OGH Rules on Health Insurance Terms

Nov 10, 2023 Benn-Ibler Rechtsanwälte

The validity test pursuant to Section 864a of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) states that objectively unusual and surprising clauses in GTCs do not become part of a contract. What matters is whether the clause in question is customary for a specific type of transaction and corresponds to honest contractual practice.

The plaintiff and the defendant in the case at hand are contractual partners of a health insurance contract based on the Austrian General as well as Particular Insurance Conditions (AVB, BVB). A daily allowance of EUR 60 was agreed from the 29th day of 100% incapacity.

After the start of the contract on 1 July 2017, the claimant was off sick with a herniated disc from 14 February 2018 to 8 July 2018 and again from 26 March 2020 to the day he retired (1 April 2022). His incapacity for work was 100% in both cases.

Excerpts from the General Insurance Conditions (AVB) are the following:

VI Termination of insurance

(3) Benefits will be provided for a maximum of 364 days within three insurance years. In this case, the Insurer may terminate the contract at the end of the month in which the benefit has been provided for 364 days.

The claimant claimed sick pay for his entire sick leave. The defendant denied the claim. The second period of sick leave had occurred within the first three years of insurance and therefore did not begin again in the second three years of insurance.

The OGH ruled as follows:

According to Section 864a of the ABGB, a clause is objectively unusual if it clearly deviates from the expectations of the contracting party, i.e. if it could not reasonably have been expected under the circumstances. The clause may not be buried in the text so that the contracting partner cannot expect where it is and cannot find it where it might be expected. In general, only provisions on the termination of the insurance relationship can be expected under the title 'Termination of insurance’ and not any restriction of the description of the services contained under the respective title 'Conditions of insurance'.

The defendant’s ‘limitation of benefits’ must be considered unusual under Section 864a ABGB and are therefore ineffective. The plaintiff is entitled to the payment of sickness benefits.

7 Ob 107/23w (30 August 2023)