Insurance mala gestio may come into play when the company unjustifiably delays claim handling, refuses payment without adequate grounds or conducts negotiations contrary to the obligations of fairness and diligence. However, it is not enough for the settlement to be slow or lower than your expectations: one must understand which obligation was breached and what additional damage resulted from it.
I will explain how to distinguish a simple disagreement on quantification from an insurer breach, what value the company-prepared assessment holds, and when interest, increased out-of-pocket expenses or other losses can be added to the main compensation. An initial distinction is decisive: the position of the injured party in third-party motor liability does not coincide with that of the insured claiming compensation under their own policy.
When insurance delay becomes relevant
Not every delay is mala gestio. The company must be given the time necessary to receive the notice, gather documents, verify coverage and evaluate the damage. The delay becomes legally significant when it exceeds the time reasonably necessary or breaches a term provided by law or contract, without the insurer indicating a concrete and relevant reason.
The type of policy also matters. In property insurance, such as fire, theft, accident or property coverage, the dispute normally concerns the performance of the contract: one must verify the insured risk, deductible, excess, exclusions and settlement criteria. In liability insurance, governed by Article 1917 of the Civil Code, the enterprise must instead hold the insured harmless from the sums the latter must pay to the third party, within the limits of the coverage.
For motor vehicle liability, a special procedure exists. Articles 145 and 148 of the Insurance Code provide, in the presence of a complete request, specific terms and contents for the offer or reasoned denial. Generally speaking, the offer regarding property damage must be formulated within sixty days, reduced to thirty if the claim form is signed by the drivers involved; for personal injury, the term is ninety days. The complete regulations can be consulted in the Private Insurance Code.
An incomplete request changes the starting date. In motor liability, the enterprise can request necessary additions within thirty days and the terms start running again from the receipt of the missing data. Refusing to allow essential assessments can also suspend them. For this reason, the date of the notice alone does not always prove that the insurer is already in delay.
Proper, improper mala gestio and simple default
Proper mala gestio concerns the insured. It arises in liability insurance when the company handles the claim in breach of the duties of diligence, fairness and good faith and, in doing so, causes damage to its own insured. It may happen, for example, that an unjustified refusal to negotiate a well-founded claim exposes the responsible party to interest, expenses or a debt greater than what they would have sustained with timely management.
The company's liability does not automatically stem from the judge recognizing a sum greater than the offer to the third party. It is necessary to prove the breach, the damage suffered by the insured and the causal link between the two. An initial assessment that later turns out to be wrong may be negligent, but not necessarily so: available information, clarity of liability and conduct held during the negotiation matter.
So-called improper mala gestio instead indicates, especially in motor liability, the unjustified delay of the insurer towards the injured third party. The consequences concern interest and, when proven, the greater damage from delay, which can weigh on the enterprise even beyond the policy limit. However, this does not mean the insurer must always pay compensation capital beyond the limit.
Default in performance and proper mala gestio remain distinct concepts. The former concerns delay in the payment of the obligation; the latter negligent handling of the claim that harms the insured. The distinction and related effects are summarized in the review by the Court of Cassation on judgment no. 28811 of 2019. For motor liability, the Court also reaffirmed in 2024 that interest and monetary revaluation linked to the delay run from formal notice of default, identified according to the rules applicable to the claim, as shown in the civil review of the Court of Cassation of December 2024.
How to contest a lowball assessment
The insurance assessment is not a definitive decision. It is a technical evaluation prepared in the interest of claim settlement and can be contested. Before discussing the overall figure, it is advisable to identify the exact point of disagreement: excluded damages, unit costs set too low, depreciation applied incorrectly, repairs deemed unnecessary or injuries considered unrelated to the event.
The contestation is more effective if it links each item to evidence. For material damages, photographs, analytical estimates, invoices and a technical report explaining why certain works derive from the claim can be useful. For personal injury, coherent certifications, documentation of the treatment path and, when the condition has stabilized, a medico-legal evaluation of sequelae are required.
In motor liability, you must also allow inspection of the asset according to the modalities provided by Article 148. Repairing too quickly can weaken the evidence: the law allows proceeding after the deadline reserved for assessments expires or after their early completion. If you intervene earlier, the enterprise's evaluation may depend on the repair invoice, while photographs and replaced parts can become decisive in reconstructing the damage.
If the insurer pays a sum, a distinction must be made between advance payment and final balance. In the motor liability procedure, the offered sum must be paid even when the injured party declares they do not accept it and it is imputed to the final settlement. In other policies, any receipts or settlement declarations must be read carefully: signing a general waiver may prevent further requests, while simply receiving a payment does not always have the same effect.
What additional damages can be claimed
Delay damages must be concrete. In addition to the main insurance performance, interest owed for default and, when conditions are met, the greater damage provided by Article 1224, second paragraph, of the Civil Code can be claimed. The latter does not coincide with the annoyance caused by waiting: it must represent an additional and demonstrable financial loss.
Depending on the circumstances, financial costs or additional out-of-pocket expenses that would not have been incurred with timely payment may become relevant. The same applies to economic loss linked to the unavailability of the asset, provided it is documented and directly attributable to the delay. Claiming to have had difficulties is not enough: expense, duration, necessity and causal link must be proven.
Non-pecuniary damage does not arise automatically from uncertainty or worry. Waiting alone is not enough to justify an autonomous item. Serious impairment of a protected interest is required, accompanied by elements allowing it to be distinguished from the normal distress of an economic dispute.
In liability, the policy limit requires a further distinction. If it was sufficient at the time of the event but becomes insufficient due to the company's delay, the insured can argue that delayed management compromised their right to full coverage. If, instead, the limit was already insufficient from the beginning, the delay does not cancel the original excess: interest and greater damage may come into play, but capital not covered by the contract does not automatically become insured.
Steps to consider before filing a lawsuit
The contestation must separate the claims. It is useful to indicate the main performance deemed owed, the individual excluded or underestimated items, the date from which the delay is considered to have accrued and any additional damages. A generic request for "mala gestio" does not replace the description of the contested conduct and its consequences.
In a motor claim, the request must respect the contents required by the Insurance Code and, before action, the terms of Article 145 must elapse. Subsequently, the dispute for circulation damages ordinarily requires the invitation to assisted negotiation provided by Article 3 of decree-law no. 132 of 2014, barring exceptions established by the same norm.
If the litigation stems instead from the insurance contract, prior to judicial action it is normally necessary to undertake mediation, pursuant to Article 5 of legislative decree no. 28 of 2010. The qualification of the claim matters: a third-party injured claim and an insured claim based on their own policy may follow different paths.
It is therefore prudent to keep the policy, notice, requests for integration, assessments, offers, denials and proof of expenses caused by the wait in an orderly manner. Chronology makes the delay verifiable: it shows what information the enterprise possessed, when it received it and how long it took to take a reasoned position.
Agreement, Insurance Arbiter or trial
An agreement can close only part of the dispute. You can accept a sum as an advance and maintain the contestation on the remainder, provided this appears clearly and an incompatible waiver is not signed. If the distance depends on a few technical items, a new shared evaluation may be more useful than a general discussion on company conduct.
The Insurance Arbiter constitutes an out-of-court alternative for disputes falling within its competence and economic limits established by ministerial decree no. 215 of November 6, 2024. The procedure is documentary: the body does not arrange technical assessments nor take testimonies. It may therefore be less suitable when the conflict requires complex investigations into causes or material extent of injuries.
Trial instead allows evidentiary proceedings and, when necessary, a court-appointed technical consultancy. However, it has costs, times and risks that must be weighed against the sum actually in dispute. The choice does not depend solely on the value of the claim: quality of evidence, technical nature of the disagreement and the possibility of proving damage additional to the compensation matter.
Frequently asked questions
Does failure to comply with deadlines automatically prove mala gestio?
No, but it is an important element. One must verify whether the request was complete, whether investigations were necessary, whether there were suspensions provided by law and what damage the delay caused. Proper mala gestio also requires proof of negligent management and prejudice suffered by the insured.
Can I refuse an assessment made by insurance?
You can contest its conclusions, precisely indicating erroneous or missing items and producing contrary technical elements. However, it is not advisable to prevent inspection or necessary investigations: in motor liability, unjustified refusal can suspend terms granted to the enterprise and make proving the extent of damage harder.
If I cash the offer do I lose the right to the remainder?
Not necessarily. In the motor liability procedure, payment executed after non-acceptance counts as an advance on final settlement. For other policies, cause and declarations requested by the enterprise must be checked: a settlement receipt or transaction can have broader effects than simply collecting the sum.
Can I claim damages for anxiety caused by the wait?
Ordinary distress is not enough. Autonomous non-pecuniary damage requires serious impairment of a protected interest and adequate evidence. It is instead more frequent that delay produces pecuniary consequences, such as interest, necessary expenses or documented economic losses directly linked to non-payment.
Must I attempt an agreement before going to court?
As a rule, a preliminary step is provided. For disputes arising from insurance contracts, mandatory mediation normally operates; for compensation from circulation of vehicles and watercraft, assisted negotiation is provided, besides motor liability procedure terms. Correct sequence depends on the title of the claim and any exceptions.
How to direct the claim
The word mala gestio does not replace proof. The claim must show which obligation was breached, when the delay began, what sums were owed and what additional loss derived from it. If you want to clarify the difference between indemnity, interest and additional damages in your situation, you can contact us bringing the policy and the chronology of communications with the enterprise.