The indemnity principle returns to the forefront of the contentious scene, the second civil chamber of the Court of Cassation stopping its projector, in a decision of July 8, 2021 (appeal n ° 20-10.575), on the moment at which the thing must be assessed. insured subject to a claim.
Damage insurance – as well as certain health and bodily accident insurance guarantees – provide indemnity benefits and are subject to what is commonly called the indemnity principle. This one has “a double facet. Positively, the insurer’s service must repair the entire loss. It is a question of replacing the insured in the material and financial situation which would have been his without the loss, subject to the limits of guarantee (deductibles, ceilings, etc.). For example, in liability insurance, the indemnity owed by the insurer is equal to the reparation debt incumbent on the liable insured, while in property insurance, the indemnity depends on the thing insured. Negatively, the indemnity should only repair the loss, and no more, in which the indemnity principle plays the role of a ceiling. As indicated in Article L. 121-1 of the Insurance Code, the insurance contract must not be a source of earnings for the insured. This is to dissuade speculation and prevent the insurance transaction from being distorted ”(M. Robineau,“ Le Régime Général des Assurances de Damage ”, in R. Bigot and A. Cayol [dir.], Insurance law in tables, pref. D. Noguéro, Ellipses, 2020, p. 220).
Thus, the “indemnity benefit tends to repair the loss as it was actually suffered by the insured. The claim therefore serves as the basis for the calculation. The compensation is thus determined according to the rules of common law, that is to say according to those of civil liability law (report, Cass., Ass.plén., Dec. 19, 2003, n ° 01-10.670 , D. 2004. 186 ; RTD civ. 2004. 303, obs. P. Jourdain ). The damage suffered will for example be quantified thanks to an expert report or on presentation of an invoice ”(M. Robineau, art. Above). In all cases, the policy must indicate “the procedure and the principles relating to the estimation of damages with a view to determining the amount of the compensation” (C. assur., Art. R. 112-1).
However, due to the fluctuation in the value of certain goods, the date chosen to carry out their valuation is essential: some insurers would not hesitate to sacrifice victims (and / or insured) on the altar of profit, by speculating on a declining value of the goods to be compensated in order to release significant bonuses, which, etymologically, would no longer be really “something good” in the equilibrium of the contractual transaction (Plautus, capt., 45 in TLL, sv bonus, 2099, 55).
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