The Claims Made Clause in Judgment Cass. Civ. No. 8894 of 2020: Reflections and Implications

The recent ordinance of the Court of Cassation No. 8894 of 2020 offers significant food for thought regarding the validity of the claims made clause in a civil liability insurance contract. In this judgment, the Court established that this clause, while not abusive, can present issues of merit, especially in situations where the timing of the compensation claim could penalize the insured.

The Context of the Judgment

The case concerned a hospital sued by the parents of a child for damages suffered during hospitalization. The hospital, ordered to pay compensation, sought to be indemnified by the insurance company Generali Italia S.p.A., which invoked the applicability of the claims made clause, requiring the claim to be reported within twelve months of the contract's termination.

The Court of Cassation established that the claims made clause is not inherently abusive, but it can become undeserving of protection when it creates a significant imbalance between the parties.

Implications of the Claims Made Clause

The claims made clause, as highlighted by the Court's decision, can lead to a significant imbalance between the parties. It obliges the insured to report the claim within a specified period, which can be critically linked to the timeliness of the compensation claim by the third-party victim. This aspect raises questions about the actual protection offered to the insured, as their right to enforce the insurance benefit depends on external and uncontrollable events.

• The validity of the clause depends on its compliance with legal limits.
• The trial judge must assess whether the clause creates an imbalance between the parties.
• It is necessary to consider how the clause affects the insured's right to exercise their action.

Conclusions

In conclusion, the judgment of the Court of Cassation No. 8894 of 2020 underscores the importance of a balanced assessment of contractual clauses in the insurance sector. The claims made clause, while not inherently abusive, must be carefully scrutinized to prevent it from creating a disadvantageous condition for the insured. It is essential that the parties involved understand the legal and practical implications of such clauses to ensure adequate protection of their rights.