OGH on the Exclusion of Compensation Waivers

Aug 26, 2022 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of whether an insurance company's obtaining knowledge of a claim in a way other than through the policy holder precludes exemption from payment of compensation if the policyholder violates their duty to provide information in the intent to deceive and conceal.

The defendant took out a third-party liability insurance policy with the plaintiff for a lorry. An employee of the defendant damaged a furniture store’s access barrier system during a delivery, which was recorded by the store’s CCTV system. The furniture store reported this incident to their insurance company, the plaintiff, by submitting the recording, whereupon the plaintiff paid the repair costs.

The plaintiff is now seeking payment of the amount paid to the injured party from the defendant in the form of a compensation claim. The defendant countered that there had been no breach of duty. The plaintiff would have become aware of the incident anyhow.

While the court of first instance ordered the defendant to pay, the court of appeal changed the judgment altogether by dismissing the claim.

The Austrian Supreme Court considered thus:

According to Section 33 (2) of the Austrian Insurance Contract Act (Versicherungsvertragsgesetz, VersVG), the insurer cannot invoke an agreement exempting themself from paying out compensations if the insurer becomes aware of the insured event in due time (and not through the policyholder). The plaintiff claims that exemption from performance results from Art 9.3.3 AKHB in connection with Section 6 (3) VersVG. In the present case, the furniture store (whose barrier system had been damaged) reported the damage. Contrary to the opinion of the plaintiff, Section 33 (2) of the Insurance Contract Act cannot be teleologically narrowed down to the effect that if an insured person acts with the intent to deceive or conceal, they cannot invoke Section 33 (2) of the Insurance Contract Act. Such a breach of obligation requires special intent demonstrated by manipulating evidence to the disadvantage of the insurer (dolus coloratus). The law is therefore a norm with a general preventive function which, in the Austrian Supreme Court's view, is not compromised, the more so as a policyholder cannot anticipate whether the insurer might become aware of the occurrence of the insurance incident in a timely manner in some other way.

In the case at hand, the plaintiff's appeal was to be dismissed.

OGH 7 Ob 52/22f (29.06.2022)