Although condemned by the courts, certain exclusion clauses drafted too imprecisely by insurers continue to appear in contracts. In its latest annual report, the insurance ombudsman asks that these practices cease.
The services of the insurance mediator, Arnaud Chneiweiss, recorded nearly 20,000 referrals last year (see box) according to the latest activity report published in August 2022. This document reveals that in 31% of cases, the mediator went in the direction of the insured while in 69% of cases, he confirmed the correct application of the contract by the insurer. Any referral is therefore not in vain. But the mission of the mediator does not stop there. Its role also consists of learning lessons from recurring complaints and forwarding to insurers the malfunctions noted in order to correct certain practices. It also proves to be a force of proposal. In his report, he indicates that he has been fighting, since taking office in the spring of 2020, against the vague exclusion clauses for which he asks professionals not only to no longer oppose them to their policyholders but also to remove them from contracts.
Clauses declared illegal by the courts
“Failure to observe the rules of the art” for the construction of a house, “lack of maintenance” of a good, “negligence of the insured”, so many expressions that he considers should be banned from the insurance exclusion clauses. Why ? Because they do not comply with the requirements of the Insurance Code which provide that an exclusion clause, to be valid, must be “formal and limited” (art. L. 113-1), that is to say precise. Failing this, the insurer is required to bear the loss and damage caused by fortuitous events or caused by the fault of the insured. For more than 20 years, for example, the Court of Cassation has regularly condemned the vague exclusion clause of “lack of maintenance”, a concept that is too vague for the insured to know exactly the extent of his guarantee. Without specifying what the “good maintenance” of a car means, for example, how can a motorist be sure to properly maintain his vehicle and to be well covered by his insurer? Everyone can interpret this imprecise notion differently. However, according to the insurance ombudsman, “we should not have to interpret exclusion clauses”.
Professionals who turn a deaf ear
Despite regular legal interventions, insurers persist in inserting such vague exclusion clauses into their contracts. For Arnaud Chneiweiss, this is no longer acceptable. Even if he specifies that he understands the aims pursued (to empower the insured by making him an actor in risk prevention, to fight against fraud, etc.), according to him, this cannot go through “the opposition to the insured of clauses explicitly condemned by our highest judicial jurisdiction”. Especially since this attitude necessarily harms the image of the profession and irritates the Court of Cassation, which toughened its case law in June 2021. From now on, if a few words are imprecise in an exclusion clause, it is the whole of the clause which is considered invalid. In the case in question (1), the guarantee exclusion clause appearing in the loan stipulated that the insurer did not take charge of ” incapacities and disabilities […] resulting from: low back pain, sciatica, back pain, neck pain and other “back pain””. The judges first held that in this formulation, only the expression “and other back pain” was not formal and limited. The rest of the clause being declared clear, formal and limited, the insurer was well founded in denying its guarantee. Indeed, the insured suffered from right lumbosciatalgia, a pathology expressly referred to. But the Court of Cassation did not follow this reasoning. She considered the entire clause invalid and unenforceable against the insured.
It remains to be seen whether the mediator’s appeal will weigh more heavily than the decisions of the Court of Cassation. While waiting for the insurance companies to deign to eliminate the vague notions of their contracts, the insured who would be refused a guarantee in such a context are invited to defend themselves by seizing the mediator and if necessary, the justice. The local UFC-Que Choisir associations also intervene to settle disputes between consumers and insurers.
Insurance mediation (LMA) is one of the most important sector mediations in terms of the volume of referrals processed. In 2021, it received 19,684 referrals, an increase of 13% compared to 2020 and an increase in referrals of one third in 2 years. Three reasons for this:
- the 2019 justice modernization law which requires mediation to be attempted for disputes below €5,000 before going to court;
- better knowledge of the existence of mediation, access to which is free for policyholders;
- the possibility, since December 2020, of seizing the mediator for disputes relating to professional insurance.
(1) Court of Cassation, Civil Chamber 2, June 17, 2021, appeal noh 19-24.467.