The decision will be a milestone in the Insurance industry for the following reasons. The Court has split the made” clauses in two major categories: one “claims related to the so called clauses and one related to the so called “pure” or clauses. The clauses cover requests for “impure” “mixed” “pure” damages received by the Insured for the first time during the policy period irrespective of the date the unlawful act was committed. Instead, the clauses cover requests for damages received by the Insured for “impure” the first time during the policy period provided that the related unlawful acts committed by the Insured also occurred during the policy period or in a limited period of time preceding the date of commencement of the policy (retroactivity period). The Court in line with its previous case-law (see judgements of the Court of Cassation n. 7273/2013 and 3622/2014), recognised the possibility to derogate from article 1917, I paragraph of the Italian Civil Code (that provides that insurer is bound to indemnify the insured for the “the damages which the latter must pay to a third party as a result of the events occurred during the period of insurance and depending on the liability provided by the contract”) and affirmed the validity of the claims clause, overcoming a case-law tendency of the Courts of first instance that deemed the clause invalid for being in violation of article 1917, of article 2965, as well as of articles 2965, 2932 and 2935 of the Italian Civil Code (see judgement of the Court of Genoa of 8 April 2008;
The decision will be a milestone in the Insurance industry for the following reasons. The Court has split the “claims made” clauses in two major categories: one related to the so called “pure” clauses and one related to the so called “impure” or “mixed” clauses. The “pure” clauses cover requests for damages received by the Insured for the first time during the policy period irrespective of the date the unlawful act was committed. Instead, the “impure” clauses cover requests for damages received by the Insured for the first time during the policy period provided that the related unlawful acts committed by the Insured also occurred during the policy period or in a limited period of time preceding the date of commencement of the policy (retroactivity period). The Court in line with its previous case-law (see judgements of the Court of Cassation n. 7273/2013 and 3622/2014), recognised the possibility to derogate from article 1917, I paragraph of the Italian Civil Code (that provides that “the insurer is bound to indemnify the insured for the damages which the latter must pay to a third party as a result of the events occurred during the period of insurance and depending on the liability provided by the contract”) and affirmed the validity of the claims clause, overcoming a case-law tendency of the Courts of first instance that deemed the clause invalid for being in violation of article 1917, of article 2965, as well as of articles 2965, 2932 and 2935 of the Italian Civil Code (see judgement of the Court of Genoa of 8 April 2008;
claims_made_in_italy_coletanea_inicio_abril_2018.docx