The insurer’s liability

An insurer’s liability in a direct action under Article 432(1) of the Insurance Code depends on the liability of the driver insured under compulsory motor third-party liability insurance. The driver’s liability is in tort: there must be an unlawful act or omission, fault and damage resulting from it. Under Article 45(2) of the Obligations and Contracts Act, fault is presumed until the contrary is proved. To succeed in a direct claim under Article 432(1), the claimant must establish by full affirmative proof that a valid third-party liability policy existed between the person who caused the harm and the defendant insurer; that harm resulted from the insured’s wrongful and culpable conduct; that there was a causal link between the conduct and the harm; and the nature and extent of the loss.

Non-pecuniary harm cannot be undone. Money can only compensate for it by enabling the injured person to obtain other benefits. The court determines this substitute benefit in each case according to the nature and extent of the harm experienced by the individual. Fair compensation for pain and suffering caused by a tort requires consideration of the actual extent of the non-pecuniary harm: the nature and severity of the injuries, the intensity, degree and duration of the pain and suffering, and whether they have ended or continue.

The injured person’s contribution to the damage under Article 51(2) of the Obligations and Contracts Act must also be considered. Only a specifically established contribution is relevant: together with the wrongdoer’s unlawful conduct, it must have been necessary for the harmful outcome to occur.

In determining the share attributable to the injured person, the court must compare the nature and seriousness of the respective breaches by the wrongdoer and the injured person.

The insurer’s liability is contractual. Under the Insurance Code in force from 1 January 2016, liability for delay is limited. Under Article 429(3), it covers the period after the earliest applicable date: notification of the insured event to the insurer by the insured, or notification or submission of an insurance claim by the injured person.

This article is not a legal opinion or legal advice concerning a particular situation or person. For assistance with third-party liability or comprehensive motor insurance, or any matter involving an insurer or a road traffic accident, consult a lawyer practising in insurance and tort law.