OGH on the upper limit of the amount in dispute in legal expenses insurance

Nov 24, 2021 Benn-Ibler Rechtsanwälte

The Supreme Court (Oberster Gerichtshof, OGH) dealt with how the alleged settlement of a claim is to be treated in the upper limit of the amount in dispute of a legal expenses insurance.

In the preliminary proceedings, the plaintiff was sued by a subcontractor for payment of the remaining work wages (EUR 13,900). She contested the claim and countered that the claim did not exist due to billing errors and that there had already been an overpayment of more than EUR 30,000. She requested legal expenses cover from the defendant's legal expenses insurance for these proceedings.

The insurance contract was based on the General Conditions for Legal Expenses Insurance (Allgemeinen Bedingungen für Rechtsschutzversicherungen, ARB 2015). According to Art. 22.B.2.3.2 ARB, insurance cover for the safeguarding of legal interests exists only if and as long as the actual or alleged claims and counterclaims of the parties based on the same insured event do not exceed the contractually agreed upper limit - in this case EUR 25,000 - regardless of the scope, form and time of assertion.

According to the insurance company, only the alleged overpayment amount of more than EUR 30,000 exceeded the agreed upper limit of EUR 25,000.The Court of Appeal agreed with the plaintiff. The mere assertion of the full settlement of the claim filed was neither an alleged nor an actual claim or counterclaim of the plaintiff based on the same insured event.

The OGH, however, sided with the insurance company:

The wording of the conditions explicitly focuses on the actual or alleged claims and counterclaims of the contracting parties (total claims) based on the same insured event, irrespective of the scope, form and time of assertion. The total claim is therefore formed from the mutual claims of the parties to the dispute arising from the same insured event, irrespective of any concrete - judicial or extrajudicial - assertion that has already taken place. This is also clear to the average policyholder from the wording of the conditions.

The coverage was therefore rightly denied.

OGH 7 Ob 134/21p (15.09.2021)