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

The recent ordinance no. 8894 of 2020 by the Court of Cassation offers an important reflection on the validity and consequences of claims made clauses in insurance contracts, particularly for healthcare facilities. This clause, which requires the insured to report the claim within one year of the contract's termination, has raised significant questions regarding the merit and unfairness of the contractual conditions.

The Case and the Court's Decision

In the case at hand, the Hospital (OMISSIS) had been ordered to compensate for damages suffered by a child during hospitalization. The hospital requested to be indemnified by its insurance company, Generali Italia S.p.A., which refused the request, citing the presence of the claims made clause. The Court of Appeal upheld the first-instance decision, emphasizing that the clause was not unfair and pursued legitimate interests.

The claims made clause does not affect the typical characteristic of the insurance contract, but rather regulates the role of the compensation claim in relation to the insured event.

Criticisms of the Claims Made Clause

Despite the Court of Appeal's decision, the Court of Cassation upheld the Hospital's third ground of appeal. In particular, the Court held that the clause in question could create a significant imbalance between the parties, as the reporting of the claim was subject to the receipt of a compensation request from the injured third party. This aspect creates a difficult condition for the insured, who finds themselves having to respond within uncontrollable timeframes.

• The clause can make it excessively difficult for the insured to exercise their rights.
• The deadline for reporting is not linked to the insured's conduct, but depends on the behavior of the injured third party.
• The Court highlighted the need to assess the merit of the clause in light of current legislation.

Conclusions

Judgment no. 8894 of 2020 represents an important milestone in Italian jurisprudence regarding insurance contracts and claims made clauses. It emphasizes the need for a careful balance between the protection of insurance companies' interests and the rights of the insured. The Court of Cassation affirmed that clauses that make the exercise of rights difficult are to be considered null and void, paving the way for a broader reflection on the legitimacy of contractual clauses in the insurance sector.