Das Dreiecksverhältnis zwischen Versicherer,Versicherungsnehmer und versicherten Personen in Innenhaftungsfällen der D&;O-Versicherung

The article deals with the rights and obligations between the policyholder, the insured directors and officers of the policyholder and the insurer in ‘Insured vs. Insured’ D&;O claims. Based on a case study where several directors commit wrongful acts the following questions will be examined: (1) whether or not the policyholder is entitled to directly claim damages from the insurer, (2) whether or not the policyholder violates its duties towards the insurer or the insured directors by its deliberate choice not to make claims against all insured at the same time but in different policy periods, and (3) which obligations has the policyholder towards its directors when there is not sufficient coverage to cover all claims of the policyholder against the directors.     

Die Haftpflichtversicherung nach der VVG-Reform

The reform of the German Insurance Contract Act (Versicherungsvertragsgesetz, ?VVG“) also targets key aspects of third-party liability insurance. The changes go beyond the findings made by both the courts and legal authorities to date.Compulsory insurance aside, the law still provides that an injured third party has no standing to assert a claim directly against the tortfeasor’s liability insurer. The tortfeasor may assign its indemnity claim against the insurer solely to the injured third party and may no longer be precluded from doing so under the General Insurance Conditions (AVB). Consequently, the tortfeasor’s indemnity claim against the insurer effectively becomes a pecuniary claim. This is criticised by the insurance industry particularly with regard to eliminating the prohibition against acknowledgment and satisfaction of claims.In the future, third parties will be able to assert claims directly against the tortfeasor’s insurer and this will be the case for compulsory insurance across the board. Provisions currently in effect in the motor vehicle liability insurance industry will be carried over to the entire compulsory insurance sector. Compulsory insurance does permit agreements involving self-deductibles. However, such agreements are generally effective only as between the insurer and the tortfeasor inter se, i.e. they are not effective as against third parties — in contrast to valid disclaimers of risk.Another change in compulsory insurance is the hierarchy of claims for compensatory damages and relief in the event the insured amount is inadequate. Specifically, the hierarchy gives preference to individual claims of injured parties which are not otherwise covered, such as claims for pain and suffering.The prohibition against the retroactive loss of provisional coverage for failure to pay the first premium, which had been criticised primarily by motor vehicle liability insurers, has been omitted in the Government bill.     

Wird der vom Regierungsentwurf eines VVG geplante Direktanspruch des Geschädigten gegen den Pflichthaftpflichtversicherer ein stumpfes Schwert? Zur Notwendigkeit eines Informationsanspruchs des Geschädigten in der neuen Pflichthaftpflichtversicherung

The amendment of the German Act on Insurance Contracts comprises a number of substantial modifications regarding liability insurance. The most important modification is the introduction of a direct claim against the insurer with regard to all compulsory insurances. Such a direct claim is up to now only known from the motor vehicle liability insurance. Yet, a direct claim will be advantageous for the aggrieved claimant only if he manages to identify the proper insurer. As a result of the structural differences to the motor vehicle liability insurance the act of identifying the insurer is almost utterly impossible for the claimant without any help by the insured. Thus the claimant must also be given a claim against the insured to be furnished with all necessary information regarding the insurer. This right originates from sec. 242 of the German Civil Code.     

The impact of directors’ and officers’ insurance on audit pricing: Evidence from UK companies

This paper examines the impact of directors’ and officers’ (D&O) insurance on audit pricing in a large sample of UK companies. The existence of D&O insurance is expected to exert a dual impact on auditors’ pricing decisions. The presence of an additional source of funds to satisfy stakeholder claims in the event of audit client failure suggests that audit fees in insured companies should be lower. Alternatively, recent research has identified a positive link between the presence of D&O insurance and a number of characteristics traditionally associated with more expensive audits. The main objective of this study is to ascertain which of these influences pre-dominates. Analysing a sample of 753 UK listed companies in the early 1990s, when companies were obliged to disclose the presence of D&O insurance, this study shows that D&O insurance is associated with higher audit fees. It also confirms that insured companies are larger, more complex and present a greater audit risk (using a range of measures) than uninsured companies. Further analysis suggests that the impact of D&O insurance on audit fees may be influenced by company size, auditor size, and the extent of non-executive presence on the company's board.     

Grundfragen zu Anzeige-, Auskunfts- und Aufklärungsobliegenheiten nach dem VVG 2008

This article analyzes the disputed legal nature of the duty to notify and the duty to disclose information according to sections 30 et seq. of the German Insurance Contract Act (VVG). To the extent to which the aforementioned legal provisions impose such obligations on a third party, the author reaches the conclusion that they are to be regarded as true legal obligations, i.e. their breach may result in damage claims. As to the policyholder, however, the legal provisions must be qualified as statutory warranties (so-called Obliegenheiten) without sanctions. Therefore, in order to sanction a policyholder’s breach of his obligations, the contracting parties have to turn the statutory Obliegenheiten into contractual Obliegenheiten, which are then subject to section 28 VVG. In the second part of the article the author addresses the scope of application and the content of the Obliegenheit to instruct the policyholder according to section 28 subsection 4 VVG. This Obliegenheit is imposed on the insurer as a requirement for the sanction of a breach of the contractual duties to provide information and to disclose by the policyholder.     

Versicherungsvertragliche Anzeigepflicht und Garantiehaftung für culpa in contrahendo

To sanction the insurant’s obligation to disclose the risk-relevant circumstances by the insurer’s exemption from performance does not comply with the ordinary pattern of pre-contractual liability. Instead of making the insurant responsible for the consequences of his breach of duty, the German Insurance Act subjects him to a guarantee which is comparable to the one imposed by the German Civil Code in the case of initial impossibility. The insurant has to guarantee that the facts which he did not, or at least not entirely, disclose do not cause any obligation of the insurer. The structure of this sanction is equivalent to the insurer’s so-called liability of performance. But contrary to the latter it can be justified by the specific importance of the insurant’s pre-contractual obligation of disclosure.     

Die vorvertragliche Anzeigepflicht: Empfehlungen für ein europäisches Versicherungsvertragsrecht

In all European legal systems, the pre-contractual duty of disclosure is the most fundamental duty of the insured. Therefore, it is also the focal point of the debate about the harmonization of insurance contract law in Europe. As this discussion has recently gained momentum, this contribution provides a comparative overview of the rules regulating the duty of disclosure in different European countries and submits recommendations for its design in a European insurance contract law. More specifically, it is recommended that the insured should be required to disclose any fact material to the risk, that is either known to him or that he can be assumed to know. In case of breach, the insurer should either be entitled to repudiate the contract ab initio, to cancel the contract for the future or to claim damages depending on whether and to what degree the insured is at fault and depending on whether there is a causal connection between the non-disclosed fact and the formation of the contract or the occurrence of the insured event.     

Informations- und Beratungspflichten des Versicherers nach der VVG-Reform

The insurer’s duty to enable the customer to come to an appropriate decision, providing advice and information, is a central topic of the reform of the German insurance contract law. The obligations of intermediaries given by the Directive 2002/92/EC on insurance mediation are transferred to insurers and thereby enlarged in some aspects. The duty to give advice in §6 I 1 VVG depends on the objective circumstances of each individual case depending upon either the complexity of the insurance contract and problems in understanding its terms, or the characteristics and situation of the customer. Therewith, the regulation both refers to former jurisdiction and exceeds it by implementing a duty for the insurer to ask for the demands and the needs of the customer. Without reason in the special case the customer has to disclose his need for advice to obtain it. During the term of the contract the insurer is only obliged to give advice if he knows or — acting diligently — could know the needs of the policy-holder. On a European level further duties to inform and advise could help to achieve an effective internal insurance market.     

Künftige Sanktionen der Herbeiführung des Versicherungsfalls und der Verletzung der Rettungsobliegenheit: Die Reform des § 61 VVG und der §§ 62, 63 VVG

The contribution deals with the intended reform of the provisions of the German Insurance Code concerning (a) the causation of the insured event and (b) the rescue obligation. The focus lies on the sanctions, and in particular on whether, when the insurant acts with gross negligence, an apportionment should take place (as under Swiss insurance law), or whether the ?All-or-nothing-principle“ should be retained (the author’s view). As to the rescue obligation, the author argues against its extension to the period before the insured event occurs. The insurant should generally and independently of a rescue obligation have a right to claim the expenses he incurred when attempting to avert the realisation of a risk he had not negligently caused. The contribution concludes with seven propositions.     

新保险法热点问题之中港比较

比较大陆和香港两地保险实践,会发现许多热点问题在大陆地区和香港地区之法律规制仍存在较大差异.伴随着大陆地区保险市场的逐步成熟,大陆保险法律体系的完善亦可借鉴香港地区相关理念和做法,充分发挥行业自律的重要作用,并逐步推进以市场行为为中心的监管模式向以偿付能力为中心的监管模式转变.     

临时保险制度：赔付理由、期间及其限制

我国《保险法》未规定临时保险制度,本文建议,我国的临时保险制度应当分为强制临时保险与自愿临时保险两种,在保险人预收保险费的情况下,根据履行提前、对价平衡、合理期待等理论,保险人应当对临时保险事故予以赔付,此种临时保险的期间自投保人交付保险费之时起算,于正式保险生效之时或投保人收到拒保通知书并由保险人退还保险费之时终止;...     

Gendiagnostikgesetz und Versicherung: Anspruch und Wirklichkeit

With the new German Gene Diagnostic Act (Gendiagnostikgesetz) the legislator aims at improving the protection of insurance applicants by prohibiting private insurers from collecting and using genetic information. However, the analysis of the new provisions shows that the provisions pertaining to insurance neither provide a comprehensive protection against genetic discrimination of insurance applicants and insured nor do they protect their right of gene-informational self-determination. Cuts of insurance benefits of the insured in private health insurance as well as incoherent disclosure obligations for insurance applicants unconstitutionally limit the rights of affected people as compared to the time before the Gene Diagnostic Act came into force. In summary, the new Gene Diagnostic Act does not only fail to meet its claims and thus falls short of the expectations, but also, due to numerous unclear provisions, poses a series of grave problems for insurance applicants, privately insured and private insurers.     

Longitudinal modeling of insurance claim counts using jitters

Modeling insurance claim counts is a critical component in the ratemaking process for property and casualty insurance. This article explores the usefulness of copulas to model the number of insurance claims for an individual policyholder within a longitudinal context. To address the limitations of copulas commonly attributed to multivariate discrete data, we adopt a ‘jittering’ method to the claim counts which has the effect of continuitizing the data. Elliptical copulas are proposed to accommodate the intertemporal nature of the ‘jittered’ claim counts and the unobservable subject-specific heterogeneity on the frequency of claims. Observable subject-specific effects are accounted in the model by using available covariate information through a regression model. The predictive distribution together with the corresponding credibility of claim frequency can be derived from the model for ratemaking and risk classification purposes. For empirical illustration, we analyze an unbalanced longitudinal dataset of claim counts observed from a portfolio of automobile insurance policies of a general insurer in Singapore. We further establish the validity of the calibrated copula model, and demonstrate that the copula with ‘jittering’ method outperforms standard count regression models.     

Quotelung bei Obliegenheitsverletzungen: Alles,Nichts oder die Hälfte

The German Insurance Contract Act of 1908 provided that the insured person would totally loose its claim on the insurance benefit in case of gross negligence. In order to give the insured person better protection the German Insurance Contract Act of 2008 rules that the insurance benefit is only reduced proportionally to the fault of the insured person. This article broaches the issue of how to calculate the amount of reduction. The main thesis is that light and gross negligence do not differ categorically from each other. Gross negligence is rather a gradual increase of negligence. Thus, the criteria that are relevant for the determination of gross negligence also decide over the weight of negligence relevant for the amount of reduction. In case the circumstances regarding a breach of warranty cannot be clarified, it is presumed that the insured person has acted with gross negligence. In this case, the gravity of the negligence has to be determined primarily by the objective weight of the breach of warranty.     

Umwelthaftung, Umwelthaftpflichtversicherung und Umweltschutz

It is accepted in jurisprudence that liability has — as a side-effect — the aim to prevent damages, but up to now there has been no scientific proof that it works. There is no dispute that liability in tort is suitable for prevention, some approaches making cuts on the suitability of strict liability for this purpose. If liability insurance coverage is reasonable it is advantageous to the environment. German pollution liability coverage conditions at least provide adequate avenues: The insured is urged to present a risk index which is important for a risk analysis relevant to the current situation. The duty to give notice of claim and to acquire instructions from the insurer can help to minimize damage. The insurer has the right to ask the insured to improve his precautions. It would also deter environmental hazards if minor pollution which does not result unexpectedley or accidentally as well as misfeasance is excluded. The inclusion clause for such pollution and for developmental risks is not effective if the insured does maintain high safety and prevention standards. However it is counterproductive that, in the insurer’s understanding, salvage costs are not covered and at the same time they are not included in the environmental liability coverage.     

Optimal insurance in the presence of reinsurance

This paper studies an optimal insurance and reinsurance design problem among three agents: policyholder, insurer, and reinsurer. We assume that the preferences of the parties are given by distortion risk measures, which are equivalent to dual utilities. By maximizing the dual utility of the insurer and jointly solving the optimal insurance and reinsurance contracts, it is found that a layering insurance is optimal, with every layer being borne by one of the three agents. We also show that reinsurance encourages more insurance, and is welfare improving for the economy. Furthermore, it is optimal for the insurer to charge the maximum acceptable insurance premium to the policyholder. This paper also considers three other variants of the optimal insurance/reinsurance models. The first two variants impose a limit on the reinsurance premium so as to prevent insurer to reinsure all its risk. An optimal solution is still layering insurance, though the insurer will have to retain higher risk. Finally, we study the effect of competition by permitting the policyholder to insure its risk with an insurer, a reinsurer, or both. The competition from the reinsurer dampens the price at which an insurer could charge to the policyholder, although the optimal indemnities remain the same as the baseline model. The reinsurer will however not trade with the policyholder in this optimal solution.     

Vorvertragliche Informations- und Aufklärungspflichten des Versicherers nach finnischem Recht

The essay deals with the regulation of the pre-contractual duty of the insurer to inform and advice the prospective policyholders according to the Finnish law. The regulation could possibly be used as a model for the amendment of the German Insurance Contract Law (VVG). The widely amended Finnish Insurance Contract Law (VSL) came into force on 1. 7. 1995. The regulation of the pre-contractual duties of the insurer was one of the most important amendments of the law. According to sec. 5 VSL, the insurer shall give the insurance applicant the information which is needed for the assessment of the insurance requirement and for the choice of the insurance before the insurance agreement is entered into. If the insurer or his representative has neglected to provide the policyholder with the necessary information concerning the insurance or has provided him with faulty or misleading information, sec. 9 VSL will apply. According to it, the insurance agreement is considered to be in force with the content which the policyholder had reason to infer on the basis of the information which he had received. The provisions are general clauses. The essay explains the details of the provisions through the cases which have been solved by the Finnish Complaints Boards.     

Rechtsnatur und Zuordnung der Alterungsrückstellungen in der PKV

Discussions about the inclusion of the previously privately insured into the statutory government health insurance abound. Specifically, questions regarding the transfer of specific rights under the private contract persist. In particular this article addresses the ageing reserve into which the insured contributed as part of their original policies. Since contractual claims are protected by fundamental property rights, it was first investigated whether the ageing reserve would allow the insured to claim a reimbursement. However, this disbursement cannot be supported as long as the ageing reserve is still being accrued and has not yet been dissolved since the monies paid into the reserve cannot be traced to their individual sources. The legal principles of trust (Treuhand) and reversion (Anwartschaftsrecht) are also not applicable to this situation as they are based on different factual premises. While the expectation of a constant premium throughout old age is not protected by German Basic Constitutional Law, the insured’s right to expect a continuance of the contract is protected; in addition, required services and remuneration in case of a claim are guaranteed by article 14.     

Aspekte einer Neugestaltung des Rechtes der Versicherungsvermittlung

The current fundamental reform of the German insurance law cannot and will not stop short of the law of insurance mediation. Up to now Sec. 43 to 48 Versicherungsvertragsgesetz (VVG = German Insurance Act) govern only one type of insurance intermediary known as insurance agent. The act only sets up rules to which extent the insurance agent has authority to bind the insurer. In the way the law is construed by the courts it differs in many aspects from the written law. Thus it is suggested to define the generic term ?insurance intermediary“ in the act as well as the subcategories ?insurance broker“ and ?insurance agent“, whereby the term ?insurance agent“ also includes the field staff employed by an insurer. In connection with the diffi-cult distinction between insurance brokers and insurance agents it remains questionable on which type of intermediary the rules regulating the relationship between agents and insurants and thereby protecting the potential customers should be applied accordingly. This controversial and in practice significant question should be explicitly decided by the legislator for reasons of legal certainty. In so far Sec. 43a of the Austrian Insurance Act could act as a model function. Regarding the insurance agents’ authority to receive (Empfangsvertretungsmacht des Versicherungsvertreters) for the insurer propositions exist to explicitly declare Sec. 43 No.l VVG, which grants the agent the authority to receive when accepting a contractual offer for the insurer, as mandatory. This suggestion would be in accordance with the current case law. Furthermore the wording of Sec. 43 No.l VVG should be altered so that the insurants’ pre-contractual risk-notifications, which the prevailing opinion already regards as being included, is explicitly mentioned. In principle Sec. 43 No.2 WG, which grants the agent the authority to receive notifications and representations for the duration of the insurance contract, should be declared as mandatory, too. Exempted should be the authority to receive for dispositions regarding the entitlements to benefits from (life) insurance contracts and the right to receive the insured sum. Sec. 44 WG, which strongly restricts the attribution of the agent’s knowledge to the insurer, is unconvincing, especially from a legal policy point of view. Therefore it is to be cancelled without substitution. Finally the legislator should refrain from codifying the customary liability based on the principles of reliance.     

Konkrete und abstrakte Schadensberechnung in der Sachversicherung

The article deals with the question of whether the compensation owed by a property insurer is calculated according to abstract criteria or rather to the concrete expenses incurred by the policyholder in the individual case. For this purpose, the paper provides an overview of the principles of damage calculation in the fields of property insurance. In addition, the author draws a comparison between property insurance and liability law in terms of the basics of damage assessment. This particularly concerns the relationship between the so-called efficiency rule and the damaged party’s duty to minimize damages, but also the question of whether and to what extent the principles of liability law can be transferred to property insurance law. Finally, the author illustrates these principles by means of two examples from the field of vehicle insurance.