News
The trial judge decides on the oppressive nature of a mixed “claims made” clause
- 12/12/2016
A “claims made” clause, included in civil liability insurance policies, provides that a coverage applies only if the damaging event is notified to the insurance company over the policy period.
Therefore, for the purposes of getting a redress, what really matters is the moment in which the event is notified and not the moment in which the event has happened.
In the commercial practice, a special typology of “claims made” clause, so-called mixed, is often applied. According to such a clause, a coverage operates only if both the event and the claim for redress intervene over the policy period.
With judgment no. 24645 of 2nd December 2016, the Court of Cassation in its plenary session (“Sezioni Unite”) has explained that a mixed “claims made” clause, offered by some insurance companies, is not in itself oppressive.
It becomes so for lack of worthiness, according to article 1322, paragraph 2, of the Italian Civil Code, or where it damages a consumer by creating a significant imbalance between their rights and their obligations.
The Court has then concluded that it’s up to the trial judge to decide whether such circumstances are existing and, therefore, whether a mixed "claims made" clause is unlawful.
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