Recently, a decision for the post processing of non-performing insurance by cancellation risk communication adopted new reasoning capabilities against Commission recovery decisions BGH, judgment of December 1, 2010 – VIII ZR 310/09 which has German Federal Supreme Court (BGH). The decision refers to that claim of an insurance representative on the Commission only arises if the policyholder has paid the premiums from which the Commission is calculated (section 92 (4) German Commercial Code – HGB). The policyholder does not pay the due premium and this is however due to circumstances for which the insurance company is not responsible, the Commission again (Section 87a paragraph 3 HGB) is not valid for. Provided advances on the Commission are then again to repay. It is widely recognized that the non-payment of the premium or cancellation of insurance contract from an insurance company then cannot be justified is if the troubled treaty sufficiently “reworked”. To the Finishing non-performing insurance contracts after the insurance companies take their own measures against cancellation or limited opportunity to give the insurance representative by a cancellation risk communication to revise the Treaty itself. In the event of a dispute is set out by the insurance company and to prove that the cancellation measures were sufficient according to kind and extent.
Own actions against cancellation risk by the insurance company, so the BGH has now found, the policyholders to fulfil its contractual obligation must be admonished seriously and strongly. The mere sending of a letter is not sufficient for this purpose. An insurance undertaking descendant also only his compulsory cancellation security sufficiently, so the federal judge, when it sends a message to the insurance agent that enables them to take cancellation measures risk. This cancellation risk communication must in time be sent to the insurance agent. that in the normal course of their timely input is expected.
The insurer shall send the cancellation risk communication by mail, so he should trust according to the BGH, in principle it, that the mailing will properly promoted and delivered on the next business day if it is abandoned in the Federal territory on weekdays. A cancellation risk communication is lost for once by post this – be it and thus the this related and thus failure post-processing measure of insurance agent – a fact not to answer the insurers have. The Supreme Court has also stated in the decision that the applicable only for insurance agents obligation cancellation risk communication on insurance agencies apply mutatis mutandis is if this is just as worthy of protection in individual cases such as an insurance agent. When this is the case, depends on the particular circumstances of each case. There must be a strong convergence of the position of the broker to the one a representative in each case. This was the case, for example, so the Supreme Court, if the broker in the organizational structure of an insurance company is incorporated and receives a grant of the Organization as well as a stock care money. Lawyer Dietmar Goerz of financial service manager sales specialized GPC Law law firm mbH believes, that the decision opened insurance intermediaries some starting points, to put up against a Commission recovery decisions to fight back”. In addition, it is now clear that under certain conditions even insurance agencies against Commission recovery can succeed in the field, that the cancellation risk communications of the insurer was not good enough”, so the Berlin lawyer. Related link: BGH, 01.12.2010 – VIII ZR 310/09