Even offenders sometimes apply for benefits under an occupational disability insurance policy. In an exclusive commentary, attorney Johannes Fiala and actuary Peter A. Schramm explain how these are to be legally classified – and when insurers are obliged to pay benefits.
What are the effects of insurance conditions of the occupational disability insurance (BU), which were intended for normal cases but are now applicable to a professional criminal? Can the professionally criminal marijuana planter, for example, after the appearance of an incurable hemp allergy, be referred to a non-criminal profession as a tobacco grower, or must he switch to LSD production, because only this corresponds to his previous criminal status? Joking aside, the question arises as to whether the concept of life position also distinguishes between the status of non-criminal and criminal and whether the referral preserves income and status.
Operation of a marijuana plantation as a profession
Professional Criminal is a legal term from the Weimar Republic, which criminologists introduced in the 1920s for repeat offenders. This is based on the thesis that repeat offenders practised the crime as a profession. The preventive detention order of 13 November 1933 defined as a professional criminal anyone who had been sentenced at least three times within five years to at least six months imprisonment for an offence committed for profit. Even today a career as a criminal is recognized as a profession.
Anyone who does not run a marijuana plantation solely for his own consumption at home is acting professionally (OLG Cologne, decision of 1 March 2016, ref. 9 W 6/16), especially if the plantation “also served for subsistence”. Private liability is then also not liable for fire damage because it is caused professionally, the court found. But what is the situation with regard to BU?
BU by offence without cover – but otherwise insured with offenders
Typically, there is no BU insurance cover if the occupational disability is caused by the insured person’s intentional execution or attempted execution of a criminal act. Anyone who becomes mentally ill because he or she can no longer bear the nervous strain (due to the danger of a police raid) would then be unable to work and receive a pension, if insured with entitlement to a BU pension.
In fact, the Karlsruhe Higher Regional Court (OLG) ruled (judgement of 3 March 2016, file no. 12 U 5/15): “A cause of occupational disability through the intentional or attempted execution of a criminal offence does not exist if the insured person suffers psychological damage as a result of criminal prosecution measures (house search, pre-trial detention) which make it impossible for him to carry out his previous professional activity.
Anyone who has an accident on their bike on the way to the swimming pool and thus becomes unable to work as a marijuana grower will receive their pension. If necessary, the insurer could refer to the production of amphetamines, designer drugs or LSD because of the life position rather than the legal cultivation of mushrooms in the cellar. The affected person no longer has to carry heavy watering cans and bend down for his plants in view of the consequences of his bicycle accident. The opposite may apply if he falls by bicycle when delivering his illegal goods, especially when fleeing from the police.
However, it is not at all possible to refer strawberry plantation farmers who are unable to work to the establishment of a domestic marijuana plantation, as this would be criminal, unlike strawberry cultivation, and thus a different occupational status, even if their income were higher. For the incapacitated marijuana grower, however, nothing changes in his life as a criminal if he produces other illicit drugs, so he should be referred to this. To counter this with the argument that this professional activity is not permitted would probably not be effective.
Insurance companies must evaluate professions according to their conditions, not morally
Finally, a BU pension is also payable as long as one is incapable of working and is in prison (OLG Karlsruhe – judgement of 3 March 2016, file no. 12 U 5/15). A criminal financial services provider experienced a house search at his home and underwent psychological treatment until his arrest: “His illness, however, became worse after his arrest and subsequently became a serious mental illness, which has made it impossible for him to work in his profession to this day.
The continued payment of the BU pension after dismissal would be an argument for a good prognosis not to become a criminal again and thus for early release. The OLG was thus of the opinion that, statistically speaking, crime does not promote the risk of mental illness – the BU was therefore not an uninsured consequence of a criminal offence. The court emphasised that insurers must refrain from making a moral assessment when applying their insurance conditions.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.fondsprofessionell.de (published on 03.03.2017)
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About the author
Dr. Johannes FialaPhD, 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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