Why training and sales managers are personally liable in private health insurance sales. An analysis by attorney Dr. Johannes Fiala and mathematician Peter A. Schramm.
Landauf Landab insurance brokers, independent financial service providers and bank advisors complain that at sales events held by trainers, they actually only experience positive product features through colourful pictures, pretty flyers and nice words. Negative product characteristics, especially risks and side effects, are hardly experienced there. So it’s not surprising
sales managers and sales directors are only too convenient when primarily uncritical financial intermediaries are sought. An all too good education could mean scruples, and thus hinder the painless sale of products. Whoever then takes the trouble to read the small print himself, will in the end hardly be able to find a job and earn nothing more? Because where the trend towards the proverbial blonde has not yet been established in the call centre or sales department, pressure from the sales management can only help to a limited extent.
Personal liability for intentional immoral damage according to § 826 BGB
A central case group for personal liability of sales and training managers are false information and/or expert opinions – especially in training courses or in sales documents. The classic case of such cases is the protective assertion that the X-structured distribution, the Y-broker pool or the Z-finance house has its own
carried out product testing (either himself or through a commissioned expert). Such sales myths come to light when the appraisal is questioned. In most cases, it does not exist, or, after reading it carefully, says quite different things from what it was trained to say.
Liability for claims “into the blue
The OLG Karlsruhe (judgement of 22.07.2004, Az. 1 U 58/04) sentenced the head of a distribution company in particular for playing down negative press reports. He completely concealed the investigations of the StA against the product provider.
The OLG Stuttgart (judgment of 30.12.2008, Az.19 U 94/08) sentenced the trustee of an investment model because, among other things, he had not informed the investors of investigations by BaFin on suspicion of unauthorised banking transactions by the investment company. If you take a look around private banks, you will be surprised that for such investment models the BaFin approval in question is still even mentioned somewhere in the prospectus documents.
This category also includes the untruthful assertion of the training instructor that a product is subject to a deposit guarantee scheme with the product provider (OLG Celle judgement of 15.12.2005, file no. 11 U 107/05), if it can be expected that this lie will be passed on by intermediaries.
Management board members and managers are liable for training courses that are running at a loss
Just as immoral was the statement at a training course that the speaker (BGH judgement of 28.02.2005, file no. II ZR 13/03) deliberately pretended, contrary to intent, to want to take personal responsibility in the event of the failure of a capital investment. This was then passed on to the customer by the agents, who then signed the contract with the agent, trusting in this seriousness.
It was the downfall of a board of directors (LG Memmingen, judgement of 05.02.2009, Az. 3 O 894/08) that they had deliberately trained intermediaries in such a way that they simply ignored central risks of the advertised product. From this ruthlessness towards the risk-bearing capacity of the later customers by presenting a product as risk-free, the court concluded that it was immoral. Since then, many a bank board member has also been standing on the top floor ready to take the plunge, because many customer advisors are also systematically pushed into selling products in a semi-informed manner.
In a judgement of 26.01.2009 (OLG Munich, Az: 21 U 3291/09) the head of a distribution company was sentenced according to § 826 BGB: The Higher Regional Court considered it proven that certain intermediaries were deliberately trained over several levels of a distribution structure in such a way that risks in the mediation were played down. In addition, the trivialisation had been the central aim of the training courses.
The Higher Regional Court of Hamm (judgement of 25.02.2010, file no.: 28 U 78/09) also considers training which attempts to trivialise product risks or does not even mention them at all to be intentionally immoral damage.
Hopefully it will not be as bad as it already is (Karl Valentin)
The OLG Koblenz (judgement of 21.10.2005, Az. 8 U 1295/04) sentenced an insurance broker who had arranged a fund-linked pension insurance for a customer for old-age provision in the amount of 1.05 million, although the customer could only invest 270,000 DM from the sale of a house. The
The agent had presented the exemption from contributions to the fund policy after the initial payment of DM 150,000 as unproblematic. He did not tell the policyholder that this results in a much higher commission and that losses are incurred due to high costs and cancellation deductions when premiums are waived.
The court did not rule on immoral damage, but on simple liability for fraudulent damage, because the agent had made the mistake of assuming that his commission would only be calculated from the insurance premium actually paid.
Freelance PKV speakers for agent entertainment can also be liable
Nationwide, certain entertainers are hired by the private health insurance sales force to promote the change of insurer in private health insurance. Central risks, such as the loss of ageing provisions, are deliberately swept under the carpet. According to the motto: “give everything away and move to Monaco, people are richer there”, it is claimed that with the new insurer, the customer immediately has a share in an even much higher ageing provision, so that one even gains something by changing to it. Not only the semi-knowing slogan maker, but also the trainer at the pool or insurer is liable for this. All in all, the prospects are good that, with the help of the employment agency, we will be able to conquer new fields of activity for our personal future in the morning on the one hand and in the evening on the other side of the motorway to Basel, as long as the asparagus season continues.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.cash-online.de (published on 29.01.2020)
www.goldseiten.de (published on 03.02.2020)
www.submissionsanzeiger.de (published in the “SubmissionsAnzeiger Nr. 32 on 14.02.2020)
www.pt-magazin.de (Published on 14.02.2020)
www.experten.de (published on 19.03.2020)
www.experten.de (published in the Expert Report 03/2020, pages 64 and 65 under the heading: Why training and sales managers are also personally liable in private health insurance sales)
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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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