Federal Court of Justice, 30 November 2017, Duty to advise based on the insured’s personal knowledge
A former employee, who had worked for a broker, took out an insurance policy through the broker for herself and her husband. Shortly afterwards, the husband was the victim of a car accident and he reported his disability to the insurer. The insurance policy required proof thereof within 18 months, on penalty of forfeiture of cover. However, the insured had allowed this period to expire, and the insurer denied cover, based on the terms of the policy. The insured therefore sued the broker for not having informed him of this 18-month period or of the consequences of its expiry.
The broker argued that its former employee had sufficient expertise to interpret the contractual provisions of the policy she and her husband had taken out.
The judges held that it was the broker’s responsibility to draw the insured’s attention to the deadline for reporting the disability, regardless of the insured’s personal knowledge. The judges held that insureds were not required to acquaint themselves of this provision.
This judgment therefore highlights the difference between the insured’s personal knowledge, which enables him to have an informed view of the content of the contractual provisions, and the intermediary’s duty to draw his attention to certain essential provisions. On these facts, the court therefore chose the second option, stressing that the intermediary must first and foremost fulfil its obligations.