To start with, in Italy the insurance discipline dictated by our Civil Code is mainly based on the loss occurrence principle, so that the insurer is held to provide coverage for an act or omission which occurs during the policy period from which the insured’s liability to pay compensation arises. The loss occurrence clause is more favorable to the insured party because it guarantees coverage even many years after the event that originated the claim and the loss. Furthermore, in the view of some authors, claims-made clauses appear to give an unreasonable advantage to the insurance company, knows exactly how long it is held to guarantee the insured party. Not only, this type of clause may result in a gap in insurance coverage because the insured party is nonetheless held to face claims till the expiry of the statute of limitations period. So it is thought to create an unacceptable and unlawful imbalance between the contracting parties’ rights and obligations. Before the recent Supreme Court decision, the Courts including the – Supreme Court took different positions with respect to claims-made – clauses. Briefly these are, claims-made clauses are null and void, therefore not applicable; – claims-made clauses are but only if specifically approved by the – insured party because they are so burdensome for the insured party as to require specific attention and specific approval; claims-made clauses are valid and enforceable. – As mentioned before, the Supreme decision we are talking about went through and examined all the reasons supporting the different positions relevant to claims-made clauses and stated that, in line of principle, these clauses are valid and enforceable but with some possible exceptions. The case at the basis of the new Supreme Court decision was in very – short terms the following: – insured party: a hospital; –
To start with, in Italy the insurance discipline dictated by our Civil Code is mainly based on the loss occurrence principle, so that the insurer is held to provide coverage for an act or omission which occurs during the policy period from which the insured’s liability to pay compensation arises. The loss occurrence clause is more favorable to the insured party because it guarantees coverage even many years after the event that originated the claim and the loss. Furthermore, in the view of some authors, claims-made clauses appear to give an unreasonable advantage to the insurance company, knows exactly how long it is held to guarantee the insured party. Not only, this type of clause may result in a gap in insurance coverage because the insured party is nonetheless held to face claims till the expiry of the statute of limitations period. So it is thought to create an unacceptable and unlawful imbalance between the contracting parties’ rights and obligations. Before the recent Supreme Court decision, the Courts – including the Supreme Court – took different positions with respect to claims-made clauses. Briefly these are, – claims-made clauses are null and void, therefore not applicable; – claims-made clauses are but only if specifically approved by the insured party because they are so burdensome for the insured party as to require specific attention and specific approval; – claims-made clauses are valid and enforceable. As mentioned before, the Supreme decision we are talking about went through and examined all the reasons supporting the different positions relevant to claims-made clauses and stated that, in line of principle, these clauses are valid and enforceable but with some possible exceptions. The case at the basis of the new Supreme Court decision was – in very short terms – the following: – insured party: a hospital;
claims_made_in_italy_coletanea_inicio_abril_2018.docx