Car accident abroad: claiming compensation from Italy

Every company that insures vehicles in an EU Member State must appoint, in each of the other Member States, a claims representative (mandatario per la liquidazione dei sinistri). The representative lives or is established in the country for which it is appointed, deals with the injured person in that country’s official language and handles the claim on the insurer’s behalf (art. 152 of the Italian Private Insurance Code, Legislative Decree no. 209 of 2005). A resident of Italy can therefore claim from the Italian representative, as well as from the foreign insurer or the person liable (art. 153).

The registration plate is enough to find out who they are. The Italian Information Centre (Centro di informazione italiano), run by Consap, the state-owned company that also runs the Italian fund for road accident victims, provides the name and address of the insurer, the policy number and expiry date, and the details of its representative in Italy; the request can be made within seven years of the accident (arts 154 and 155).

One difference from accidents in Italy should be clear from the start. The direct compensation scheme (indennizzo diretto), under which a driver usually claims from their own insurer, does not apply when a vehicle registered abroad is involved (art. 149(2)): the claim goes to the liable party’s insurer or its representative.

Once the claim is received, the insurer or its representative must, within three months, make a reasoned offer or explain why it is not making one (art. 152(5)). A generic letter or silence is not enough.

If no reasoned reply arrives within three months, or if the insurer has not appointed a representative in Italy, the injured person can turn to the Italian compensation body (Organismo di indennizzo italiano), which is Consap (arts 296 and 298). The same body steps in when the vehicle that caused the accident has not been identified, when its insurer cannot be identified within two months of the accident, and when the foreign insurer is being wound up (art. 297).

Two rules about this route should be known before choosing it. The body does not act, or stops acting, if the injured person sues the insurer or the person liable (art. 298(2)). And to establish liability and assess the loss it applies the law of the State where the accident happened (art. 298(7)), just as a court would.

If negotiations do not lead to an acceptable result, there is no need to sue in the country of the accident. The EU regulation on jurisdiction allows a policyholder, an insured person or a beneficiary to sue the insurer in the courts of the place where they are domiciled, and applies the same rule to a direct action by the injured party (arts 11(1)(b) and 13(2) of Regulation (EU) no. 1215/2012). The Court of Justice of the European Union made this clear in Odenbreit: the injured person can sue the foreign insurer in the State where they live, if a direct action is available (judgment of 13 December 2007, C‑463/06, on the regulation then in force).

Service of proceedings is simpler too. According to the Court of Justice, the representative’s powers must include accepting service of the documents needed to start a compensation claim (judgment of 10 October 2013, C‑306/12, Spedition Welter). Someone who lives in Milan can therefore sue a German or French insurer before the Court of Milan, serving the claim on its representative in Italy.

The Italian court, however, will decide by applying the foreign law. It establishes that law of its own motion, also with the help of experts or of the Ministry of Justice (art. 14 of Law no. 218 of 1995), but the claimant is well advised to set it out from the start, with the sources of the country concerned.

Before an Italian court, the law applicable to the claim is determined by the EU «Rome II» Regulation. The general rule is the law of the country where the damage occurs, which in a road accident means the place where the victim was injured, even if the consequences are felt after returning to Italy (art. 4(1) of Regulation (EC) no. 864/2007). For the relatives of someone killed in an accident, the Court of Justice has held that their losses are «indirect consequences» of the accident and follow the same law (judgment of 10 December 2015, C‑350/14, Lazar).

There is an important exception: if the person liable and the injured person are both habitually resident in the same country, the law of that country applies (art. 4(2)). If two drivers living in Italy collide in Spain, Italian law governs the claim between them. The regulation also contains an escape clause for cases manifestly more closely connected with another country (art. 4(3)).

The law identified in this way decides almost everything: who is liable and to what extent, which heads of loss are compensated and how they are assessed, which relatives have a claim of their own, and also the limitation period, including when it starts, and how it is interrupted and suspended (art. 15). The time for bringing a claim may therefore differ from the Italian one, and may be shorter. It also decides whether the injured person can claim directly from the insurer (art. 18).

For personal injury, the regulation nevertheless asks the court to take account of all the victim’s actual circumstances, including actual loss of earnings and the costs of care and rehabilitation, when the accident takes place in a State other than the one where the victim lives (recital 33). A claimant who sues in the country of the accident may find different rules: France, Spain, Austria and Belgium, among others, apply the Hague Convention of 4 May 1971 on the law applicable to traffic accidents, which Italy has not joined.

Consider a business owner living in Milan, on a work trip to France. A van registered and insured in Germany, driven by someone living in Germany, hits them as they cross a street in Lyon. The injuries are serious: months of treatment, a permanent impairment and a long break from work.

Back in Milan, they can claim from the German insurer’s Italian representative and, if the offer is inadequate, sue the insurer before the Court of Milan. As a rule, however, the court will apply French law, the law of the place of the damage: the heads of loss, the assessment criteria and the time limits will be French, not the Italian tables. Loss of earnings and medical costs incurred in Italy must be documented precisely, because the court has to take them into account.

If instead, on the same trip, the accident had been caused by a colleague living in Milan and driving an Italian car, Italian law would govern the claim between them, with the Italian criteria for assessing personal injury. That is why the first question is not only where it happened, but who is liable and where they live.

At the scene, when circumstances allow, it is worth collecting what is hard to reconstruct later:

• the registration plate and country of registration of the other vehicle, the name of the insurer and the number of the policy or of the international insurance certificate (green card);
• the European accident statement, which has the same layout in every language, or the details of the police who attended;
• photographs of the scene and of the vehicles, names and contact details of witnesses;
• the reports of the foreign emergency department and hospital, with the invoices.

Back home, the order is this: ask the Information Centre for the insurer’s and representative’s details; continue treatment in Italy, keeping every report and every expense; have the injuries assessed by a forensic doctor once they have stabilised; send the representative a written, documented claim, keeping proof of the date of receipt, from which the three months run. Meanwhile, the limitation period under the foreign law must be checked, as it may differ from the Italian one. An offer received before the injuries have stabilised should be weighed with care, because accepting it and signing the receipt usually closes the claim.

When the other vehicle is foreign but the accident happens in Italy, the route is different: the claim goes to the Italian Central Bureau (Ufficio centrale italiano), which settles damage caused in Italy by vehicles registered abroad and must reply within three months (arts 125 and 126 of the Private Insurance Code). In personal injury claims arising from accidents abroad, the firm handles the claim to the representative, the forensic assessment and, where needed, the proceedings in Italy.