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.     

Dynamic Prevention in Short-Term Insurance Contracts

This article looks at the dynamic properties of insurance contracts when insurers have a better technology at preventing catastrophic losses than the insured. When the prevention technology is irreversible and its benefits last for all future periods although its cost is borne in the period in which it is made, a hold‐up problem occurs because the insured can change insurer after his initial insurer has invested in prevention. Investment in prevention is then delayed compared to the first best outcome. When the audit cost must be incurred by the insured when he wants to change insurer, the incumbent insurer has an informational advantage so that he can keep his client over the entire investment horizon, even though long‐term contracts are not possible. This does not avoid the delay in investment, however.     

论责任保险被保险人“怠于请求”行为之司法界定

2009年新修订的《保险法》第65条增加规定,赋予保险事故受害第三者在一定条件下对保险人的直接赔偿请求权,这是我国责任保险法律制度的进步。然而,《保险法》对被保险人“怠于请求”行为的认定并未作具体明确的规范,这必将使司法实践对此类案件的处理陷入困境。在目前条件下,为切实保证责任保险制度保护受害第三者利益立法目的之实现,...     

Grenzen der Auskunfts- und Belegpflicht in der D&O Versicherung

A large number of claims brought under German D&O insurance regard Insured vs. Insured cases, i.e. claims brought by the company against its own directors and officers (Executive Directors, Supervisory Board Members etc.). After notification of and examination by the insurer of such an insured event, the insurer will in most cases opt to grant the insured defence cover in order to fight off the claim. The insurer hereby expresses that it regards the claim of the company (= its own policyholder) against the board member (= the insured) to be without merit. This situation—where the policyholder is at the same time the damaged party—though typical under (German) D&O-policies is uncommon for liability insurance cover in general. It, thus, raises the issue as to the limits of the policyholder’s duty to disclose information. The scope of said obligation is not unlimited. It rather has to be ascertained pursuant to Sect. 31 VVG (German Insurance Contract Act), by taking into account the policyholder’s interests in commercial and industrial confidentiality and the burden of poof as provided by Sect. 93 para. 2 AktG (German Stock Companies Act). In case legal proceedings ensue between the company and the insured, and, as a consequence, the insurer exercises its obligation to conduct the case for the insured or the insurer joins the lawsuit on the side of the insured (by declaring a Third Party Notice [Streiverkündung]), the insurer clearly becomes an adversary to the company. Under such circumstances, the company is irrevocably released from its duty to disclose information.     

Who Obtains Greater Discounts on Automobile Insurance Premiums?

Insurance purchasers obtain varied discounts for insurance. This paper examines what drives these differences, specifically whether the loss probability and the wealth of the insured affect the size of the premium discount in automobile insurance. To describe a bargain between a client and an insurer over premiums and coverage, we first develop a sequential insurance bargaining game where the client has an outside option to bargain with another insurer. We find that the equilibrium involves full coverage and, based on the results of comparative statics, we propose hypotheses regarding the effects of the loss probability and the wealth of the insured on the size of the premium discount. We then use a unique data set of 85,806 observations of Taiwanese automobile liability insurance for property damage to empirically test the predictions. After controlling for underwriting and macroeconomic variables, we find that both (1) the insured with a lower claim probability (as a proxy for the insured with a lower loss probability) and (2) the insured with a higher salvage value car (as a proxy for the wealthier insured) receive a greater premium discount. These results support our theoretical results.     

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.     

Asset Pricing of Insurance Loss Liabilities: Some Examples

I construct examples of valuing insurance loss liabilities with asset pricing models, comparing the Rubinstein‐Leland model with the better‐known CAPM. The two models give different values only if the loss payment is asymmetric and correlated with the market portfolio, conditions which can result from the nature of the underlying loss or from the impact of insolvency on the insurer's payment.
In examples where insolvency is not possible and there is no liquidity cost of raising new equity on short notice, the value of a loss liability is equal to the value of the underlying loss, i.e., of the promised coverage, and depends neither on (1) the size of the loss pool; nor on (2) the unsystematic risk of the insurer's liabilities; nor on (3) the composition of an insurer's investment portfolio; nor on (4) the amount of insurer equity.
These factors do affect the value of a loss liability in examples where insolvency and liquidity costs are considered. Other things equal, if a factor increases the likelihood of insolvency, the fair value of a loss liability is lower because the insured is partially self‐insuring; but the liquidity cost of maintaining solvency by raising new equity on short notice is higher, implying a higher fair value of the loss liability.     

The benefit of life insurance contracts with capped index participation when stock prices are subject to jump risk

We analyze the benefit to the insured of newly traded, innovative life insurance contracts. On a sequence of yearly reference days, the insured can choose between a guaranteed return (linked to the insurer’s asset result) and a capped index participation. The cap is adjusted at the beginning of each year such that both alternatives have the same value and the option to select is costless (product structuring condition). We point out that this condition cannot always be met. If the guaranteed return exceeds the upper bound of the capped index participation, the insurer can make a side profit. We show that a rather low insurance result also implies a rather low stock exposure, even if the insured opts for the index participation. Concerning the impact of the index dynamics, we emphasize that it is important to distinguish between jump and diffusion risk because the pricing of jump risk has an impact on cap rates that can be offered to an insured. Finally, we show that the optimal decision strategy of a CRRA investor implies an index selection even if it is unfairly priced such that the insurer indeed makes a side profit.     

Complete Versus Incomplete Insurance Contracts under Adverse Selection with Multiple Risks

This article extends the standard adverse-selection model for competitive insurance markets, which assumes a single source of risk, to the case where individuals are subject to multiple risks. We compare the following market situations—the case where insurers can offer comprehensive policies against all sources or risks (complete contracts) and the case where different risks are covered by separate policies (incomplete contracts). In the latter case, we consider whether the insurer of a particular risk has perfect information regarding an individual's coverage against other sources of risks. The analysis emphasizes the informational role of bundling in multidimensional screening. When the market situation allows bundling, it is shown that in equilibrium the low-risk type with respect to a particular source of risk does not necessarily obtain partial coverage against that particular risk.     

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.     

Der Kausalitätsgegenbeweis des Versicherungsnehmers

According to Section 28 para. 3 of the revised German VVG (Insurance Contract Law), a policyholder may prove that his breach of duty did not cause a disadvantage for the insurer by means of so-called causality counter-evidence. In contrast to the former provision, this possibility obtains even in case of an intentional breach. Therefore, in the future, causality counter-evidence will increase in importance—especially with regard to notice and information duties and duties to keep subjective risks to a minimum. However, the new provision does not impose an unfair burden on the insurer: if the causality counter-evidence is successful, the insurer must pay only the actual costs required under the contract. The insurer’s interest in prevention is protected insofar as the introduction of causality counter-evidence is generally precluded in case of malice.     

基于权益视角的保险人契约责任探析

履约能力不对称条件下,被保险人权益实现面临多元经济伦理和法律规范约束,主要表现为保险人契约责任问题。本文从现代民商法和制度金融学的分析视角,阐释保险人履行契约责任涉及的企业伦理和契约法制度问题,并就保险人契约责任法律规制,提出相应的学理思考。     

To Hedge or Not to Hedge: Managing Demographic Risk in Life Insurance Companies

Demographic risk, i.e., the risk that life tables change in a nondeterministic way, is a serious threat to the financial stability of an insurance company having underwritten life insurance and annuity business. The inverse influence of changes in mortality laws on the market value of life insurance and annuity liabilities creates natural hedging opportunities. Within a realistically calibrated shareholder value (SHV) maximization framework, we analyze the implications of demographic risk on the optimal risk management mix (equity capital, asset allocation, and product policy) for a limited liability insurance company operating in a market with insolvency‐averse insurance buyers. Our results show that the utilization of natural hedging is optimal only if equity is scarce. Otherwise, hedging can even destroy SHV. A sensitivity analysis shows that a misspecification of demographic risk has severe consequences for both the insurer and the insured. This result highlights the importance of further research in the field of demographic risk.     

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.     

医疗责任保险若干重要条款的比较评析——基于美国、我国台湾和大陆地区相关条款的比较

本文在综合考察美国、我国台湾和大陆地区有关保单条款的基础上,就医疗责任保险条款中一些重要和有特色性的条款进行比较和分析。作者认为应当明确约定双方的抗辩权,同时应当规定保险人的抗辩义务,但在大陆实施时应当审慎。应当将有关抗辩费用单列处理,但明确限定分担限额或者灵活处理则各有利弊,对于诉讼结案的,可以不用免赔额,但对于非诉讼渠道解决,应当适用免赔额。     

Optimal Insurance Under the Insurer's VaR Constraint

In this paper, we impose the insurer's Value at Risk (VaR) constraint on Arrow's optimal insurance model. The insured aims to maximize his expected utility of terminal wealth, under the constraint that the insurer wishes to control the VaR of his terminal wealth to be maintained below a prespecified level. It is shown that when the insurer's VaR constraint is binding, the solution to the problem is not linear, but piecewise linear deductible, and the insured's optimal expected utility will increase as the insurer becomes more risk-tolerant. Basak and Shapiro (2001) showed that VaR risk managers often choose larger risk exposures to risky assets. We draw a similar conclusion in this paper. It is shown that when the insured has an exponential utility function, optimal insurance based on VaR constraint causes the insurer to suffer larger losses than optimal insurance without insurer's risk constraint.     

Optimal reinsurance with expectile

In this paper, we study optimal reinsurance treaties that minimize the liability of an insurer. The liability is defined as the actuarial reserve on an insurer’s risk exposure plus the risk margin required for the risk exposure. The risk margin is determined by the risk measure of expectile. Among a general class of reinsurance premium principles, we prove that a two-layer reinsurance treaty is optimal. Furthermore, if a reinsurance premium principle in the class is translation invariant or is the expected value principle, we show that a one-layer reinsurance treaty is optimal. Moreover, we use the expected value premium principle and Wang’s premium principle to demonstrate how the parameters in an optimal reinsurance treaty can be determined explicitly under a given premium principle.     

Precision and Manipulation of Non-financial Information: The Curious Case of Environmental Liability

This paper develops a model showing how the environmental liability regime and the precision of the disclosed environmental performance indicator affect managers’ incentives (1) to reduce actual pollution and (2) to manipulate the reported pollution. I assume a company with a separation of ownership and control which can be held liable for environmental damages and distinguish between a negligence regime and strict liability. The results suggest that if there is no manipulation but only a lack of precision of the disclosed environmental performance indicator, a negligence rule induces lower actual pollution levels than strict liability even though a negligence rule is considered to be more lenient. If managers are able to manipulate the disclosed environmental performance indicator, they will do so and actual pollution levels will generally increase. While manipulation makes it easier for shareholders to escape liability under a negligence regime, shareholders suffer from manipulation under strict liability due to higher actual pollution and higher expected damage compensation payments. Therefore, the manipulation level is higher under a negligence regime. My analysis contributes to the environmental performance and disclosure literature by showing that the liability regime is an important determinant affecting environmental reporting and actual pollution decisions.     

Ex ante loss control by insurers: Public interest for higher profit

This article examines the incentives of an insurer to modify loss distributions prior to the sale of insurance. While actions such as lobbying Congress for mandatory airbags in automobiles are undertaken by insurers for the stated purpose of reducing the aggregate loss in society, they also change the nature of the risk being insured and, hence, affect the profitability of insurance sales. For the case of loss prevention (reducing the probabilty of a loss), insurers do not always have an incentive to invest in loss control. For loss reduction (reducing the severity of any loss that does occur), the incentive is to reduce the size of small losses while simultaneously increasing the size of large losses. Venezian Associates     

Das Überschreiten der Deckungssumme in der Haftpflichtversicherung – Juristische,betriebswirtschaftliche und versicherungsmathematische Aspekte

In respect of liability insurance the insured amount limits the fulfilment of the insurer. The article describes the legal regulations in Germany and hereby closely linked economic and actuarial challenges. It should thus provide an impetus to the necessary interdisciplinary work on the general perception of difficult cases of (possible) exceeding the insured amount.