Court dismisses insolvency administrator’s lawsuit against insurer in property insurance case.

Press release 22/23

26.05.2023

OSNABRUCK. The 9th civil division of the Regional Court of Osnabrück, which is responsible for legal disputes arising from insurance contracts, among other things, dismissed the lawsuit brought by an insolvency administrator against the insurer of the insolvency debtor, a restaurant operator, for benefits from the existing property insurance with a judgment dated May 24, 2023, cf. reference number 9O3254/21.

On January 15, 2018, a fire severely damaged the interior of the policyholder’s restaurant in Osnabrück. The damage was estimated by an expert commissioned by the policyholder at around EUR 640,000.00. There was a suspicion of intentional arson. In criminal proceedings before the district court in Osnabrück, a third party suspected of setting the fire was acquitted. The policyholder immediately reported the incident to her insurer, who sent her a catalog of 20 questions in a letter dated March 6, 2018 for further processing of the process. The operator of the restaurant initially commissioned a company to settle the claim. She was then represented by several lawyers. In a letter dated August 1, 2018, a lawyer answered the insurer’s questions. Since the insurer was of the opinion that some of the questions had not been answered and some of them were incomplete, he set his policyholder a deadline for supplementary answers. He referred to the regulation in Section 28 (2) VVG, according to which a reduction in benefits or a refusal of the obligation to assume liability is possible if the policyholder does not comply with his obligation to cooperate in clarifying the case of damage. There was no further answer to the questions asked by the insurer. On November 21, 2018, the latter stated that he was refusing to cover the damage because the policyholder had not complied with her obligation to provide information and to cooperate. The policyholder objects to this and demands payment of EUR 632,090.28 from her insurer.

The 9th civil chamber of the district court in Osnabrück has now dismissed the lawsuit.

As justification, she explained that the policyholder had intentionally failed to fulfill her duty to cooperate. She did not promptly answer her insurer’s questions, which the Chamber considered admissible. A question to the policyholder is permissible if the answer to the question could be relevant to the insurer’s assessment of whether there is a liability. It is not necessary for the answers to the questions to actually prove to be essential. The policyholder also has to provide information that could incriminate itself. The principle of “nemo tenetur”, which applies in criminal law, according to which no one has to incriminate themselves, does not apply to the relationship between policyholder and insurer.

The policyholder also acted intentionally, as it was clear to her from the insurer’s inquiry that the information provided by her authorized representative in 2018 was not sufficient. It should also be taken into account that the policyholder had a further 3 months to comply with the request from the insurer to answer the questions. This period of time only allows the conclusion that the policyholder did not want to answer the questions completely and incorrectly.

The policyholder was also aware and wanted it that the lack of or insufficient answers to the questions had or could have an impact on the determination of the insured event or the scope of the insurer’s obligation to provide benefits. In the opinion of the chamber, it should be taken into account that there was a suspicion of intentional setting fire and that a person in the immediate vicinity of the policyholder was also being investigated. By not answering the questions adequately, the policyholder tried to minimize the loss of her entitlement to benefits. Whether the violation of the obligation to cooperate was the cause of the determination of the obligation to assume liability or the extent of the damage can therefore be left open, see Section 28 (3) VVG. The judgment is not yet final. The decision can be challenged within one month by appealing to the Higher Regional Court of Oldenburg.

Law on Insurance Contracts (Insurance Contracts Act – VVG) Section 28 Violation of a contractual obligation (1) In the event of a breach of a contractual obligation to be fulfilled by the policyholder in relation to the insurer before the insured event occurs, the insurer may terminate the contract without notice within one month of becoming aware of the breach, unless , the violation is not based on intent or gross negligence. (2) If the contract stipulates that the insurer is not obliged to pay in the event of a breach of a contractual obligation to be fulfilled by the policyholder, he is released from payment if the policyholder intentionally breached the obligation. In the event of a grossly negligent breach of the obligation, the insurer is entitled to reduce its benefit in proportion to the severity of the policyholder’s fault; the policyholder bears the burden of proof for the absence of gross negligence. (3) Contrary to paragraph 2, the insurer is obliged to pay if the breach of the obligation is not the cause of the occurrence or the determination of the insured event or the determination or the scope of the insurer’s obligation to pay. Sentence 1 does not apply if the policyholder has fraudulently violated the obligation. (4) In the event of a breach of an obligation to provide information or provide information after the occurrence of an insured event, the full or partial release of the insurer from performance pursuant to paragraph 2 requires that the insurer has informed the policyholder of this legal consequence in a separate notification in text form. (5) An agreement according to which the insurer is entitled to withdraw in the event of a breach of a contractual obligation is ineffective.

Judge at the District Court Christoph Willinghöfer
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