On December 29, 2015, an entirely new Insurance Code was promulgated. It largely borrows the provisions of the previous code, but there are many new points. Some of them bring clarity to long-discussed issues, while others create preconditions for new controversial interpretations.
Conclusion of an insurance contract for future insurance interest
Among the new situations is the introduction of the possibility of concluding an insurance contract for future insurance interest. Under the repealed regulation, the insurance interest should have existed at the time of concluding the insurance contract. It is currently permissible to insure a future good or a future liability that did not arise at the time of signing the contract. Such a permit is an incentive for the development of business initiative by the insured.
Retroactive effect of the insurance contract
For the first time the institute of retroactive effect of the insurance contract received legal regulation. These public relations existed before the adoption of the new code, but now the legislator has decided to align the positive legal framework with the factual status quo, devoting to these public relations several provisions of Section Two of Chapter Thirty-six. Retroactive coverage allows the insurance to cover insurance events that occurred before the conclusion of the insurance contract, provided that the insurer or the insured did not know about the occurrence of this event at the conclusion of the contract. This authorization is widely applicable in some risky occupations, such as medicine. There are many cases in which an injured patient files a claim against the doctor or hospital years after the harmful event occurred and after the insurance policy in force at the time of the relevant medical operation or other intervention has expired. Even if they have been involved in the specific medical manipulations, it is often impossible for the medical staff to know that the patient has been harmed by these manipulations, especially if the damage occurred at a later time. In this situation, it is economically justified for the insurance coverage to cover those events for which the person causing the damage is liable to the injured party.
Fixed insurance value
With Art. 387 of the Code introduced the possibility of negotiating a fixed insurance value. This is the value that the insurer would pay in the event of an insured event, and it does not depend on the amount of actual damage caused. The existence of such a clause saves the effort of calculating the actual amount of damages and possible disputes between the insured and the insurer regarding this amount.
Limitation period for due insurance indemnities
Following a consistent approach to the old code, and in accordance with the general provision of Art. 111, p. "B" of the Law on Obligations and Contracts, the new legislation provides for a three-year statute of limitations for the benefits due under the insurance contract. The limitation period begins to run from the date of occurrence of the insured event. A novelty in this regard is the permission of Art. 378, para. 3 of the Code, according to which in case of retroactive effect of the insurance contract the beginning of the limitation period is set not with the occurrence of the event, but with the presentation of the insurance claim within the term of the current contract. In this way, real protection is provided in connection with insurance events that occurred before the conclusion of the insurance contract, but brought to the notice of the insured at a later time. It is this moment that should be considered relevant to the obligation of the insured to notify the insurer of the event, respectively - to file his insurance claim.
Limitation period for receivables arising from excess
Special attention is paid to the statute of limitations in connection with receivables arising from excess, defined in Art. 378, para. 4 as “any deterioration of the health condition of the injured person, which is in direct and immediate causal connection with the occurred insurance event”. This deterioration could occur significantly after the initial adverse event, and it is often impossible to predict at the time of the event whether an excess will occur and to what extent. The fourth paragraph of Art. 378 provides that the limitation period for receivables arising from damages from excess begins to run from the occurrence or knowledge of the excess. This permission is fair and is analogous to the answer given by the Supreme Court of Cassation with an Interpretative Decision of 23.12.2015 on Interpretative Case № 1 on the inventory for 2014 of the General Assembly of the Chamber of Commerce.
Limitation period for receivables arising from recourse and subrogation
The adoption of the fifth and sixth paragraphs of the same article finally clarifies the controversial issue regarding the statute of limitations for recourse and subrogation claims filed against and by the insurer. Once the insurance indemnity has been paid to a third injured party by the insurer, the latter has the right to subrogate to the rights of the injured party against the person who caused the damage and his insurer. In the other case envisaged by the law, the insured has paid indemnity to the third party, which indemnity can be claimed for payment by the insurer under the insurance contract. Quite rightly, the legislator has accepted that the five-year period for filing these claims, aimed at compensating the person who originally paid the indemnity, starts from the moment when the indemnity is paid to the third party, and not from the occurrence of the insurance event or from filing of the claim by the third party. It is quite logical that the claimant's receivable arises only after a real payment has been made. Only by making this payment can the refund of the amount paid be sought in a recourse way.
The rule of the last paragraph of Art. 378 is called upon to defend the interest of the person claiming compensation from the insurer, regardless of whether it is the insured, a third beneficiary or a third injured person. According to the said text, the limitation period for the claim against the insurer ceases to run for the period during which the insurer has not ruled on the claim filed before it. In this way, the application of the maxim is ensured that no one can benefit from their own unscrupulous behavior.
General conditions to the insurance contract
The current regulation of the general conditions to the insurance contract through the explicit declarative rule of art. 348, para. 3. The same states that the general conditions do not constitute a secret protected by law and the insurer may not refuse access to them. This finding should be notorious even without the existence of positive legal regulation. However, the legislator has clearly considered it appropriate to provide maximum protection to the consumer, who is presumably in a less favorable and less informed position.
Legal status of a passenger traveling with a driver who has consumed alcohol
Among the most controversial new points in the code is the settlement of the "responsibility" of the victim in an accident when he was traveling in a motor vehicle with a driver who had consumed alcohol. This innovation provoked violent public reactions, largely due to the lack of information and misunderstanding of the regulations by citizens. The rule of Art. 477, para. 4 of the Code does not provide that the driver's liability to third parties will be shared by the same driver's companion. Only the driver is responsible for his illegal behavior and he should bear the adverse consequences of the same. What the new rule allows is the possibility for the guilty driver to object to his companion for causing the damage suffered by that same person. In other words, the compensation due to this person by the driver, respectively by his insurer, can be reduced due to the fact that the person has voluntarily put himself in a situation predisposing to an accident. Such a construction is known and common in tort law - in cases where the victim by his own behavior has contributed to the occurrence of damage, their direct cause should not bear full responsibility. This rule has so far been applied both in the settlement of insurance relations and in other areas of law. The new code de jure does not introduce a new norm, but only explicitly enshrines existing provisions.
The behavior of the victim is not illegal and therefore does not give rise to liability for damages - as a rule, this liability weighs on the guilty driver. At the same time, however, as far as the victim was aware of the driver's use of alcohol, he agreed with the increased risk posed by the driver's condition. That is why the law takes into account this behavior, providing for the possibility for the person not to receive compensation or to be reduced. Thus, without imposing legal liability, the norm requires taking more responsible behavior towards the victim's own life and health. There is a warning that if the person is injured by the drunk driver, this will to some extent be due to the fact that the victim himself has consciously chosen to get on this driver. Similar judgments were made by the Supreme Court of Cassation in item 7 of the above-mentioned Interpretative Decision under Interpret. e. № 1/2014. The court also mentioned that the burden of establishing that the person knew about the use of alcohol, including narcotics or narcotics, rests with the driver, respectively - with his insurer. In the event that they fail to prove that the victim was aware of the prohibited substances used, the guilty driver will have to take full responsibility.