I OVERVIEW

The German insurance market contributes substantially to Germany's prosperity and economic growth.2 In 2015, the insurance industry generated around €90 billion of Germany's gross value added and 1.2 million jobs were linked to the industry. Between 1995 and 2014, 0.1 percentage points of Germany's yearly economic growth were directly allocated to the insurance industry. Furthermore, the insurance industry plays an important role for the German economy in general as it minimises the economic risks of companies and acts as an institutional investor.3

In this context, the effective and cost-efficient settlement of insurance disputes is an important driver for the industry's success. It ensures legal certainty and fosters the trust that is placed into the sector. The following essay will give an overview of the legal framework for insurance disputes in Germany and highlight the current jurisprudence of German courts.

II THE LEGAL FRAMEWORK

i Sources of insurance law

The Insurance Contract Act

The main source of insurance law in Germany is the Insurance Contract Act (VVG). It sets out the general rules for insurance contracts as well as the statutory provisions for specific insurance branches. The VVG applies to all types of insurance contracts, except for reinsurance and maritime insurance contracts (Section 209 VVG). It came into force in 1908 and remained largely unchanged until a major reform in 2008.4 The objective of the reform was to modernise German insurance law and improve the position of the insured person.5

Important changes included:

  1. the introduction of a right to revoke the insurance contract by the policyholder within 14 days of the conclusion of the contract (Section 8 VVG);
  2. the introduction of certain advisory, documentation and information duties of the insurer (Sections 6 et seq. VVG);
  3. the abolition of the 'all or nothing' principle6 in favour of the 'more or less' principle7 (Sections 26(1), 28(2), 81(2) VVG);
  4. the abolition of insurance-specific limitation periods, rendering applicable the general limitation period of three years pursuant to Section 195 of the German Civil Code (BGB); and
  5. the introduction of a new place of jurisdiction at the place of the policyholder's residence (Section 215(1) VVG).

The overarching purpose of the reform was to provide greater protection to the insured person by setting out restrictions to the freedom of contract. The restrictions shall, however, not apply to large risks and open policies.8 Large risks are risks of: (1) certain transportation and liability insurances (such as insurances for railway vehicles, aircrafts or the transportation of large goods); (2) certain credit and suretyship insurances; and (3) certain property, liability and other indemnity insurances where the policyholder exceeds a balance sheet total of €6.2 million, a net turnover of €12.8 million or an average of 250 employees per fiscal year.9 These insurances are typically taken out by big companies that are not in need of protection by the VVG. All other risks are deemed 'mass risks', to which the restrictions to the freedom of contract apply without limitation.

German Civil Code

Another source of German insurance law is the German Civil Code (BGB), which is applicable insofar as no specific provisions of the VVG apply. The area of most relevance for insurance contracts is its section on the use of standard business terms. Almost all insurance contracts contain standard business terms of the insurer, especially insurance contracts concluded with a consumer. Sections 305 et seq. BGB set out the rules for the incorporation of standard business terms into the contract, the assessment of their effectiveness and the interpretation of their content. These rules apply regardless of whether the other party is a consumer or not. However, stricter requirements apply in case a consumer is concerned.

Other provisions applicable to insurance law are the rules on the statute of limitations. As the special limitation periods for insurance claims were abrogated with the VVG reform in 2008, the general rules in Sections 195 et seq. BGB apply. The limitation period is three years,10 commencing at the end of the year in which the claim arose and the insured party obtained knowledge of the circumstances giving rise to the claim (or would have obtained such knowledge if it had not shown gross negligence).11 An exception applies if the limitation period is suspended. For insurance contracts, Section 15 VVG provides an insurance-specific suspension rule. Where a claim arising from an insurance contract has been registered with the insurer, the limitation period shall be suspended until such time as the applicant has received the insurer's decision in writing. All other rules for suspension are set out in Sections 203 et seq. BGB.

German Code of Civil Procedure

A further source of German law that is especially relevant for insurance disputes is the German Code of Civil Procedure (ZPO). It sets out the general rules for litigation proceedings and is also applicable to insurance disputes as far as no specific rules are set out in the VVG.

One of the main principles of German civil procedural law is that each party has to present the facts and prove the case upon which its claim or defence is based. Unlike in common law jurisdictions, there is no pretrial discovery or document production. In general, no party to litigation proceedings is therefore obligated to deliver to the other party the documents or evidence necessary for its case. However, there are exceptions to this principle. One example is Section 142 ZPO, which sets out that the court may direct one of the parties or a third party to produce records or documents, as well as any other material in its possession if one of the parties made reference to it. Another example is Section 422 ZPO, which stipulates the obligation of a party to produce certain documents favourable for its opponent if it is entitled to demand the surrender or production of the respective documents pursuant to civil law stipulations.

With regard to insurance disputes, the VVG stipulates specific disclosure obligations of the insured person. According to Section 31(1), the insurer may, after the occurrence of an insured event, demand that the policyholder or the beneficiary shall disclose all the information necessary to establish the occurrence of the insured event or the extent of the insurer's liability. In addition, the insurer may demand supporting documents to the extent that the policyholder may be reasonably expected to obtain them. The policyholder is even obligated to disclose facts unfavourable to him or her. The VVG therefore sets out more extensive disclosure obligations of the insured person than it would have under the rules of the ZPO. However, Section 31 VVG does not set out any consequences in case of non-compliance. Therefore, the insurer will usually incorporate the policyholder's disclosure duties in its general terms and conditions and stipulate contractual consequences for non-compliance.12

Another specific aspect of insurance disputes concerns direct claims of third parties against the insurer. This issue typically arises in relation to liability insurances that cover damage claims made by third parties against the policyholder. In general, a third party cannot make direct claims under the insurance contract against the insurer of the damaging party. Therefore, the third party may only enforce its damage claim against the policyholder ('liability claim') who may then raise a claim against his or her insurer ('coverage claim'). However, there are exceptions to this rule. One is set out in Section 115 VVG, which provides a direct claim of the third party against the insurer if: (1) third-party vehicle insurance is concerned; (2) the policyholder has become insolvent; or (3) the policyholder's whereabouts are unknown. If one of these requirements is fulfilled, the third party may directly claim payment from the insurer and initiate court proceedings against it without having to proceed against the policyholder first.

The ZPO also stipulates the place of jurisdiction for litigation proceedings regarding claims in connection with the insurance contract. Optional places of jurisdiction are the place of the insurer's registered seat,13 the place of performance of the contract14 or the place of the insurer's branch office.15 In general, all these venues favour the insurer. With the introduction of Section 215 VVG in 2008, the legislator established a new place of jurisdiction that favours the insured person. The policyholder can now also choose to proceed against the insurer at the court in whose district he or she has his or her place of residence. For actions brought against the policyholder, only this court shall have jurisdiction. The parties can only deviate from this place of jurisdiction to the detriment of the policyholder after the dispute has arisen or if the policyholder moves his or her domicile to a different country after signing the contract or if his or her domicile is unknown at the time the action is filed.16 The purpose of this change was to guarantee the policyholder access to a court near his or her domicile.17 This was supposed to compensate for the subject-specific and economic advantages of the insurer.

ii Insurance regulation

German Insurance Supervision Act

The main legal source for insurance regulation is the German Insurance Supervision Act (VAG), which implemented in 2015 the European Solvency II Directive (Directive 2009/138/EC of 25 November 2009 on the taking up and pursuit of the business of Insurance and Reinsurance (Solvency II) (recast)). It enables the supervision of insurance companies in their legal and financial operations (Section 294(2) VAG) by the German Federal Financial Supervisory Authority (BaFin) and the supervisory authorities of the federal states. The BaFin is the competent supervisory authority for private insurance companies that operate in Germany and are of material economic significance as well as for public insurance companies that participate in free competition and operate across the borders of any federal state (Section 320 VAG). The supervisory authorities of the federal states are mainly responsible for overseeing public insurers whose activities are limited to the federal state in question and private insurance companies of lesser economic significance.18

Therefore, all private and public insurance companies, pension funds and reinsurers carrying out private insurance businesses within the scope of the VAG and that have their registered office in Germany are subject to supervision.19 Social insurance institutions20 are not supervised under the VAG but regulated by other government agencies.

The primary objective of the VAG is the protection of policyholders and beneficiaries (Section 294(1) VAG). To ensure that only regulated companies offer insurance services, insurance companies must acquire a licence before commencing business operations (Section 8(1) VAG). To be granted authorisation to operate, the insurance company must fulfil a number of requirements. This includes, inter alia, that the company:

  1. operates in the legal form of a public limited company;21
  2. has its legal seat in Germany;22
  3. engages only in insurance businesses and directly related businesses and observes the principle of business segregation (e.g., a life insurance company may not at the same time provide health or property insurance);23
  4. submits a detailed business plan that contains the company's charter and sets out which insurance segments will be operated as well as the risks that are intended to be covered;24
  5. demonstrates that it has a sufficient amount of its own funds25 as well as sufficient resources to develop the business and sales organisation;26 and
  6. has at least two members of the management board that are 'fit and proper' persons.27

In its ongoing supervision, the BaFin monitors, among other things, whether the insurance company complies with all statutory and regulatory requirements, whether it is capable of fulfilling its insurance contracts and whether it observes the principle of good business practice (e.g., keeping proper accounting records and rendering proper accounts).28 In accordance with the Solvency II Directive, it also supervises the company's solvency, in particular the fulfilment of certain capital requirements.

In case of any undesirable conduct by an insurance company, especially non-compliance with legal requirements, the BaFin may take any appropriate and necessary measures to prevent or eliminate this conduct (Section 298 VVG). For consumers, it is also possible to file a complaint against an insurance company with the BaFin.29 The BaFin will review the complaint and issue a report with its legal opinion. If necessary, it may also take regulatory steps against the insurance company. However, it is not authorised to render a binding decision or give legal advice.

iii Insurable risk

German insurance law differs between two types of insurable risks: socially insured risks and privately insured risks. Socially insured risks are codified in the German Social Code (SGB), which distinguishes between health insurance, unemployment insurance, nursing care insurance, pension insurance and occupational accident insurance. They are statutory insurances that do not come into effect by agreement but are taken out by law when the insured person fulfils certain requirements.

The VVG only applies to privately insured risks. Because of the freedom of contract, the parties to an insurance contract may, in principle, insure any type of risk they chose to. They are only bound by the limitations applicable to any civil law contract (e.g., the prohibition of contracts that violate public policy or a statutory prohibition).30 The VVG regulates the most common types of private insurance in Germany by stipulating the rules applicable to the different insurance branches. The most relevant branch in Germany is the liability insurance that insures damage claims of a third party against the policyholder.31 What is special about this insurance branch is that some liability insurances are on a voluntary basis while others are compulsory insurances. This is the case where the legislator deemed it especially important to insure the risk of damages to a third party caused by the conduct of another party. The most prominent example of compulsory liability insurance is the third-party vehicle insurance, from which the other compulsory insurances evolved.32 Other insurance branches stipulated in the VVG are legal expenses insurance, transport insurance, fire insurance for buildings, life insurance, occupational disability insurance, accident insurance and private health insurance.

iv Fora and dispute resolution mechanisms

In general, arbitration and other alternative dispute resolution mechanisms (ADR) have experienced an expansion in recent years.33 In Germany, however, the popularity of arbitration and ADR rather depends on the type of insurance contract concerned. A distinction can be drawn between reinsurances, insurances for commercial and industrial risks and insurances for 'mass risks'.

Disputes regarding reinsurances are traditionally solved amicably between the parties.34 The reason for this is a kind of 'gentlemen's agreement' to solve reinsurance disputes by negotiations for amicable settlement. However, arbitration proceedings have become more and more common in the past 30 years and most reinsurance contracts now also contain arbitration clauses. This may be attributed to an increased willingness in the Anglo-American reinsurance market to refer reinsurance disputes to arbitration, which also reflects on the German market. Another reason might be the increase of disputes regarding large risks that involve higher stakes for the parties. A third factor may be that more reinsurance companies withdraw from the reinsurance market, making it less necessary to solve disputes amicably to retain ongoing business relationships.

In insurance disputes concerning commercial and industrial risks there is a rather restrictive use of alternative dispute resolution mechanisms, especially arbitration.35 This is a distinctive aspect of German insurance law in comparison to other jurisdictions. It might be owing to the still widely held perception by German insurers that German court proceedings are, when compared to other jurisdictions, more efficient, less time-consuming and less costly. Furthermore, German courts regularly have specialised chambers that will hear insurance law-related disputes. This ensures a qualified legal judgment that otherwise only specialised arbitral tribunals might be able provide. Such benefits of German court proceedings apparently still outweigh the general advantages of arbitration for many insurance companies. However, there is reason to believe that the use of arbitration clauses in commercial or industrial insurance contracts will increase in the future. For contracts that are related to international law or written in a foreign language, or for contracts that contain unusual clauses or concern risks of a high technical nature, arbitration proceedings may, in principle, be deemed more favourable.36

In German insurance contracts concerning 'mass risks', arbitration clauses are basically non-existent.37 This is owing to the fact that they are often concluded with 'consumers' under German consumer protection law, which significantly raises the bar for a valid arbitration agreement. Section 1031(5) ZPO states that arbitration clauses involving consumers are only valid if they are contained in a separate record or document signed by both parties that shall not contain agreements other than those making reference to the arbitration proceedings. If the arbitration agreement is included in a contract, it is only valid if it has been recorded by a notary. Both requirements are rather difficult to fulfil in practice. In addition, arbitration clauses in insurance contracts are usually part of the insurer's general terms and conditions and therefore have to fulfil the requirements set out in Sections 305 et seq. BGB (see above under Section II (i) BGB). This leads to a high risk that an arbitration clause contained in an insurance contract for mass risks could be deemed invalid by a court.

Because of these difficulties with arbitration proceedings against consumers, the German Insurance Association formed the association 'Versicherungsombudsmann e.V.' (Insurance Ombudsman Association) in 2001 to establish a mechanism for out-of-court dispute settlement of insurance disputes with consumers before an 'insurance ombudsman'.38 Under this mechanism, consumers may file a complaint against an insurance company (or an insurance broker) with the ombudsman.39 To be able to refer an insurance dispute to the ombudsman, the insurer needs to be a member of the Insurance Ombudsman Association,40 which almost all insurance companies in Germany are.41 The complaint is only admissible if the insured person has made a complaint with the insurance company first and if at least six weeks have passed since then.42 The ombudsman cannot decide on complaints that: (1) have a value of more than €100,000; (2) concern healthcare or nursing care insurance; (3) have already been filed with or decided by a court or another institution; or (4) are obviously unfounded.43 The proceedings shall take no longer than 90 days.44 The insured party may refer the dispute to an ordinary court at any time.45 If the complaint is admissible and the value in dispute is no more than €10,000, the ombudsman can render a decision that is binding for the insurance company; otherwise, it can make a non-binding recommendation.46 Dispute settlement before the insurance ombudsman has proven to be quite successful. In 2017, the Insurance Ombudsman Association received 19,754 complaints, of which it settled 15,599.47

III RECENT CASES

In the past 18 months, the Federal Court of Justice (BGH) handed down a number of landmark decisions for insurance disputes.

i Judgment of 8 November 2017, IV ZR 551/15, regarding the applicability of Section 215(1) VVG to legal entities

In a recent judgment of 8 November 2017, the BGH affirmed the applicability of Section 215(1) VVG to legal entities under private law,48 which had been a highly controversial issue since the introduction of Section 215 VVG in 2008.

In the case at hand, the question was whether the insured company could sue its insurer at the place of its registered seat according to Section 215(1) VVG in conjunction with Section 17 ZPO, or whether the general terms and conditions of the insurance contract applied, according to which the insurer would have to be sued at the place of the insurer's office. The BGH found that, although the wording of Section 215(1) VVG was ambiguous regarding its application to legal entities, it had not been the objective of the legislator to make a distinction between natural persons and legal entities.49 The intention of the VVG was to protect the insured person regardless of its legal form or status as a consumer. Another objective of the legislator had been to provide a place of jurisdiction that is closest to the facts of the dispute to make the ordering of evidence easier and faster.50 According to the BGH, this purpose applied to natural persons and legal entities alike. Therefore, it came to the conclusion that in the case at hand, Section 215(1) VVG could not have been derogated by the general terms and conditions of the insurer. The insurer could be sued at the place of the insured company's registered seat.

This decision by the BGH did not only clarify one of the most disputed questions since the VVG reform in 2008,51 but also provided clarification regarding the application of Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Regulation) to insurance disputes against an insurer that has its registered seat outside of the European Union.52 The BGH affirmed that the Regulation did not apply in such a case as it was only applicable to insurance disputes against a defendant domiciled in a Member State. According to its reasoning, the Regulation did not, in contrast to consumer or employment contracts, extend its application to non-Member States for insurance-related matters. These clarifications were highly welcomed by commentators and practitioners.53

ii Judgment of 8 March 2017, IV ZR 435/15, regarding the applicability of Section 215(1) VVG to tort and unjust enrichment claims

Another recent judgment of the BGH on Section 215 VVG concerned the question whether the section only applied to contractual claims arising under the insurance contract or whether it was also applicable to tort and unjust enrichment claims.54

In the case at hand, the plaintiff had demanded repayment from his life assurance because of a wrongful consultation before concluding the contract, based on prospectus liability and unjust enrichment claims. The question was therefore whether the wording of Section 215(1) VVG had to be understood in a narrower sense as referring to contractual claims only, or in a broader sense as referring to all claims arising in connection with the insurance contract. The BGH decided that the wording was to be understood broadly, ruling that all claims with a close connection to the insurance contract are covered by Section 215(1) VVG.55

iii Judgment of 14 March 2017, VI ZR 226/16, regarding the suspension of the statute of limitations according to Section 115(2) VVG / 15 VVG

A further disputed issue recently decided by the BGH concerned the suspension of the statutory limitation period under Section 115(2) VVG.56 It stipulates for direct claims of a third party against the insurer – in conformity with Section 15 VVG – that the limitation period is suspended until the claimant receives the insurer's decision in writing.

In the case at hand, a third party had suffered damages from a car accident with the insured person. The social insurance company of the third party had made claims to the insurer of the insured person in 2007. The insurer had covered the costs in 2009. In 2013, the social insurance company of the third party demanded further payment. The insurer denied this on the basis that the claim had become time-barred, arguing that the suspension of the limitation period had ended with the acceptance of the first claim in 2009. It was therefore for the BGH to decide what requirements the insurer's decision had to fulfil to end the suspension under Section 115(2) VVG.

The BGH came to the conclusion that the insurer's acceptance of payment in 2009 had not ended the suspension of the limitation period.57 According to its reasoning, it was not sufficient for the fulfilment of the requirements of Section 115(2) VVG that the insurer's decision had been positive. The BGH stated that in case of a claim for all damages in relation to the insured event, the suspension would only end if the insurer's decision made a clear and full statement regarding all potential (future) claims.58 This followed from the purpose of Section 115(2) VVG, which required that a decision from the insurer guaranteed the injured party that all future claims arising out of the insured event will be paid for voluntarily. Such a guarantee could not be seen in the first payment of the insurer as it had made no further statement regarding future claims. Hence, the limitation period had still been suspended under Section 115(2) VVG at the time the social insurance company had raised the second claim. It could therefore still claim payment under the insurance contract.

iv Judgment of 5 April 2017, IV ZR 360/15, regarding the assertion of claims under a D&O insurance policy by the insured company

In another noteworthy case recently decided by the BGH, the court affirmed the right of the policy-holding company under a D&O policy to take direct legal action against the insurer.59

In the case at hand, the insurer had refused to cover the company's damage claim resulting from a breach of contract by its directors and officers. The liable directors and officers had remained inactive. Therefore, the company had filed a declaratory action against the insurer to receive a judgment on the insurer's obligation to cover the damage claim. However, it was questionable whether the company was entitled to raise such a direct claim as the general terms and conditions of the insurance contract set out that only the insured persons could make a claim for coverage under the insurance contract.

The BGH affirmed this with its decision of 5 April 2017 and held that under certain conditions, it would be contrary to the principle of good faith and the objectives of the indemnity insurance to invoke such a clause.60 This was the case here as the insurer had already denied to cover the company's damage claim and the insured persons had refused to pursue the claim against the insurer.61 It had led to a risk for the claim to become time-barred.62 The BGH therefore came to the conclusion that it would cause the company considerable harm if it were denied the opportunity to make a direct claim against the insurer. Under the circumstances at hand, the company could not be required to file a claim against its directors and officers to force them to raise a claim for coverage against the insurer.63 Furthermore, it did not constitute any disadvantage for the insurer or the insured persons that the company pursued the claim for coverage directly. After all, the insured persons had already refused to make use of their right and the insurer was therefore not in danger of being sued twice.64 Hence, it was justified in allowing the company a direct claim under the insurance contract.

With this decision, the BGH affirmed its already established position on two previously disputed issues: (1) whether, under a liability insurance, a third party may initiate court proceedings for a declaratory judgment against the insurer regarding its obligation to cover the third party's damage claim in case the insured person did not take action against its insurer;65 and (2) whether the policyholder under a D&O insurance may be deemed a 'third party' in case it suffers damages from a conduct by the insured person.66 It was therefore expected and welcomed by legal commentators that the BGH clarified these two principles in the case at hand.67

A further interesting aspect of the case concerned the instructions of the BGH to the court of lower instance, to which it referred the case back for a final decision. As there had been no judgment on the liability claim against the company's directors and officers, the BGH pointed out that the court of lower instance would have to take the alleged liability as a given.68 In this regard, the BGH also followed its previous rulings on third-party claims under a liability insurance.69

IV THE INTERNATIONAL ARENA

Cross-border insurance contracts have proliferated in recent years, putting insurance disputes increasingly into a more international context. Frequent questions that arise in cross-border insurance disputes regard the correct place of jurisdiction and the applicable law. For German courts, EU Regulation (EC) No. 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I) and EU Regulation (EC) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Recast Brussels Regulation)70 set out the relevant rules for these questions.

Rome I applies to insurance contracts concluded after 17 December 2009 and provides the rules to identify the applicable law to contractual obligations in civil and commercial matters involving a conflict of laws. Article 7 Rome I sets out specific rules for insurance contracts covering large risks as well as insurance contracts covering mass risks situated inside the territory of the Member States. To all other insurance contracts, especially regarding mass risks situated outside of the territory of a Member State as well as reinsurance contracts, the general rules of Article 3–6 Rome I apply.71

Regarding the question of jurisdiction, the Recast Brussels Regulation provides the relevant rules for legal proceedings instituted on or after 10 January 2010 against a defendant that has its domicile72 in a Member State and concern a dispute that is not located solely in one Member State (e.g., one of the parties has its residence or place of business in one Member State, the other party in another Member State or a third state). It contains specific rules for insurance disputes in Articles 10–16. The rules are similar to those under German law (see Section II.i, 'German Code of Civil Procedure (ZPO)'). If the defendant has its residence in Switzerland, Norway or Iceland, the Lugano Convention (2007) applies with corresponding rules.

The Recast Brussels Regulation also applies to the enforcement of judgments rendered by a court of a different Member State. In general, such judgments shall be recognised and enforceable in the other Member State without any special procedure or declaration of enforceability being required.73 However, the Recast Brussels Regulation does not apply to the enforcement of arbitral awards.74 Regarding the recognition and enforcement of foreign awards by a German court, the rules of the Convention of 10 June 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) apply.75 Regarding the recognition and enforcement of domestic awards, the rules of the ZPO apply.

V TRENDS AND OUTLOOK

In view of the current jurisprudence of the BGH and German higher regional courts, there seems to be an increasing number of landmark decisions on insurance-related disputes. Accordingly, it seems that parties to insurance disputes have become less reluctant to receive a final and binding decision in state court proceedings. Whether this is a trend that will continue in the future, however, cannot yet be predicted.


Footnotes

1 Marc Zimmerling is a partner and Angélique Pfeiffelmann is a senior associate at Allen & Overy LLP.

2 According to a study conducted by the association for economic research and consulting Prognos,
www.prognos.com/publikationen/alle-publikationen/688/show/288ea05be5faba014c4511664f33e9a0/.

4 It is therefore important to consider carefully whether decisions and publications on insurance law refer to the current or the old rules of the VVG.

5 Entwurf eines Gesetzes zur Reform des Versicherungsvertragsrechts of ۲۰ December ۲۰۰۶, Bundestagsdrucksache ۱۶/۳۹۴۵, p. ۱.

6 Which allowed the insurer to refuse payment for the insured event if it was caused by the insured person, regardless of the degree of misconduct.

7 Which stipulates that the insurer may only refuse payment in full if the insured person caused the insured event intentionally; in case of gross negligence, the insurer may refuse payment only partly depending on the degree of negligence.

8 Section 210(1) VVG; an open policy is a contract made in such a manner that, at the time when the contract is concluded, only the class of insured interest is designated and it is only specified to the insurer in detail once the contract has been concluded, Section 53 VVG.

9 Section 210 (2) VVG enumerates all large risks conclusively.

10 Section 195 BGB.

11 Section 199(1) BGB.

12 Rixecker in Römer/Langheid, VVG, 4th edition 2014, Section 31 [1].

13 Section 17 ZPO.

14 Section 29 ZPO.

15 Section 21(1) ZPO.

16 Section 38(3) ZPO, Section 215(3) VVG.

17 Klimke in Prölls/Martin, VVG, 30th edition 2018, Section 215 [1].

20 i.e., statutory health insurance funds, statutory pension insurance fund, statutory accident insurance institutions and unemployment insurance institutions.

21 This includes SEs, mutual societies or public-law institutions, Section 8(2) VAG.

22 Section 8(3) VAG.

23 Section 8(4) VAG; see also www.bafin.de/dok/7859578.

24 Section 9(1)–(3) VAG.

25 Section 9(2) No. 4 VAG.

26 Section 9(2) No. 5 VAG.

27 Section 9(4) No .1 Lit a) VAG.

28 Section 294 VAG.

30 Langheid/Wandt, Recast Brussels Regulation Kommentar zum VVG, 2nd edition 2016, Section 1 [144].

31 Lücke in Prölls/Martin, VVG, 30th edition 2018, before Section 100 [5].

32 Klimke in Prölls/Martin, VVG, 30th edition 2018, introduction to Sections 113–124 [1].

33 Wolf, NJW 2015, 1656 (1659).

34 Gal in Langheid/Wandt, Münchener Kommentar zum VVG, 2nd edition 2017, chapter 130 [5]–[8].

35 Gal in Langheid/Wandt, Münchener Kommentar zum VVG, 2nd edition 2017, chapter 130 [9]–[10].

36 Gal in Langheid/Wandt, Münchener Kommentar zum VVG, 2nd edition 2017, chapter 130 [11].

37 Gal in Langheid/Wandt, Münchener Kommentar zum VVG, 2nd edition 2017, chapter 130 [16]–[17].

39 Section 2(1) Code of Procedure of the Insurance Ombudsman (VomVO).

40 Section 1 VomVO.

42 Section 2(3) VomVO.

43 Section 2(4) VomVO.

44 Section 7(6) VomVO.

45 Section 11(2) VomVO.

46 Sections 10(3), 11(1) VomVO.

47 Annual report of the Insurance Ombudsman Association, p. 2, www.versicherungsombudsmann.de/wp-content/uploads/Jahresbericht2017.pdf.

48 BGH, Judgment of 8 November 2017, IV ZR 551/15.

49 BGH, Judgment of 8 November 2017 [18].

50 BGH, Judgment of 8 November 2017 [23].

51 Armbrüster, EWiR 2018, 63 [64].

52 Mankowski, VersR 2018, 182 [184].

53 Armbrüster, EWiR 2018, 63 [64]; Mankowski, VersR 2018, 182 [184].

54 BGH, Judgment of 14 March 2017, IV ZR 435/15.

55 BGH, Judgment of 14 March 2017, IV ZR 435/15 [15].

56 BGH, Judgment of 14 March 2017, VI ZR 226/16.

57 BGH, Judgment of 14 March 2017, VI ZR 226/16 [13].

58 BGH, Judgment of 14 March 2017, VI ZR 226/16 [10].

59 BGH, Judgment of 5 April 2017, IV ZR 360/15.

60 BGH, Judgment of 5 April 2017, IV ZR 360/15 [17].

61 BGH, Judgment of 5 April 2017, IV ZR 360/15 [19].

62 BGH, Judgment of 5 April 2017, IV ZR 360/15 [25].

63 BGH, Judgment of ۵ April ۲۰۱۷, IV ZR ۳۶۰/۱۵ [۲۰].

64 BGH, Judgment of 5 April 2017, IV ZR 360/15 [32].

65 BGH, Judgment of 15 November 2000, IV ZR 223/99.

66 BGH, Judgment of 13 April 2016, IV ZR 304/13.

67 Thiel and Seitz, NJW 2017, 2466 [2468]–[2469].

68 BGH, Judgment of 5 April 2017, IV ZR 360/15 [38].

69 BGH, Judgment of 15 November 2000, IV ZR 223/99.

70 As well as its predecessor Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which still applies to legal proceedings instituted before 10 January 2015 as well as to judgments given or court settlements concluded before that date (Article 66 of the Recast Brussels Regulation).

71 Rome I does, however, not apply to insurance contracts providing benefits for employed or self-employed persons in the event of death or survival or of discontinuance or curtailment of activity, or of sickness related to work or accidents at work, excluding life assurance according to Article 9 No 2 of the Solvency II Directive.

72 For a company, this would be the place where it has its statutory seat, central administration or principal place of business, Article 63 of the Recast Brussels Regulation.

73 Articles 36(1), 39 of the Recast Brussels Regulation.

74 Article 1(2)(d) of the Recast Brussels Regulation.

75 Section 1061 ZPO.