OGH: Duty to Inform Insurance Provider

Jan 5, 2024 Benn-Ibler Rechtsanwälte

Policy holders must inform their insurance company truthfully and fully of all circumstances of the claim. This duty of disclosure ends with the refusal of the insurer to pay out a benefit.

In 2016, the plaintiff bought a used car. As the car was equipped with an unauthorised defeat device, the plaintiff wanted to claim damages from the manufacturer. The plaintiff had taken out a legal expenses insurance policy with the defendant and sought cover to pursue the claims.

The defendant claimed that the plaintiff’s pursuit of the claim was not covered by the insurance and declined coverage in October 2021. A year later, the plaintiff filed a claim for coverage. The defendant then requested information and documents relating to the vehicle. As the plaintiff never responded, the defendant claimed breach of the policyholder’s duty of disclosure.

The court of first instance upheld the claim. The pursuit of the claim was indeed covered by the general liability insurance. Furthermore, there was no breach of duty on the part of the claimant, as the defendant’s right to information also ended with the refusal of coverage.

The OGH upheld the decision of the court of first instance.

In accordance with Section 33 of the Austrian Insurance Contract Act (Versicherungsvertragsgesetz, hereinafter VersVG), the policyholder must inform the insurer immediately of the occurrence of an insured event. The insurer may, based on Section 34 VersVG, demand further information if it is necessary to determine the extent of its obligation to pay benefits. For this reason, the duty of obligation also ends with the rejection of the claim for coverage, as the insurance company thus expresses that they no longer require any further information to assess their obligation to pay benefits. However, if the insurer still attaches importance to certain information after the rejection, the insurer can request such information from the policyholder.

In the present case, however, the insurer did not wish to reconsider their obligation to pay. The defendant merely wishes to provide further justification for their refusal of coverage. For this reason, the objection that the plaintiff has breached its duty of disclosure is irrelevant.

7 Ob 143/23i (27 September 2023)