The Insurance Disputes Law Review: Belgium

Overview

In Belgium, insurance and insurance law has become a hot topic in the media. Increasingly, policyholders are dissatisfied with the cost of premiums, refusals by insurers to provide coverage, claims settlements and alleged violations of legal obligations such as information requirements.

The legislature and regulatory authorities are continuously working on legal solutions and trying to adapt existing legislation to fit contemporary practices and complaints. For example, the Financial Services and Markets Authority and the National Bank of Belgium have adopted new regulations regarding the storage of insurance documents. Furthermore, health and life insurers cannot refuse coverage or increase the price for an insurance product to insureds who refuse to purchase or use devices that collect personal data regarding lifestyle or health. It is not only legislation that is evolving, but also case law. For example, the Belgian Constitutional Court had to decide whether the specific limitation period in the insurance sector of three years is discriminatory. The Supreme Court had to interpret the scope of application of the same limitation period, the information requirements of the insurer when it wants to exercise a right of recourse against its policyholder or insured, and the duration of coverage. In addition, the Supreme Court had to define when and to what extent an insurance contract is null and void following an omission or misrepresentation of information provided by the policyholder. Furthermore, the Constitutional Court asked a preliminary question of the European Court of Justice regarding the insured's free choice of advisers in legal expenses insurance contracts. On 14 May 2020, the European Court of Justice answered and, on 22 October 2020, the Constitutional Court decided the case on its merits.

In this chapter, the legal framework of Belgian insurance disputes, interesting recent case law, international insurance disputes and emerging trends in insurance claims are discussed in detail.

The legal framework

i Sources of insurance law and regulation

For Belgian law practitioners, the first point of reference regarding insurance law is the Act of 4 April 2014 concerning insurance (the Insurance Act), which contains, among others, provisions on the insurance contract, the obligations of the parties, limitation periods, insurance mediation and distribution, and supervision of insurance companies.

Apart from the rather long Insurance Act, Belgium has a number of relevant specific acts (e.g., for motor vehicle insurance, damage caused by terrorism, and the status and supervision of insurance companies) and countless royal decrees (e.g., for life insurance and fire insurance for simple risks).

Although the law changes constantly, the following key developments from the past 12 to 18 months (1 January 2020 to 31 July 2021) are worth mentioning.

On 31 July 2020, the Financial Services and Markets Authority (FSMA) regulation of 30 June 2020 regarding the storage of insurance documents was approved by royal decree. This regulation imposes multiple conditions on insurers if they want to store insurance documents electronically in a data centre or a cloud, rather than in their own offices. If they meet these conditions, insurers can benefit from a simplified approval procedure. If not, they have to go through the standard approval procedure. The same applies for paper document storage in places other than the insurer's offices. If the insurer does not obtain FSMA approval but stores its insurance documents in a place other than its own offices anyway, the FSMA can impose administrative measures or sanctions. The National Bank of Belgium had a similar regulation approved by royal decree on the same date.

The Law of 10 December 2020 adds a new chapter to the Insurance Act that is relevant to individual life insurance and specific health insurance. During the conclusion of insurance of this kind, refusal by the prospective insured to purchase or use a device connected to the internet that collects personal data relating to his or her lifestyle or health2 must in no way result in the insurance being refused or the insurance product becoming more expensive.3 Furthermore, no segmentation can be applied in terms of acceptance, pricing or scope of coverage on the basis of the prospective insured agreeing to purchase or use such a device or to share information collected, nor on the basis of the use of such information by the insurer.4

Also of note, the Belgian legislature is rewriting the Civil Code. On 1 November 2020, new rules regarding evidence entered into force and, on 1 September 2021, new rules regarding property law will enter into force.

ii Insurable risk

In theory, almost every risk is insurable. However, a few exceptions exist.

First and foremost, fines and settlements in criminal matters are not insurable.5 Nevertheless, the person who is legally liable for the perpetrator can conclude an insurance contract covering such fines and settlements unless the insurance relates to road traffic or road transport.

Second, no insurer can be obliged to provide coverage for intentional damage.6 After all, when damage is induced intentionally, the parties to the insurance contract have not been confronted with any risk, which is one of the key components of insurance.

Third, some legal statutes or codes provide for general exclusions, such as Article 127 of the Insurance Act, which excludes harvest that has not been gathered, cattle living outside a building, soil, crops and forest plantations from natural disaster insurance coverage. However, the insurance contract can deviate from this provision.

Fourth, some insurers might refuse to insure a certain risk because, following a cost–benefit analysis, it proves to be too costly or too risky for the insurer. For example, a health insurer for pets always refuses to cover hereditary diseases. Generally, no insurer covers damage caused by war or similar circumstances.7 The same applies to the life insurer who, in principle, does not cover suicide or death immediately and directly caused by a crime intentionally committed by the insured as perpetrator or co-perpetrator, if the consequences were foreseeable.8

Another distinction can be made between compulsory insurance and non-compulsory insurance. Belgium has introduced compulsory insurance for no fewer than 33 categories of risks.9 These categories are:

  1. occupational accidents;
  2. architects, expert land surveyors, health and safety coordinators, contractors and other service providers in the construction sector in real estate;
  3. tenants and landlords (fire and water insurance);
  4. investments;
  5. mediation;
  6. payment institutions and collective investment undertakings;
  7. accounting and tax professions, insolvency practitioners and temporary administrators;
  8. security;
  9. audit agency;
  10. service providers;
  11. animals;
  12. healthcare;
  13. real estate;
  14. hunting;
  15. fairground activities;
  16. nuclear installations;
  17. surveyor experts;
  18. environment;
  19. local public institutions;
  20. notaries;
  21. education, training and childminders;
  22. public procurement;
  23. publicly accessible institutions;
  24. care homes;
  25. social developments;
  26. sports;
  27. mine waste;
  28. trustees of real estate;
  29. tourism;
  30. employment;
  31. transport;
  32. volunteers; and
  33. health insurance.

iii Fora and dispute resolution mechanisms

Insurance disputes are dealt with at various levels. Frequently, the general conditions of the insurance company advise the policyholder to file a complaint with the internal ombudsman service. If this step is unsuccessful, the policyholder often contacts the Insurance Ombudsman, established by the Federal Public Service Economy.10 The Insurance Ombudsman tries to settle the dispute and to obtain a favourable solution for every party.

Increasingly, parties try to resolve their disputes amicably, not only through the Insurance Ombudsman, but also through binding third-party decisions11 and mediation.12

The parties to the insurance contract can also subpoena the other party before regular courts. Which court depends on the amount of the claim, the nature of the claim and the capacity of the parties. If the amount of the claim does not exceed €5,000, the claim can be brought before a justice of the peace.13

Generally, claims have to be brought before courts that have special or exclusive competence. For example, claims for damages resulting from a traffic accident have to be brought before a police court, unless the dispute has a purely civil nature.14 The labour courts are competent for occupational accidents and group insurance (supplementary pensions).15 If an insurer files a subrogation claim against a tenant, the claim has to be brought before a justice of the peace. In most cases, however, the parties refer insurance disputes to the court of first instance.

If the parties are both enterprises or if the defendant is an enterprise, the claim has to be brought before a commercial court.

The Belgian legislature is not very fond of arbitration in the insurance sector. According to Article 90 Section 1 of the Insurance Act, insurance contracts cannot include an arbitration clause. However, the Royal Decree of 24 December 1992 makes an exception for certain types of insurance.16

Recent cases

i Limitation period

In insurance law, specific limitation periods apply. The limitation period for any legal action arising from an insurance contract is three years, starting from the day of the event that causes the right of action.17 If the claimant proves that he or she only became aware of the event at a later date, the limitation period starts from that moment, but in any case it expires five years after the event, except in the case of deceit or fraud. In life insurance, the limitation period is 30 years for the legal action to claim the reserve formed by the paid premiums on the end date or the date of cancellation. Since the limitation period of three years is considerably shorter than the ordinary limitation period for contracts (10 years for a personal action and 30 years for an actio in rem18) or torts (five years from the day on which the injured party became aware of the damage and the identity of the liable party, or a minimum of 20 years after the fact that caused the damage19), the question whether this is discriminatory can arise.

On 20 October 2020, the Constitutional Court had to assess this specific limitation period regarding life insurance. The claimants had concluded multiple life insurance contracts in 2000 (Branch 23 policies – investment-type life insurance policies, without a guaranteed return). The premiums were invested in multiple investment funds. In 2009 and 2011, these funds were terminated, resulting in a loss of the invested premiums. The policyholders claimed the annulment of the policies and subpoenaed the insurer in 2015. The insurer argued that this claim was time-barred since the alleged faults were caused by a lack of information or advice prior to the conclusion of the insurance contracts. The Business Court asked the Constitutional Court whether the distinction between (1) a life insurance contract as described above (limitation period of three years) and (2) a financial instrument or savings product contract linked to investment funds (limitation period of 10 years) complies with the Constitution.

According to the Constitutional Court, the circumstances of the two categories are objectively different, taking into account the characteristics of the products in which they invested and the nature of the contracts (insurance or other).20 Branch 23 insurance contracts have the primary characteristics of an insurance contract, in particular the option for the policyholder to appoint a beneficiary other than himself or herself, and the existence of a coincidental fact relating to the life of the insured (i.e., the risk).

The Belgian legislature did not introduce a short limitation period of three years without reasonable justification: it considered both the risk of losing evidence in the event of a loss and the need to ensure the proper functioning of insurance companies.

The limitation period of three years is not so short that it would prevent the parties involved from taking legal action in the event of a dispute. Furthermore, the Insurance Act has a number of specific provisions aimed at achieving a balance between the interests of the parties involved in an insurance contract (e.g., the mandatory nature of the limitation periods, which means that the parties cannot deviate from them to the detriment of the insured, the specific grounds for interruption and suspension of the limitation period, and the long limitation period of 30 years for the reserve).

Therefore, the Constitutional Court decided that the shorter limitation period does not infringe the Constitution and the principle of non-discrimination.

Earlier in 2020, the Supreme Court also had to interpret the phrase 'arising from an insurance contract'. A claim arises from an insurance contract when it relates to the existence of the contract and the obligations arising from it, both for the contracting parties and in relation to third parties, irrespective of the legal basis of the claim.21

ii Right of recourse: information requirement

In liability insurance, the insurer can exercise a right of recourse against the policyholder and the insured up to the amount of the insured's personal liability, to the extent that it could have refused or reduced the payments to the injured party according to the law or the insurance contract.22 Under penalty of forfeiture of its right of recourse, the insurer has to inform the policyholder and insured of its intention to exercise recourse as soon as it is aware of the facts on which that intention is based.23 Therefore, the time of notification is important as well.

The facts leading to the judgment of the Supreme Court of 16 April 2021 can be summarised as follows. The insured caused a fatal traffic accident and tested positive for cocaine and alcohol. Shortly after the event, the insurer informed the insured that it would exercise a right of recourse because of the alcohol intoxication and influence of cocaine. Three years later, the insurer found further legal grounds for recourse and informed the insured a second time.

In the interim, the insurer, together with the insured, was sentenced to pay (civil) damages to the victim. The insurer instituted a recourse claim against the insured, which was rejected at first instance. However, the court of appeal declared the claim partially well-founded. It ruled that the obligation under Article 152 of the Insurance Act means that the insurer has to inform the insured as soon as possible that it wants to exercise a right of recourse so that the insured can provide for its own defence from that moment on. The precise grounds on which that right of recourse are founded are not particularly relevant at that time, nor required by law. According to the court of appeal, it is not even necessary for the insurer to inform the insured at a later stage of the new grounds on which the claim can be based.

The insured filed an appeal before the Supreme Court, stating that it was necessary for the insurer to state its grounds in an exhaustive manner to enable him to prepare his defence against those grounds.

The Supreme Court agreed with the insured.24 The legislative history shows that the insurer's information requirement is intended to allow the policyholder and the insured to safeguard their rights in the event of a possible recourse by the insurer. The requirement regarding the insurer's notification of its intention to exercise its right of recourse also applies to the grounds on which that recourse is based. The insurer forfeits its right of recourse if it exercises that right on grounds other than those of which it has informed the policyholder or insured in a timely manner.

In other words, it is of prime importance that the insurer immediately investigates all possible grounds for recourse and informs the policyholder or insured in a timely manner. If the insurer becomes aware of new grounds at a later date and bases the recourse on those new grounds, without notifying the policyholder or insured on time, a judge may reject the recourse claim.

iii Declaring insurance contract null and void: scope

When concluding the insurance contract, the policyholder is obliged to communicate accurately all circumstances known to him or her that should reasonably be considered to be of influence in the assessment of the risk by the insurer.25 If the policyholder intentionally withholds information (omission) regarding the risk or intentionally provides incorrect information (misrepresentation), and if that misleads the insurer in assessing that risk, the insurance contract is null and void.26 The grounds for nullity of one of the performances does not apply to the entire insurance contract.27

The Belgian Supreme Court had to interpret these legal principles.28 First of all, the insurance contract is only null and void if the omission or misrepresentation relates to a fact that is important for the assessment of the insured risk. Second, if the insurance contract covers multiple risks and the omission or misrepresentation only affects the assessment of one or some of these risks, the annulment of the insurance contract has to be limited to the coverage of the risks in respect of which the insurer has been misled.

In the case at issue, the policyholder had intentionally concealed that the house for which he wanted to conclude an insurance contract was in fact an illegal wooden chalet that had been built in an agricultural area without a building permit and could not be regularised. The home insurance covered several risks, including fire. According to the court of appeal, this omission increased the risk of insurance fraud and, more precisely, arson. For that reason, the court of appeal had annulled the entire insurance contract, since the insurance came as a package. However, the Supreme Court ruled that the court of appeal was wrong to annul the entire insurance contract without investigating whether the omission affected the assessment of all covered risks.

iv Duration of the coverage

In liability insurance, the insurer has to provide coverage for damage occurring within the duration of the insurance contract and claims filed after the end of the insurance contract,29 also known as the loss occurrence system. However, for some insurance contracts30 the parties can agree that the insurance cover only applies to claims that are filed in writing against the insured or the insurer within the duration of the contract for damage occurring within the same duration (claims made system). In that case, the insurer also has to cover the claims, filed in writing within 36 months of the end of the contract, concerning: (1) damage that occurred within the duration of the contract if at the end of the contract the risk is not covered by another insurer; and (2) acts or facts that give rise to damage and that occurred within the duration of the contract and are notified to the insurer.31

If the contract does not provide for a claims made system, the loss occurrence system applies. The Supreme Court had to interpret Article 142(1) Insurance Act on 25 February 2020.32 The criminal court had convicted a doctor because he unintentionally caused the death of a patient on 5 February 2013 because of a lack of caution or failure to take precautions.

Nineteen persons requested compensation for the death following the conviction of the criminal court. The Court of Appeal ruled that the liability insurer of the doctor had to pay compensation. The insurer filed an appeal before the Supreme Court because the duration of the coverage ended on 31 December 2010. Since the victim died in 2013, the insurer argued that it did not have to provide coverage. The court of appeal had ruled that the insurer had to pay compensation because the victim was able to establish a link between the medical complaints and the mistakes of the doctor between mid-2009 and 26 August 2010. Therefore, according to the Court of Appeal, the damage arose between mid-2009 and 26 August 2010, within the duration of the insurance contract.

The Supreme Court ruled in favour of the insurer: when the insured causes the death of the victim as a result of his fault, the damage of the successors and the persons who suffer damage because of the death arises on the moment of the death. The insurer has to pay out if the death occurs within the duration of the insurance contract.

The international arena

Preliminary question regarding free choice of lawyer in legal expenses insurance

For matters concerning international and European areas, Belgium and other Member States of the European Union often look to the European Court of Justice for guidance. For example, the Belgian Constitutional Court has asked a preliminary question to the European Court of Justice regarding free choice in respect of advisers in legal expenses insurance contracts.

The Act of 9 April 2017 amended Article 156(1) of the Insurance Act regarding the free choice of advisers in legal expenses insurance contracts. Every legal expenses insurance contract has to state that the insured has a free choice of lawyer or any other person who is qualified to defend, represent or promote the insured's interests when judicial, administrative or arbitration proceedings have to be initiated. Moreover, the insured can freely choose any person who has the required qualifications and is appointed to do so in the event of arbitration, mediation or any other acknowledged extrajudicial form of dispute resolution. The amendment to Article 156(1) of the Insurance Act now extends that free choice of advisers to alternative forms of dispute resolution such as mediation.

This Act makes a distinction between, on the one hand, a free choice of lawyer in the event of a judicial, administrative or arbitration procedure and, on the other hand, a free choice of the person who leads the arbitration, mediation or other extrajudicial dispute resolution procedure. For example, in the case of mediation, the insured does not have a free choice of lawyer, but does have a free choice of mediator. According to the legislature, the reason for introducing this distinction was that the presence of a lawyer is not beneficial for mediation and the agreement reached through mediation is not necessarily based on legal reasoning.

The Belgian Bars asked the Constitutional Court to annul this Act.33 According to them, this Act introduced an unconstitutional difference between, on the one hand, the insured who wants to introduce an arbitration procedure and, on the other hand, the insured who wants to solve a dispute through mediation.

In Belgium, there is a distinction between extrajudicial mediation and judicial mediation. An extrajudicial mediation can be initiated by the parties before, during or after judicial proceedings. The agreement reached by the mediator and the parties can be accredited by a judge if the mediator is acknowledged. A judicial mediation occurs when the judge ruling on a dispute orders mediation at the parties' request, or the judge proposes mediation and the parties agree to this. The dispute remains pending and the judge can take other measures. The agreement reached by the parties through judicial mediation can be accredited by that judge. If no agreement is reached, the judicial proceedings continue. The difference between these two types of mediation and arbitration is that arbitration leads to a decision made by arbitrators.

According to the Constitutional Court, arbitration and mediation are comparable situations, meaning that no discrimination between the two may arise. The Court refers to case law of the European Court of Justice to rule that the free choice of a lawyer cannot be restricted.34 However, European law does not extend this right to extrajudicial proceedings. Therefore, the Constitutional Court decided to ask the following preliminary question to the European Court of Justice: 'Should the term “proceedings” in Article 201(1)(a) of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance be interpreted as including extrajudicial and judicial mediation proceedings, as provided for in Articles 1723/1 to 1737 of the [Judicial Code]?'35

The Court of Justice ruled on 14 May 202036 that the term 'proceedings' includes judicial and extrajudicial mediation proceedings in which a court is involved or is capable of being involved, either when those proceedings are initiated or after they are concluded. The term 'proceedings' cannot be limited, either solely to non-administrative proceedings conducted before a court in the strict sense or by drawing a distinction between the preparatory stage and the decision-making stage of proceedings. The effect of the agreement reached by the parties, whether in judicial or extrajudicial mediation, is to bind the competent court that approves it and, after having become enforceable, the agreement has the same effect as a judgment. In the context of proceedings that are capable of determining definitively the legal position of the insured party, without him or her having any real opportunity to alter that position by means of legal proceedings, the insured party needs legal protection and, in view of the effects of the agreement resulting from the mediation being approved, the interests of the insured party who uses mediation will be better protected if he or she can rely on the right to a free choice of representative laid down in Article 201 of Directive 2009/138, in the same way as an insured party who turns to the courts directly may so rely.

Following this judgment, the Belgian Constitutional Court ruled that Article 156(1) would infringe the Constitution if the insured were not to have a free choice of a lawyer during a judicial or extrajudicial mediation under the guidance of an acknowledged mediator. This mediation is a procedure (possibly) involving a judicial authority, either at the initiation of proceedings or at the end of proceedings; however, since the Member States of the European Union have to interpret national law in accordance with EU law as much as possible, and since the annulment of Article 156(1) would not immediately respond to the judgment of the Court of Justice, the Constitutional Court interpreted the provision broadly to understand that 'judicial procedure' also encompasses judicial or extrajudicial mediation under the guidance of an acknowledged mediator.37

Trends and outlook

i Busiest areas of claims

It is very difficult to assess the busiest areas of insurance claims in Belgium. Belgium does not have an overview of all claims that were referred to the different courts. However, one can investigate all insurance disputes of the highest courts of Belgium, since their judgments are always published. Here it becomes apparent that most disputes involve mandatory liability insurance for motor vehicles. This is very understandable since every person who owns or drives a motor vehicle is obliged to take out liability insurance.

In the past, the same conclusion could be drawn for all complaints filed with the Insurance Ombudsman. However, there has been a shift in the kind of insurance about which policyholders complain the most. In 2020, the Ombudsman received a lot of complaints linked to the pandemic, resulting in almost 1,000 more claims overall. According to the Ombudsman, consumers have spent their additional time during lockdown going over their insurance policies and questioning the management of claims.

In 2020, 1,108 complaints involved fire insurance (previously in third place), 1,103 life insurance, 1,082 motor vehicle insurance (previously in first place), 1,056 health insurance and 651 all-risks insurance, such as for mobile phones. The remaining complaints were about various insurance contracts (transport, credit, and complaints not clearly defined (842), legal expenses insurance (615), cancellation (602), other civil liability insurance (250), assistance insurance (170), occupational accidents (100) and individual accidents (50). Compared to complaints in 2019, there has been a clear increase in complaints about all-risks insurance, especially regarding insurance for mobile phones, and cancellation insurance. The increase of complaints regarding cancellation insurance is mainly caused by covid-19, since insurers often declined coverage if the cancellation was caused by the pandemic. According to the Ombudsman, it is of paramount importance to read the general policy conditions.

Most of the complaints are caused by vague descriptions that create certain expectations that are not met. According to the Ombudsman, communication needs to be clear and precise, especially when it comes to exclusions from coverage. Certain terms need to be accurately defined to avoid personal interpretations by the consumer. The Ombudsman often refers to the principle that the interpretation that is advantageous to the insured will prevail in cases of doubt. However, an overly detailed definition is not desirable either. Therefore, the professional associations need to focus on the readability of insurance contracts as well.

Complaints with regard to insurance intermediaries usually concern payment and reimbursement of premiums, lack of information during conclusion and amendment of the policy, and long response times during management of the insurance contract. One in three questions is about a possible mistake in the administrative management of the insurance contract, such as a delay in the registration of a vehicle or a delayed premium payment where the insurance intermediary had in fact received the payment from the insured. The development of new apps and technology should improve the administrative follow-up by intermediaries. According to the Ombudsman, many problems arise because of a lack of information regarding the insurance product. Sometimes, the consumer does not fully understand it. A lot of information requirements have been introduced by AssurMiFID38 and the Insurance Distribution Directive (IDD), but because of an increase in the number of documents that need to be signed, relevant information for the consumer is sometimes lost. The insurance intermediary needs to 'translate' that information and explain the most important elements of the insurance product to the insured.

ii Areas that are likely to evolve and become more important in the future

First, new or changed legislation always results in new disputes and case law. Two noteworthy examples are the General Data Protection Regulation (GDPR) and the IDD.

Since the entry into force of the GDPR, insurers have had to change their privacy policy.39 One of the most important changes is the protection against data breaches. Cyberattacks occur increasingly and, as a result, insurance against these is becoming more vital for businesses. One can see more and more insurers introducing these new kinds of policies. Since they are relatively new, they might become a hot topic in the near future.

Furthermore, courts are often confronted with claims concerning life insurance policies without a guaranteed return (known as Branch 23 policies). In the years before the global financial crisis, these insurance policies were promoted by and concluded with the help of insurance intermediaries who were, at the time, not extensively regulated. The clients for these policies are now starting proceedings because rather recently it became clear that all the money invested in these policies is now lost. The clients often claim in these proceedings that the insurance intermediaries or the insurer withheld information and had the clients received that information they would have invested in another product.

Obviously, the European and Belgian legislatures have now started to regulate the distribution activities of insurance companies and intermediaries, and clients are increasingly aware of the behaviour that the insurance companies and intermediaries have to adopt.

One of the most recent pieces of European legislation is the IDD. This instrument is not only relevant for compliance officers, but also for clients, who can now expect certain behaviour on the part of their contracting parties.

In the context of evolving areas, a general awareness of global problems, such as climate change, can result in new insurance policies. Currently, the insurance sector is reluctant to provide coverage for weather disasters because of high costs and risks; for example, in the agricultural sector, the renewable energy sector, the transport sector or the tourism sector. However, these kinds of insurance policies are becoming more essential than ever. Reliance on the Belgian Agricultural Disaster Fund might not be sufficient. Therefore, the Belgian government has promoted insurance for weather disasters since the autumn of 2017 and together with several agricultural organisations continues to negotiate in favour of affordable premiums.40 For example, the Decree of 5 April 2019 of the Flemish Region further simplifies administrative procedures, updates the reimbursement process and introduces an aid scheme for farmers who have concluded a comprehensive weather insurance contract.41

In addition, technological and scientific progress sparks new insurance policies. As mentioned above, the first cyber insurance policy was concluded in 2010.42 Vanbreda Risk & Benefits, a Belgian independent insurance broker and risk consultant, predicted that drone insurance would become common in 2020 and that the first insurance policy for robotics and automated guided vehicles will appear in 2030.43

Furthermore, the covid-19 pandemic has led to an increase in exclusions in life and non-life insurance contracts that did not already contain a general exclusion for pandemics, as well as an increase in claims. Some discussions might arise regarding the question whether an insurance policy covers pandemics, such as business interruption policies. The covid-19 pandemic might cause financial problems for the whole economy, resulting in many claims in trade credit insurance policies, covering businesses against debts that cannot be paid by their customers or suppliers.44 This might eventually lead to increased premiums or financial difficulties for the whole economy, or both. The insurance sector has taken measures to combat the economic consequences of covid-19; for example, regarding fire insurance, outstanding-balance life insurance and group insurance of employers whose employees are temporarily unemployed.45

Insurance law is an ongoing process of trial and error and a constant interaction between the legislature, the judiciary and the executive. When new legislation is published, case law will evolve. When case law evolves, legislation has to be changed. When certain insurance problems receive media attention, both case law and legislation are to an extent forced into taking a certain direction. Therefore, it is fairly possible that new topics will arise in the future and we, as law practitioners, look forward to any evolution of insurance law.

Footnotes

1 Merel van Dongen is an associate at Schuermans advocaten.

2 For example: (1) apps to track physical activity, such as Runkeeper, Fitbit and Runtastic; (2) apps to track food and nutrition, such as MyFitnessPal; (3) apps to control body weight, such as Withings; (4) apps to follow up on certain risk factors, such as hypertension or diabetes; (5) apps to track sleep quality, such as Jawbone and iSommeil; (6) apps to assess state of mind; and so on. Legislative proposal amending the Law of 4 April 2014 concerning insurance (the Insurance Act), to impose restrictions on use of data collected by devices connected to the internet with regard to health and life insurance, Parl. St. Kamer, 2019, Doc 55, 0263/001, p. 3.

3 Article 46/2 Insurance Act.

4 Article 46/3 Insurance Act.

5 Article 155 Insurance Act.

6 Articles 62 and 240 Insurance Act.

7 Article 63 Insurance Act.

8 Article 164 Insurance Act.

10 Royal Decree of 21 June 2006 modifying the handling of complaints in the insurance sector defined in the Royal Decree of 22 February 1991 containing general regulations concerning the supervision of insurance companies and of the Royal Decree of 25 March 1996 implementing the Act of 27 March 1995 relating to insurance mediation and the distribution of insurance; Articles 302 and 303 Insurance Act of 4 April 2014.

11 The parties agree that a third party will make a binding decision about their dispute. This third party is no judge or arbitrator. For example, in legal expenses insurance: Article 157 Insurance Act and Article 7-8 Royal Decree of 12 October 1990 concerning the legal expenses insurance. For example, in fire insurance: Article 121 Insurance Act.

12 Articles 1730–1737 Judicial Code.

13 Article 590 Judicial Code.

14 Article 601 bis Judicial Code.

15 Article 578, 22–24° and Article 578 bis Judicial Code.

16 The excepted types of insurance are (1) insurance contracts other than non-marine insurance; (2) fire insurance for industrial risks; (3) civil liability insurance other than motor vehicle insurance, private life insurance and fire insurance for simple risks; (4) insurance contracts that cover monetary losses for industrial risks; (5) construction all-risk insurance other than goods that meet the criteria of simple risks; (6) the risks covered in an additional or complementary manner in the agreements concluded in accordance with the Act of 3 July 1967 concerning the compensation for occupational accidents, accidents on the way to and from work and occupational diseases in the public sector and the Act of 10 April 1971 concerning occupational accidents; (7) insurance contracts the duration of which are shorter than one year; and (8) credit and bail insurance.

17 Article 88 §1 Insurance Act.

18 Article 2262 bis §1 section 1 Civil Code.

19 Article 2262 bis §1 section 2 and 3 Civil Code.

20 Constitutional Court 20 October 2020, 140/2020.

21 Supreme Court 27 January 2020, AR C.19.0090.N, RW 2020-21, afl. 20, 778; T.Verz. 2021, afl. 1, 73, with remarks of J. Rogge.

22 Article 152(1) Insurance Act.

23 Article 152(2) Insurance Act.

24 Supreme Court 16 April 2021, C.20.0151.N.

25 Article 58 Insurance Act.

26 Article 59 Insurance Act.

27 Article 66, 3 Insurance Act.

28 Supreme Court 7 September 2020, C.19.0632.N.

29 Article 142(1) Insurance Act.

30 All risks of civil liability, with the exclusion of civil liability apart from contracts relating to the private life and the risks of civil liability relating to fire-simple risk and the risks of the same nature that are covered in another insurance contract in an additional or supplemental manner. Article 6 bis Royal Decree of 24 December 1992 implementing the law of 25 June 1992 on the non-marine insurance contract.

31 Article 142(2) Insurance Act.

32 P.19.1121.N.

33 Constitutional Court 11 October 2018, case 6752, Belgian Official Journal 26 October 2018, 81857.

34 European Court of Justice 10 September 2009, Enschig, C-199/08, 38-58, European Court of Justice 7 April 2016, Büyüktipi, C-5/15, 16-23 and European Court of Justice 7 April 2016, Massar, C-460/14, 18-25.

35 K. Van Den Wyngaert, 'Vrije keuze advocaat beperkt bij rechtsbijstandsverzekering: verruimd en beperkt', Juristenkrant 2017, afl. 350, 1 and 3; K. Van Den Wyngaert, 'Vrije advocaatkeuze in rechtsbijstandsverzekering: Grondwettelijk Hof wendt zich tot Hof van Justitie', Juristenkrant 2018, afl. 377, 1 and 20.

36 C-667/18.

37 Constitutional Court 22 October 2020, 138/2020.

38 Belgium had adapted and applied the European MiFID to the insurance sector before the Insurance Distribution Directive (IDD) was adopted. Therefore, Belgium had a similar set of rules – called 'AssurMiFID' – in place in the insurance sector before the introduction of the IDD.

39 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

41 Decree of 15 April 2019 regarding the compensation of damage caused by disasters in the Flemish region, Belgian Official Journal 23 April 2019, 39955.

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