(expert-network) Mr. Fiala, brokerage contracts
\nwill be from pools, working groups,
\nAssociations and distributors as a service
\noffered. From your point of view.
\nany abnormalities?<\/p>\n
(Johannes Fiala) I noticed,
\nthat numerous sample contracts
\ncontradict each other in substance. Spotlight
\nResearch shows that
\nany text samples from form books
\nwere written off. Always
\nclauses are to be found again and again, which
\nyears or decades ago by the
\nJurisdiction as ineffective
\nhave been designated. An example would be
\nthe clause that “the liability of the
\nBroker time-barred after 3 years”.
\nThe rule is, unfortunately, that even not
\nexplains which contract, when
\ncan be used safely. Recently
\none broker reported that his association
\ntwo different brokerage contracts,
\nfrom the pen of two law firms
\noffers: Each firm is to sign the contract
\nof the other office as faulty
\ndenote. The association may
\nnot judge the matter, and offers after
\nas before two contracts, of which he
\nknows that at least one other
\nProfessional lawyer on the “risks and side effects”
\npointed out. An
\nreliable adhesion?<\/p>\n
How is that to be understood? We read
\nagain and again in brokerage contracts that
\nthe liability of the insurance broker
\nis limited to 1.0 million. Is that a
\nProblem?<\/p>\n
Yes, and I read that VSH brokers have such
\nClauses with the words “There are
\nno BGH ruling on the unification of the
\nRecommend maximum liability amount”.
\nFrom a VSH broker, I would expect,
\n…that he has read the most popular textbooks…
\nto his profession: there he would have
\nthat such clauses
\nare ineffective 99% of the time.
\nIf the VSH broker has the usual
\ndoes not know the duties of a broker, and also
\ndoes not know whether an intermediary
\nits risk effective or ineffective
\n…how could such a
\nVSH broker then the existing risk
\nrecognise, estimate with the mediator
\nand properly insured?
\nWho would have any confidence in that?<\/p>\n
How then can a pool proceed that
\nknows that his contracts are invalid
\nare?<\/p>\n
Well, the first thing I’d do is go to the rework room.
\nand give me a
\nseek an independent opinion.
\nFirst, I would make such patterns out of
\nthe Internet, because even from
\nsuch publications may
\na liability. The pool members
\nI would also inform. The
\nReplacement of partially ineffective contracts
\nthe pool members will also
\nCost money and time: This I would
\nthen carefully document – the
\nThe costs will then probably be paid by the insurer
\nof the author.<\/p>\n
What considerations are reasonable,
\nif I can limit the liability to
\nto limit the maximum amount?<\/p>\n
Let’s stick with the pool for now.
\nSample Contract. The consideration
\nwill be how many times
\ncontract is used, with which
\nTurnover and with what volume of losses
\nas a risk typical for the contract
\nis to be expected. Provided that in this amount then
\ninsurance coverage exists,
\nliability can also be based on
\nrestrict. However, the preliminary question
\nwhich the further conditions for effectiveness
\nare for the fact that
\nsuch an agreement later to a
\njudicial review actually
\ncan withstand?
\nIf the law firm has only one compulsory insurance policy
\nin the amount of 250,000 euros results in the following
\nInvoice: If the pool has 1000
\nmembers, and sets each member’s
\ncontract “only” 100 times, this results in
\n“according to Adam-Riese” a mathematical
\npro rata coverage of 2.50 Euro (i.w.:
\ntwo-euro-and-fifty-cent). And that
\nis supposed to be appropriate?
\nFor the VSH insurance broker
\nthings look similarly complicated.
\nHe must investigate the risk and
\ncheck. At the same time, the intermediary’s
\nexisting risk easily exceeds the statutory
\nExceed minimum mandatory coverage.
\nDidn’t the VSH broker here
\nclosely examined or his work of persuasion
\nnot performed, he puts
\nhopefully (via his VSH coverage).
\na kind of reinsurance for the
\nIntermediary?
\nHowever, erroneous statements are also typical
\nfrom intermediaries, like “I do
\nno mistakes.”, “I’m not liable because
\nI don’t have a written brokerage agreement
\n“I’m still liable…
\nnot.”, “My insurance today
\nalso covers the past.”
\nIf only the statutory duty coverage
\ndesired, i.e. the actual
\nRisk in probably 95% of cases
\nwith the advisor or intermediary does not
\nis discussable, then the
\nQuestion, whether and how the VSH broker
\nsave from future recourse
\ncan. Later on, every mediator
\ngladly because of a coverage gap to
\nkeep his VSH broker, even if
\nthis by telephone only with difficulty
\ncan be reached.<\/p>\n
In what can then further errors of a
\nVSH broker exist?<\/p>\n
So there would be, for example,
\nthat the VSH broker does not
\nStationery, doorbell sign, internet presence,
\nphone book entries, etc.
\nSome person is referred to as an “employee”
\nbut is in fact after
\noutside a “partner” (pillion according to the
\nAHB). This then inevitably leads to
\noften to underinsurance, and in the
\nIn the event of a claim, the VSH insurer
\nits benefits under the AHB simply
\nto a fraction.
\nOr take the case of the
\nMultiple agents (according to the content
\nof sales connections with insurers),
\nbut who calls himself a broker
\nis designated: Thus, in case of doubt.
\nexactly no VSH coverage, because a
\nInsurance for a broker exists –
\nbut not for the sales connections
\nas an agent. My point is,
\nthat not only the contracts with all
\nEmployees viewed by VSH broker
\nbut also the
\nwith the product providers. If the VSH broker
\ncan’t tell the difference,
\nbecause he or his staff cannot do so
\nthe intermediary is, in case of doubt
\nmisinsured. As a result
\nhe can take part or all of the cover,
\nwhich, of course, often only happens
\nwill come up.
\nIt certainly makes sense to look at the
\nBurden of proof for the duties of a custodian
\nto be aware. Who as VSH broker
\nthe risk situation of the client\/intermediary
\nbe unbiased
\ncan or will, is in fact
\nas reassurance of his wrong or
\nunderinsured customers\/intermediaries
\non. One way out, for example, would be,
\nto a separate corporation
\nto evade, which only
\nAgent activity. The insurance broker
\nHermann Siebenhaar has
\nonce described the situation this way:
\n“The necessary sum insured
\nthen results “almost” by itself from
\nthe comprehensive risk assessment, as
\nthe risk was recorded individually
\n(Consultation Protocol). Can an insurance broker
\n…he shouldn’t have his
\nI’m going to quit my day job!”<\/p>\n
Are there any other important cases where
\nthere is no cover with the intermediary?<\/p>\n
The most important point is often the “knowing
\nBreach of Duty.” Think of
\nthe intermediary, who together with the
\ncustomer decides to give the PKV insurer
\nto conceal a back problem
\n(pre-contractual duty of disclosure). With this
\nin the event of a claim, the intermediary owns
\nno VSH cover, but
\nis liable only privately and personally. Whether the
\nPKV insurer the contract later
\nor for the previous illness that was not disclosed.
\nsimply does not perform, stands
\non a completely different sheet – a
\neconomic consideration by the insurer.
\nAnother fine point concerns
\nthe fee-based advisory service: the intermediaries
\nwill certainly be watching closely to see if
\nthe staff of the consumer centres
\nall an admission at the IHK
\npossess. The case law will
\nalso deal with whether the fee consultant
\noverprice a net policy
\nmay, without any reference to the fact that
\nthere may be other cheaper products
\non the market – which do not
\nnet tariffs (duty of disclosure).<\/p>\n
What important points would there be after
\nthe case law on limitation of liability
\n…to know?<\/p>\n
Since the 50th Jurists’ Congress in 1974
\nthat even merchants are becoming more
\nor less from “inappropriate
\nDisadvantages” similarly protected
\nas consumers or non-merchants:
\nThese include provisions,
\nwhich essential contractual rights
\nor obligations in a way that is compatible with the purpose of the contract
\nin a dangerous way.
\nIn this area, you can’t
\ntimes the liability for simple negligence
\nin the case of vicarious agents.
\nThis applies accordingly to contractual
\nprincipal obligations, as well as for such
\nAncillary obligations which, according to the purpose of the contract
\nof particular importance
\nare. The 1985 guardianship ruling
\nsets the direction of travel here. The
\nIn 2006, the BGH ruled that an intermediary clause for
\ninvalidated, according to which a
\nIntermediaries “only mediate and do not
\nwanted to advise”. The restriction of
\nLiability only for slight negligence
\nfails when it comes to essential
\nobligations, the fulfilment of which is necessary for the proper
\nContract execution
\nare necessary, and the contractual partner
\nwas allowed to trust in it. This applies
\nby the way also in commercial traffic,
\nparticularly in the use
\nof model contracts. Included herein
\nare also such secondary obligations,
\nwhich are foreseeably dangerous
\nparticularly high damage
\nbrings. With the insurance broker leads
\nits particular expertise and the
\nCustomer’s expectation of trust in the
\nIneffectiveness of any exemption from liability,
\neven in the subset of
\nLimitation of liability only the
\nAltitude.
\nThese are examples from a wealth of
\nBGH rulings, without any claim to completeness.<\/p>\n
Can’t I just give the customer
\n…and ask him to report himself,
\nif he has a more extensive
\nVSH protection by the intermediary
\nwishes?<\/p>\n
This already fails because of the fact that the
\nIntermediary an expert in risks and
\nthe mastery of which is – at least
\nwith the insurance broker is of it
\nto be assumed. Often only the intermediary can
\ncover the risk (of his misadvice),
\nso insure. For the customer
\nof an insurance broker
\nthere is usually no separate
\nPossibility. The only exception would be,
\nthat the “normally feared
\nDamage” (also the amount !)
\nthrough an existing VSH cover
\nis actually insured, and the customer
\nthe conclusion of an additional
\nVSH cover particularly recommended
\nhad been; but only if the
\nCustomer the scope of the insurance interest
\nis the best judge of that:
\nThis is the situation when the customer
\n“his most prized possession” at the clothes cleaners
\nand even at the
\ncan best judge the value. At
\nBroker, however, is exactly the opposite
\nthe case, because he is a specialist for risk assessment
\nwith the customer, and can
\nto that extent his core duty as trustee
\n…hardly limit it.
\nApart from the possibility of such
\npoints, it must always be ensured that
\nthat a risk typical for this type of contract
\nis included in the coverage. Also
\nwill be questions on the freedom from benefits,
\nabout the deductible, as well as any
\nRisk exclusions must be regulated.<\/p>\n
Where is the flaw in the thinking of those
\nBrokers who have accepted their liability towards the
\ncustomers simply as a lump sum and thus
\nlimit ineffective to 1.0 million
\nwant?<\/p>\n
The minimum compulsory VSH cover follows
\ncustomer protection. To keep yourself neat and tidy
\nto insure is for the normal
\nintermediaries, on the other hand, only one option, for
\nthe VSH broker involved a
\ncentral duty, which cannot be limited
\nis. The VSH broker must comprehensibly
\npre-calculate and document,
\nhow to find the right amount of cover
\nand the necessary
\nMaximization determined as recommendation
\nhas. Any intermediary who is
\nVSH broker should be “looked after”.
\nthis without exception in writing
\n…and have it given to me. Included herein
\nare also the questions about excess
\nand single object covers, as well as
\nnegotiating real improvements
\nin the terms and conditions (design obligation
\nof the broker).<\/p>\n
Can you illustrate this with the example of a
\ntypically invalid clause?<\/p>\n
As a little brain teaser, you can
\nYou estimate why the following
\npopular and unfortunately only “allegedly” liability-proof
\nIntermediary contract clause
\nin case of doubt is ineffective:
\n“The liability of the broker in the case of
\nslightly negligent breach of his
\ncontractual obligations on a
\nAmount of EUR 1 million per claim
\nlimited. … As far as in individual cases the
\nRisk of greater damage
\nexists, the customer has the option,
\nthe liability insurance cover
\nof the broker at his own expense
\nto a sum insured
\nincrease the risk assumed
\ncovers.”
\nHere is the approach to the
\nBrain teaser: Is the foreseeable
\ntypical risk of the customer is higher, is
\nthe clause is invalid. Not the customer
\nmust recognize the “higher” risk,
\nbut the broker, as an expert and
\nProperty manager. Not the customer “has a
\nPossibility for adequate VSH insurance”,
\nbut the broker must
\nthe work of persuasion for appropriate
\nInsurance in the interest of the customer
\nperform. And the liability for light
\nNegligence in central duties
\nof a custodian is to be limited
\nregularly “null and void” – i.e.
\nineffective. All this is not a
\n“Spawn of legal doom and gloom”,
\nbut for decades common
\nJurisprudence: What is astonishing about this
\nexcept that apparently “supposed experts”
\nwho are experts in the field of
\n“Risk and hazard control
\non insurance solutions” thereof
\ndon’t (want to) know anything?
\nFor those who may not believe this:
\nCompletely unknown to some experts.
\nPublishing house VVW (Verlag Versicherungswirtschaft)
\nhas just published its publishing program
\nReissued in 2007: Who
\nis able to read, is located
\nclearly at an advantage – for decades.<\/p>\n
How do you get to be a lawyer,
\nto deal with such questions?<\/p>\n
The many years of professional exchange with
\nexperienced insurance brokers and
\n“Original” in the market continues to help – no one
\ncomes into the world all-knowing.
\nA quality management and an active
\nRisk management complements our
\nFindings:
\nModel contracts always have a
\nCommonality – they are model contracts!
\nIn individual cases, these must be adapted
\nbe sent, for example, to the
\nVSH conditions of the intermediary and
\nhis appearance to the outside world on the
\nMarket. The decisive factor is, for example
\nis that the insurance cover
\nof the mediator to deal with
\nthe insurance cover of the broker
\ncovers: In individual cases, it can happen,
\nthat the insurance cover of the
\nintermediary, who in structural sales
\nof a broker does not apply
\nas far and as long as also the broker
\nadheres. And vice versa.
\nBroker liability does not apply, because the intermediary
\nhave their own insurance cover
\n(in whatever amount
\nalways). This can result in
\nof a structure reciprocal fine
\nrecourse issues arise: If an intermediary
\ninsured as an employee of the broker
\nis, then this still means
\nnot for a long time that the mediator does not
\nfrom the broker (e.g. deductible) or
\nwhose VSH insurance (e.g. full
\nAmount of loss) in the event of a loss in
\nrecourse can be taken.
\nA blind adoption of model contracts
\nalways leads to liability problems.
\nThe brokerage contract must therefore, as
\nthe consultation protocol and the company form
\nalso, individually created
\nwill be. It’s a good rule
\nTerms and conditions, the brokerage power of attorney
\nand the actual brokerage contract
\nin a separate easy to understand
\nForm to be separated in each case.<\/p>\n
How should an intermediary proceed now?<\/p>\n
Well, the first step is to get your
\ncreate your own “suitable” contracts
\n…to let… One of the first questions
\nto the lawyer is then how he’s going to deal with
\nliability for its draft contracts
\n…to insure it. When it’s optimal
\nis running, instructions are given for
\nUse of the sample contracts, and a
\nTraining for individual agreements with
\nthe company’s own customers. The rules of
\nKnowing courts optimizes coverage.
\nThis is then followed by
\nmostly the realization that clean
\ncontracts to own only one of
\nseveral building blocks is, the liability
\nto minimize – the VSH protection is in
\nas a rule, only for the residual risk
\nthere. Among the many possible measures
\nfor a minimization of liability
\nincludes, for example, that the intermediary
\na complete expert
\nArchive owns – with all training material
\nand for the production of own
\nTransparency. This can result in a personal
\nSystem for a conscious
\nDevelop risk management.<\/p>\n
And your conclusion?<\/p>\n
The user of “free” sample contracts
\nshould be the first thing to question,
\nwho is responsible for the content
\nand how high this “work of art”
\nwas insured. If there is a defect,
\nis from the responsible author
\nimmediately and demonstrably
\nClaim with own VSH insurer
\nbecause if you don’t, you’ll lose
\nthe author his VSH coverage
\n(Obligation). Sample contract without
\n“Operating instructions” are always
\nuseless, because the associated
\nDangers for the user do not
\nare foreseeable. In the case of allegedly “liability-free
\nContract models” is often only
\none thing is certain: your own liability.<\/p>\n
Mr. Fiala, thank you for the
\nConversation.<\/p>\n
Status: 20.03.2007<\/p>\n
(expert report 9 4.2007, 101)<\/p>\n