Insurers may raise a time-limitation objection of the claimant’s action

With judgement n. 31071 of 28 November 2019, the Italian Court of Cassation ruled on the insurer’s right to raise a time limitation objection as regards the claim brought forward by a third party against the insured. According to a previous case law, the time limitation objection raised by a third party (e.g. a third party liability insurer) could not lead to the rejection of the claimant’s request against the defendant who had expressly waived his right to raise such objection, but merely to the rejection of the defendant’s claim against the third party.

Whereas, in the above-mentioned decision, the Court of Cassation established that the insurer of (non-compulsory) civil liability, when joined into the proceedings by the insured, is entitled to raise the a time-limitation objection as regards the right claimed brought forward by a third party against the insured. This objection, if grounded, leads to the rejection of the claimant’s request against the insured, even though such objection was not timely raised by the latter.

The Court reaches this conclusion by way of interpretation of article 2939 of the Italian Civil Code, which provides that time limitation can be objected by any interested party, when the party against which the claim is brought does not raise it. According to the Court, the civil liability insurer joined in the proceedings falls within the “interested parties” of article 2939 of the Italian Civil Code, considering that the fact that the claim brought against the insured is not declared time barred would cause a prejudice to the insurer. The insured’s liability is indeed the legal ground on which the insurer’s indemnity obligation is based.

More specifically, according to the Court, if the insurer is joined in the proceeding and appears before the court not only denying insurance coverage but also challenging the insured liability, the judgement that condemns the insured may be invoked against the insurer. The insured, if ordered to pay damages in favor of the third party, will have the right to seek insurance coverage on the basis of the policy, requesting to be indemnified by the insurer. Hence the insurer’s interest to raise a time limitation objection pursuant to art. 2939 of the Italian Civil Code, to challenge not only the insured’s indemnity claim against insurers but also the claim brought by the third party against the insured.

This article is for information purposes only and is not intended as a professional opinion.

For further information, please contact Anthony Perotto, Guido Foglia or Michele Zucca.