– How can legal assistance after a house search also have a mitigating effect? –
An insurance tied agent may seek advice from a management consultancy, for example, analyse his stocks in order to improve his sales – provided that the regulations on data protection and professional secrecy are observed, § 203 StGB.
Creative broker associations or broker pools have taken up the idea of a “management consultancy”. They promise an analysis for the agent – who wants to become a broker – of “his” portfolios (i.e. actually those of the insurer) together with other insurers as to how these can be re-covered after changing to broker status, with ready-made offers including new premiums with special discounts based on the re-coverage, which the still-agent then decides on before he terminates his agency.
Quick solution through certain coverage concepts
Improved terms and conditions and new insurance contracts are promised for customers. Sometimes also transitional financing, at “exciting” conditions. Whether the portfolios created by reroofing then belong to the pool or association or to the broker is another matter. In addition, an additional remuneration may be available; as a motivation to start working with the broker network or special pool. And last but not least, reference is also made to the cooperation with a law firm that is already very experienced in this area, should problems arise with the previous insurer. In this way, if necessary, a reduction in the penalty for wheels, quarters and slopes on slopes, wheels and quarters can certainly be achieved.
When the CID rings twice
If the previous insurer (VR) learns of the (possibly only alleged) illegal rerouting, an exemption is initially granted and all access to the previous customer data is withdrawn. In addition, a termination of the payment by instalments of the compensation claim for acquired customers – or of the company pension scheme, § 89 b HGB – will be effected – with reference to counterclaims with right of retention: The BoD in turn then also terminates without notice – sometimes ineffectively – with the aim of saving the compensation payment completely.
In addition, a declaration of discontinuance is almost always required – subject to punishment, of course. It is not uncommon for a criminal complaint to be filed at the same time – whereupon the state cavalry is called out for the seizure or confiscation of files and data.
The BoD will then file a lawsuit, because it wants to create legal clarity – as well as compensation for the loss of profit from the illegally poached portfolios, because of violation of the competition law of the insurance industry, § 9 UWG. In retrospect, even agents of structural expulsions who have been sued feel that such experiences were, in the course of time, a deliberate attempt to destroy their existence.
Limits of legal re-coverage – poaching customers of a competitor is generally permissible
Competition is part of the nature of commercial activities. It would be inadmissible for the still-agent to rely on more than his own memory, especially illegally copied customer data, because of the customers referred to the insurer (BGH, judgement of 14.01.1999, Az. I ZR 2/97). Even insurers who may have been happy to look the other way themselves, as the agent at the time covered the stocks to them, are protected – even if the agent may think that they must now bear without complaint if they are in the same situation.
It is also advisable to change the cover carefully; possibly not on your own letterhead with customer authorisation, and in any case not all at once as a major poaching campaign (OLG Karlsruhe, judgement of 20.03.1986, Az. 4 U 235/85). It will also be noticeable if the successive incoming cancellation letters all look pretty much the same. Quite a few customers are also willing to give information about the details of the coverages to a representative sent by the previous insurer, not only if they feel that this would be bad advice. Individuals also complain to the (state) data protection commissioner that the insurer must have passed on their data without permission, which then forces reactions.
Supporting customers to be enticed away in terminating the contract after contractual or legal deadlines is permitted (OLG Munich, judgement of 01.03.2012, Az. 23 U 3746/11). After all, providing the customer with better conditions, for example in terms of the terms and conditions or the premium level, is a core obligation of the insurance broker, and agents are not prohibited.
After the change of status, i.e. the change of profession from agent to insurance broker, the so-called competition guidelines of the insurance industry become meaningless – they apply, as it were, not to brokers but to agents (OLG Schleswig, judgement of 16.07.1999, Az. 6 U 28/99).
In order to ensure that one’s own conduct is later recognised as legal in court, a small compulsory exercise is often required – a significantly extended documentation; for one’s own file. Just as a lawyer said decades ago, “The wise businessman has his file ready for trial at any time” – and at best also for the prosecutor – for the hiring order, not for the indictment.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published on 17.01.2020)
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About the author
PhD, MBA, MM
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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