Commentary on the judgment of Cass. civ., Sez. III, Ord. n. 8894/2020: Claims made clauses and civil liability
Judgment n. 8894 of 2020 by the Court of Cassation has rekindled the debate on the validity of claims made clauses in civil liability insurance contracts. The Court addressed a dispute in which a hospital found itself liable for damages suffered by a patient, subsequently seeking indemnification from its insurance company, Generali Italia spa. However, the claims made clause represented a significant obstacle.
The case in question
The central issue concerned the legitimacy of a clause that required the insured to report the claim within twelve months from the termination of the contract, under penalty of forfeiture. The Court of Appeal of Rome had already confirmed the validity of the clause, arguing that it was not unfair and served interests deserving of protection. However, the hospital's appeal highlighted broader issues related to the insured's position of weakness.
The claims made clause must not create a significant imbalance between the parties.
The principle of deservingness
One of the most controversial issues concerns the concept of deservingness, which is distinct from unfairness. The Court referenced previous case law, particularly the judgment of the United Sections n. 9140 of 2016, to assert that a claims made clause is not inherently unfair, but may become so if it creates an unjustified imbalance between the parties. In this case, the hospital argued that the clause placed it in a difficult position, as the claim for damages from the injured party was uncertain and uncontrollable.
The implications of the judgment
The Court accepted the third reason for the appeal, recognizing that the clause in question, imposing a forfeiture period not justified by the conduct of the insured, violated the principles of legality set forth in the Civil Code. In particular, the Court highlighted that the clause imposed an excessive burden on the insured, as the reporting of the claim depended on the timeliness of the injured party's request for compensation.
- The claims made clause must comply with the limits imposed by law.
- The timing of the compensation request must be in the hands of the insured.
- Any clauses that make it difficult to exercise the right may be declared null and void.
Conclusions
Judgment n. 8894/2020 represents an important step forward in protecting the rights of insured parties. It clearly establishes that claims made clauses must be evaluated carefully to avoid creating an imbalance between the parties. Insurance companies should review their policies to ensure that they do not place their contracting parties in a position of vulnerability. This decision not only clarifies the legal position of the insured but also contributes to greater fairness in the insurance sector.
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