YOUR
Search

    20.12.2019

    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.

    IVASS Regulation No 47 of 27 April 2021: provisions on recovery plans and financing plans of (re)insurance under…
    On 27 April 2021, IVASS published Regulation No 47 on recovery and financing provisions pursuant to Title XVI of Legislative Decree No 209 of 7 September 2005 - Private Insurance Code ("CAP"). With this Re…
    Read more
    Legislative Decree No 187/2020 entered into force: significant amendments to the Private Insurance Code concerni…
    On 9 February 2021, Legislative Decree No. 187 of 30 December 2020 (the "Decree") entered into force. The Decree, adopted to integrate the provisions implementing Directive (EU) 2016/97 (the "IDD"), introd…
    Read more
    IVASS publishes Provisions no. 108/2021 and 109/2021, which envisage the extension of the deadlines for the temp…
    With Provision No. 108/2021 of 27 January 2021, IVASS amended Regulation No. 43/2019 by aligning the insurance regulatory framework with the new provisions laid down in the Decree of the Ministry of Econom…
    Read more
    IVASS Provision No. 107 of 12 January 2021: amendment to the definition of "portfolio" as set forth by ISVAP Reg…
    With provision No. 107/2021, IVASS amended the definition of "portfolio" provided by article 2, paragraph 1, letter f) of ISVAP Regulation No. 14/2008 (by deleting the words: "the portfolio may not be comp…
    Read more
    IVASS, with order no. 101 of 2020, anticipates to 5 February 2021 the entry into force of simplification measure…
    By order No. 97 of 4 August 2020, IVASS completed the implementation in Italy of the rules on distribution of insurance investment products, aimed at pursuing the rationalisation and simplification of the …
    Read more
    Infection contracted during surgery. Health professionals are not liable if they follow the protocols.
    The Judge in charge of preliminary enquiries (Giudice delle Indagini Preliminari) of the Criminal Court of Cosenza, with order issued on 26 March 2020, following the request of the Public Prosecutor, dismi…
    Read more
    INSURANCE | Coronavirus and measures adopted by the supervisory authorities
    Below are the main measures taken in response to the Coronavirus emergency, with reference to the insurance sector. 1. “Cura Italia” (“Healing Italy”) Decree (Law Decree No. 18 of 17 March 2020) Article …
    Read more
    Regulation (EU) 2019/2088: new information duties for ‘Green’ insurance‐based investment product
    On 9 December 2019 Regulation (EU) 2019/2088 was published, which introduced new sustainability‐related duties to disclosure in the financial services sector. Such Regulation also applies to insurance u…
    Read more
    Brexit: the Withdrawal Agreement between the United Kingdom and the European Union and its effects on UK insurer…
    On the 1st February 2020, the Withdrawal Agreement between the United Kingdom and the European Union entered into force. The Withdrawal Agreement provides for a transition period (until the 31st Decembe…
    Read more