OLG Linz: Exclusion clause in legal expenses insurance inadmissible

Jun 17, 2022 Benn-Ibler Rechtsanwälte

The Linz Higher Regional Court (Oberlandesgericht, OLG Linz) declared a clause in the General Insurance Conditions for Legal Expenses Insurance (Allgemeinen Versicherungsbedingungen für Rechtsschutzversicherungen) of the insurance company Wüstenrot Versicherung concerning the exclusion of insurance cover to be invalid.

Wüstenrot Versicherung used the following clause: "No insurance cover is provided for the representation of legal interests 1. in causal connection [...] 1.2 with orders under sovereign law which are addressed to a majority of persons due to an exceptional situation [...]."

Because of this clause, the Association for Consumer Information (Verein für Konsumenteninformation, VKI) took Wüstenrot Versicherung to court and requested that the use of this clause be prohibited, as it was non-transparent within the meaning of Section 6 para. 3 of the Consumer Protection Act (Konsumentenschutzgesetz, KSchG).

The court of first instance upheld the VKI. So did the OLG Linz:

First of all, the COVID 19 Vaccination Obligation Act (COVID-19-Impfpflichtgesetz) could also be qualified as a sovereign order, which is addressed to a majority of persons due to an exceptional situation. However, it is not sufficient that only the "core" of the regulation is clear. Rather, it is necessary that the "edges" can also be reasonably reliably defined. In addition, sovereign action is not only taken through laws and regulations, but also through official notices or court decisions. Also, a majority of persons already exists starting from two persons onwards. 

The required "exceptional situation" also remains unclear because the extent of the required deviation from the "normal situation" remains open. From the further wording of the clause, which standardises an exclusion in connection with catastrophes, it follows that an exceptional situation does not have to reach the extent of a catastrophe, otherwise this provision would be meaningless. The OLG illustrated this with floods. Such a flood was to be qualified as a "regular situation" if it occurred annually in the affected area. However, it was not clearly recognisable when a flood was so exceptional that it qualified as an "exceptional situation", but not yet as a disaster. 

OLG Linz 12 R 10/22k (04.04.2022)