OGH: Applicability of exclusion of risks to limited partnerships

Dec 1, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) ruled on exclusions of risks in an insurance contract and their applicability to limited partnerships (Kommanditgesellschaften, KG).

The plaintiff is an engineering office in the legal form of a KG and is insured against liability with the defendant. It planned a multi-family residential building for a property development company. Due to alleged planning errors, the property development company filed claims for damages against the plaintiff. The plaintiff has two general partners, each with a 50 percent share in the property development company. The plaintiff sought insurance coverage from the defendant for the claims asserted against the plaintiff.

The General Conditions for Liability Insurance (Allgemeinen Bedingungen für Haftpflichtversicherungen, AHVB 2006) shall apply to the insurance contract. These stipulate, among other things, that damage caused to a company in which the policyholder involved is not covered by the insurance; in the case of legal persons, the legal representatives are to be considered equal to the policyholder. The defendant alleged such an exclusion of risk. In addition, the defendant claimed an exclusion to the effect that there were damages caused to the policyholder's shareholders.

The OGH held that a KG is an association of persons with legal capacity which bears all the rights and obligations of a legal entity. However, it was not to be qualified as a legal person. Risk exclusions are generally to be interpreted narrowly; an analogous application to registered partnerships beyond the wording is therefore not possible here, according to the OGH. The AHVB 2006 therefore do not cover the KG. Consequently, the legal representatives were not to be considered equal to the policyholder.

With regard to the damage suffered by the shareholders, the OGH stated that they are only indirectly affected, because only the property development company is directly affected. The wording of this exclusion of risk did not clearly indicate that it applied to indirect damage, this ambiguity was to be interpreted to the disadvantage of the defendant.

As there was no exclusion of risk, the claim had to be granted.

OGH 7 Ob 101/21k (15.09.2021)