubt due to the shift in the burden of proof. Tips from insurance brokers for insurance brokers Even with the waiver of consultation, as otherwise with the insurance brokerage contract, it requires individual designs and sound legal training to be able to deal with this topic correctly. Insurance broker Ralf W. Barth says: “I wonder whether the providers of a documentation waiver are actually aware that, according to today’s standard VSH terms and conditions, in the event of a documentation waiver in the event of a claim, the pecuniary loss liability insurers could have the option of refusing cover.” If the VSH insurer were to rightly deny coverage in the event of a claim due to a lack of documentation and true to its VSH terms and conditions, the question arises as to whether the provider giving this incorrect advice or issuing the corresponding waiver will pay for it. Hopefully then at least he is sufficiently VSH-insured. The position of insurance broker Eberhard Ressel (Motivationscenter) is: “The waiver of advice should always remain the absolute exception. In an intact customer relationship there is for the broker only a complete consultation. Only if it knows the customer correctly well, it can become fair the European Union mediator guidelines. There it is stated that the broker must offer the customer suitable contracts which correspond to his wishes and needs. The broker can only meet this requirement with a sophisticated working method. If, nevertheless, a waiver of advice is agreed, the broker should always write down the client’s arguments exactly as the client has formulated them. Important are open fields in the form, in which one can write free texts. These are missing in almost all forms, but are very important from a liability point of view! For example, in the forms of the Working Group on Intermediary Guidelines, these open fields are completely missing.” And insurance broker Andreas Bosl has the following opinion: “Before waiving documentation and advice, the insurance broker should settle his ‘last things’ and consider an anticipated succession or a charitable trust. After all, in the event of a claim, he will hardly have any assets left to dispose of freely in the event of subsequent insolvency.” Insurance broker Hermann Siebenhaar says about the problem: “The call for uniform broker contracts leads to a desolate situation for the insurance broker – i.e. liability. The call for uniform protocol models entails the same consequences. The exclusion of advice, with whatever text, violates the main obligations of an insurance broker – except, of course, single-company agents and multiple agents.” And management consultant Dr. Wolfgang Drols adds: “In my opinion, the waiver of advice is only intended by the legislator for absolutely exceptional cases. The better protection against damages is good advice.”
Dr. Johannes Fiala, lawyer (Munich), mediator, certified financial and investment advisor (A.F.A.), www.fiala.de
(versicherungsmagazin 9/2007, 64)
Courtesy ofwww.versicherungsmagazin.de.

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Dr. Johannes Fiala Dr. Johannes Fiala

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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