The Insurance Disputes Law Review: Italy
The field of insurance contracts is extensively regulated in Italy, especially as a result of provisions enacted at the EU level. The same complexity is reflected in litigation, with a high number of cases brought before Italian courts each year. Disputes cover not only traditional topics related to civil liability and damage compensation, but also claims for nullity of finance-related insurance products (such as unit- and index-linked policies) because of their alleged lack of compliance with the Italian Consolidated Financial Act, and claims for mis-selling and incorrect management of underlying assets and personal funds.
Contrary to other specific areas of dispute resolution – such as private enforcement, intellectual property and corporate litigation, which are subject to the jurisdiction of specialised courts or divisions – insurance disputes can be brought to the attention of any Italian court, provided that the general criteria on jurisdiction are fulfilled. Usually the place where the insured is domiciled will determine the local court's jurisdiction, so virtually every court in Italy decides on insurance disputes. For this reason, and also taking into account that the stare decisis rule does not apply in Italy, court decisions over insurance claims may vary significantly, offering quite a diversified picture in Italian case law, especially in the absence of clear leading cases rendered by the Supreme Court.
The legal framework
i Sources of insurance law and regulation
The most significant sets of provisions governing insurance contracts in Italy are:
- the Italian Civil Code (ICC), which establishes under Article 1882 ff. the general rules on contracts and obligations, as well as the specific rules governing insurance contracts;
- the Insurance Code, which provides the general legal framework concerning insurance companies, intermediaries and brokers; and
- the Consolidated Financial Act (TUF) and the regulations of the Italian securities market regulatory authority, CONSOB, which govern the pre-contractual requirements to be met by the intermediaries' distribution network when selling insurance-investment products (such as unit- and index-linked life insurance policies).
Additional relevant provisions derive from the regulations issued by the Italian Insurance Market Regulatory Authority (IVASS), which establishes (1) specific rules regarding each type of insurance contract or some of their specific aspects; (2) transparency and disclosure requirements to be met in the pre-contractual phase of the conclusion of the insurance contract; and (3) post-sale requirements.
The Consumer Code is also part of the relevant legal framework if the policyholder qualifies as a consumer, and particularly in relation to contracts concluded at a distance or on unfair terms.
Finally, the national legal framework is integrated by various EU provisions related to insurance undertakings.
As to recent developments in the national legislative framework, the following items are worth mentioning:
- Legislative Decree No. 68/2018, IVASS Regulations Nos. 39, 40 and 41 of 2018 and CONSOB Regulation No. 20307/2018, which implemented the EU Insurance Distribution Directive (IDD), also amending the Insurance Code and the Consumer Code. These provisions establish additional rules for intermediaries with particular reference to pre-contractual disclosure requirements and conduct rules, aimed at safeguarding the interests of policyholders.
- Law No. 124/2017, which provides, inter alia, new rules concerning competition in the insurance market and uniform criteria for determining the value of non-economic damages. In addition, it establishes that insurance companies will be compelled to offer discounts to customers in the field of motor insurance under certain conditions (vehicles third-party insurance is compulsory in Italy).
- Law No. 24/2017 (the Gelli-Bianco Law), which introduces the obligation for healthcare facilities to conclude a third-party civil liability policy, and establishes specific procedures related to damages claims (see Section V).
- Legislative Decree No. 165 of 25 November 2019, which introduces amendments to Legislative Decree 129/2017, which implemented the Markets in Financial Instruments (MiFID II) Directive and the Markets in Financial Instruments Regulation (or MiFIR) in Italy, through the TUF. In particular, the Decree, among other things, abolishes the obligation for notification of the key information document for insurance-based investment products, and provides sanctions for entities authorised to carry out insurance distribution activity.
- Law-Decree No. 34 of 19 May 2020 introducing urgent measures in the areas of healthcare, support for work and the economy, and social policies (the Rilancio Decree), which the government adopted in response to the covid-19 epidemiological emergency. The Rilancio Decree introduces, inter alia, measures impacting the insurance sector and, in particular, simplified procedures for the conclusion of financial and insurance contracts, taking into account the limitations imposed by the recent decrees adopted to deal with the emergency situation following the covid-19 pandemic. The new provisions apply only to contracts concluded between the date of entry into force of the Rilancio Decree and the end of the state of emergency declared by the government, currently set at 15 October 2020.
- IVASS issued several notes providing rules for facilitating the activities of insurance companies and intermediaries following the covid-19 outbreak.
ii Insurable risk
As a general rule, under Italian law, insurance contracts cannot cover risks connected to illicit or catastrophic events. For example, insurance contracts do not cover:
- events caused by fraud or gross negligence of the insured;
- the risk connected to the payment of a ransom in cases of kidnapping;
- administrative fines;
- the risk of temporary driving disqualification or suspension of a driving licence;
- damage caused to the public administration by public officials; and
- various catastrophic events, unless a specific clause is agreed.
All other risks are, in general terms, insurable, provided that there is an interest upon the contracting party to insure the specific asset or event.
In particular, with reference to the concept of 'insurable interest', Article 1904 ICC establishes that a non-life insurance agreement is invalid if the policyholder does not have an interest in the compensation of the damage. Moreover, if the interest never existed or if it ceased to exist before the conclusion of the contract, the latter is null and void. When the interest ceases to exist after the conclusion of the contract, then the policy is considered terminated. This provision is grounded on the fact that the existence of an interest is considered a fundamental element of the agreement under Italian contract law.
As a consequence, it is generally not possible to insure the assets of another subject against damages. However, interest is not necessarily connected to an ownership right, it being sufficient that a relevant relationship is in place between the insured person and the insured object (e.g., the Italian Supreme Court considers a house 'fire-insurable' by tenants, who bear the responsibility if the damaging event occurs).
Policyholders are free to insure their risks also with foreign companies, which must nevertheless comply with certain requirements. EU insurance companies can carry out their activities without having their registered office in Italy, under the approval of their home-country regulatory authority. Additional fulfilments might be required, depending on the type of insurance contract.
The nationality of the insurance company might impact the law applicable to some aspects concerning the merit of the dispute, as well as the enforcement of a possible negative judgment. With regard to finance-related products, for instance, the principle of home country control could lead to the application of the law of the country of the insurer for issues regarding the composition of the fund underlying the policy; moreover, if the insurer has no assets in Italy, the enforcement shall be started abroad, in accordance with the relevant rules of the selected forum.
The involvement of a foreign insurance company in an Italian litigation also implies some minor changes in terms of procedural rules, particularly aimed at granting a full right of defence to the party involved. The translation of the policyholders' writ of summons in a language known to the insurer might be requested under certain conditions, as well as the Italian translation of documents filed by the insurer in another language. In addition, foreign entities are granted with a longer minimum term of appearance.
iii Fora and dispute resolution mechanisms
In Italy there is no specific court dealing with insurance disputes, and these tend to be decided predominantly by civil courts. When a policy is entered into with a consumer, the competent court is the one of the place of residence or domicile of the insured (although alternative criteria for jurisdiction may apply at the plaintiff's discretion).
As regards international disputes, the jurisdiction of the Italian courts is established pursuant to the Brussels Regulation and thus Italian ordinary courts may have jurisdiction depending on the cross-border elements contained in the insurance contract (e.g., if the policyholder resides in Italy).
As to the procedural rules generally applicable to all insurance-related disputes (i.e., also for foreign insurance companies), the plaintiff shall start compulsory mediation proceedings before initiating full legal proceedings in court; this constitutes a prerequisite for action. A court claim could therefore be lodged only if the mediation proceedings proved to be unsuccessful, as may be the case if the defendant does not attend mediation or the parties do not reach an agreement.
Italian law also provides for some alternative dispute resolution mechanisms, which are summarised below.
For disputes regarding compliance by the insurer or its financial intermediaries (e.g., banks, investment companies and other financial intermediaries) with the provisions of the Consolidated Financial Act (and relevant implementing regulations on distribution of insurance investment policies), claimants may refer the matter to the Arbitrator for Financial Disputes (ACF), established by CONSOB.
Arbitration clauses, on the other hand, are not common in insurance contracts with consumers and must be specifically negotiated and approved in writing if proposed by the insurer. Furthermore, for certain types of coverage (e.g., accidents and health insurance), IVASS provides specific requirements as to the seat of the arbitration.
Arbitration clauses are commonly used when insurance contracts are entered into with being decided by an arbitrator (or a panel of arbitrators) once it has already arisen.
This scenario is subject to further developments in the future, as a Ministry Decree is soon expected to set up a further alternative dispute resolution mechanism (as established under the recently introduced Article 187 ter of the Insurance Code), which is likely to follow the ACF model of specialised arbitral tribunals.
This would represent a voluntary venue for dispute resolution and would therefore be more accessible, even for individuals and small companies.
Like insurance contracts in general, insurance disputes can be classified into litigation focused on life insurance policies and third-party policies. Recent insurance law hot topics for Italian courts are indicated below based on the same classification.
i Life insurance
With regard to life insurance policies, one of the main issues concerns the nature and validity of unit- and index-linked policies.
Despite the clear approach of the European Court of Justice (ECJ) – which has repeatedly stressed the insurance nature of these kinds of products – the debate in Italy is still open, in part because of the case-by-case approach preferred by the Italian Supreme Court, whereby unit- and index-linked policies may be classified as insurance products only if the demographic risk undertaken by the insurer prevails over the financial risk borne by the policyholder. On this basis, and in very general terms, Italian judges tend to requalify unit- and index-linked policies as financial products, especially when policyholders' invested premiums are not granted.
The issue of the qualification of these products is particularly relevant, as it results in the application of rules (those of the TUF) that are different from those the insurance companies and intermediaries had in mind when distributing the policies (i.e., the provisions of the Insurance Code), thus exposing them to the risk of a negative outcome in the event of disputes. A law was passed with the aim of solving this problem, including unit- and index-linked products in the TUF, but the results were not satisfactory. The application of TUF provisions to those products was only partial, and therefore the requalification led to the application of also some other TUF provisions that were not provided for in the law.
The legal framework therefore became confused, and this uncertainty (which the legislature intends to eliminate with the implementation of the IDD) clearly impacted the different approaches of the Italian courts. Investors who lost (or partially lost) invested premiums generally raised several different claims to be reimbursed for their losses.
A first common claim is the request to terminate the policies (or to award the insured damages) for breach of informative duties, related to both the conclusion of the policies and the contractual relationship.
On this point, some courts have found that when all the risk related to the investment is borne by the insured, the policy has a financial nature. Accordingly, the information duties provided by the TUF and relevant regulatory provisions should apply, under penalty of damage compensation, rather than repayment of the invested premium and nullity of the policy. This trend is in line with the case law precedents of the Joint Divisions of the Supreme Court, which established that the breach of information duties results not in the nullity of the policy, but rather in the obligation to pay damages. As a result, insurance companies are obliged to pay damages in cases of breach of information and conduct duties provided under the TUF only if they sold the disputed product directly to the insured.
The grounds on which the claim is brought are particularly significant since, in the event of repayment of the invested premium as a result of nullity of the policy, the obligation to repay would in principle lie with the insurer. In contrast, liability for damages would in principle lie with the subject dealing with the distribution of the products, which might be either the insurer or a third party (intermediaries or brokers). Furthermore, claims for repayment are subject to a 10-year limitation period, while a five-year limitation period applies to claims addressing pre-contractual liability (according to prevailing case law).
Another common request is to declare unit-linked policies null and void for being in breach of mandatory rules or without a written form (as required by Article 23 TUF).
In this context, in a decision of 20 October 2017, the Court of Treviso considered the lack of a framework agreement to lead to the nullity of the policy, for having been concluded in breach of Article 23 TUF. This Article provides that financial products have to be concluded together with a framework agreement, namely a written contract between the intermediary and the investor reporting all information on the future investments (this provision should no longer apply to unit-linked policies after the implementation of the IDD). In this case, the Court also ordered the insurance company to reimburse the paid premium. However, the topic is subject to debate as other courts have ruled (more reasonably in our view) that the framework agreement is not required if the policy contains all the relevant information stipulated in Article 23 TUF. Some others have taken the view that, even if the framework agreement is required, the lack of it would trigger a repayment obligation for the intermediary rather than for the insurer (unless, of course, the product has been directly distributed by the insurance company).
Claims of nullity are in general terms not subject to limitation. However, given that Article 23 TUF provides a form of nullity for the protection of the consent of the policyholder as the remedy to annulment, the Court of Prato ruled on 8 August 2018 that the limitation period of five years provided for the action for annulment applies also to claims for breaches of Article 23 TUF.
On 4 November 2019, the Joint Divisions of the Supreme Court stated that the lack or nullity of the framework agreement claimed as an event triggering the nullity of subsequent investments cannot be incidentally ascertained and thus the alleged nullity of the subsequent investments cannot be declared unless the lack of the framework agreement is fully investigated by the court. Even though the decision of the Supreme Court was not about unit-linked policies, but rather about the purchase of financial products, it seems that according to the decision a full investigation of the framework agreement cannot be carried out in the absence of the intermediaries – parties to the contract – and thus the nullity clam should be dismissed on procedural grounds if the policyholder did not sue the intermediary. The decision is also important on another count as it states that investors cannot abuse their exclusive right to claim the nullity of the framework contract by seeking a declaration of nullity in respect of selected parts of the investment instructions (i.e., those parts that have not led to successful results) if the investment as a whole has been beneficial to them.
This latter argument was followed by a decision of the Court of Salerno on 5 March 2020, which rejected the investor's request to declare the nullity of the purchased financial product for the lack of the framework agreement because the nullity was claimed only when the investment was liquidated and thus only when the investor had realised that the performance was not good. The Court observed that the constitutional principle of good faith applicable in any phase of the conclusion and implementation of a contract prevents individuals from abusing their rights by requesting remedies that appear to be inconsistent with their own prior behaviour (e.g., a request of surrender cannot be followed by a request of nullity of the same contract), regardless of the overall financial result of the investment.
Other claims were grounded on the request to terminate the policies for breach of contractual provisions or annul them because they were issued without a proper consent (or resulting from misleading information provided at the moment of the conclusion of the policies).
With respect to the former claim, on 30 April 2018 the Supreme Court confirmed a decision of the Court of Appeal of Milan and declared the termination of the policy because of the inconsistency between the risk profile (and preferred investments) indicated in the proposal form by the policyholder and the assets linked to the policy eventually chosen by the insurance company. In particular, the Supreme Court applied the relevant provisions of the TUF and relevant secondary legislation, which stipulate precise informative duties to be carried out at the moment of the distribution of financial products, confirming a previous decision of 2012. In its decision, the Supreme Court pointed out that in the case of unit-linked policies, the judge shall assess on a case-by-case basis whether they shall be considered insurance or financial products. In the latter case, the Court shall apply the relevant TUF provisions regarding the intermediary's information and conduct obligations.
On 5 March 2019, the Italian Supreme Court issued an important new judgment on unit-linked policies, setting out detailed and precise guidelines on assessing their nature. This decision opened a new debate on the validity of unit-linked contracts issued in the absence of demographic risk, which is a relevant element of the insurance contract under Article 1882 ICC. More specifically, the Supreme Court declared that unit-linked policies have mixed legal purposes (financial and life insurance) and may be considered valid insurance contracts only if an effective transfer of the risk from the insured to the insurer is provided. The reference is to the 'demographic risk' in relation to which the judge shall assess the extent of the insurance coverage. This evaluation should be made taking into consideration (1) the premium paid by the policyholder, (2) the duration of the policy and (3) the type of investment. The policy at issue provided death cover equal to 0.1 per cent of the counter value of the units of the fund linked to the policy and the Supreme Court objected that this amount, compared to the premium amount paid by the policyholder, was not enough for the balance of the obligations of the parties under the contract. Moreover, the Supreme Court also declared that even if the financial purpose prevails, the life insurance purpose must in any event be compliant with the general principles set out by the Italian Civil Code, by the Insurance Code and by IVASS regulations.
The issue of unit-linked policies was also discussed at the European Union level. On 31 May 2018, in line with its previous decision of March 2012, the ECJ stated that unit-linked policies can be considered to fall within the concept of 'insurance contracts'. Further, to be qualified as an insurance contract, it is sufficient that the agreement establishes the payment of a premium by the insured party in exchange for the supply of a service by the insurer in the event of the death of the insured party, or the occurrence of a different event specified in that contract. Accordingly, the ECJ found that EU Directive 2002/92 applied, which governs insurance mediation rather than EU Directive 2004/39 on financial intermediation.
Applying the ECJ's interpretation, the Court of Bergamo, in cases involving non-guaranteed unit-linked policies, pointed out that the principles identified by the Supreme Court in the decision of 5 March 2019 should not apply, as they conflict with the European Union legal framework and decisions by the ECJ. Unit-linked policies may also be classified as insurance contracts where the demographic risk remains for the insured, insofar as the policy provides for an 'insurance benefit' in the event of the 'death of the insured person or the occurrence of another event referred to in the contract in question'. Therefore in principle a policy that provides death cover equal to 0.1 per cent of the counter-value of the units of the fund linked to the policy is valid and in line with the binding decision of the ECJ.
In contrast, it is worth mentioning, the recent decision of the Court of Florence, which instead relied upon the decision of the Supreme Court of 5 March 2019 and declared the policy null and void for absence of demographic risk, on its own motion beyond the plaintiff's claims. Article 1421 ICC in fact allows the judge to ascertain and declare the nullity of a contract on its own motion.
Finally, the Court of Verona clarified that Article 1923 ICC (which excludes enforcement proceedings on the indemnification sum due by the insurer in the case of life insurance policies) should also apply to unit-linked policies of a financial nature.
ii Third-party insurance
With regard to claims related to third-party insurance, one of the most debated issues recently concerned claims-made clauses, which was finally settled by a very recent decision of the Supreme Court.
These clauses are contained in third-party insurance policies and generally establish that the policy will cover only those damages for which the third party raises a claim during the period of validity of the policy. However, these clauses can be formulated in different ways and, for example, may also provide that the policy will cover only those cases in which both the damage and the claim occur within the period of validity of the policy.
The validity of insurance contracts containing claims-made clauses was subject to extensive scrutiny by Italian courts, which in some cases declared them null and void as vexatious under Article 1341 ICC. The courts considered that those clauses limited the liability of insurance companies, with a consequent need for the explicit written consent of the insured for the contracts to be valid.
In some other cases, the validity of the whole contract was challenged, as it would have allegedly constituted an agreement that was outside the scope of lawful atypical insurance contracts, thus being unenforceable under Italian law.
The Joint Divisions of the Supreme Court were therefore requested to issue a decision on the topic. The judgment was rendered in September 2018 and, while it rejected the alleged grounds of invalidity reported above, it substantially declared that the validity of claims-made clauses shall be assessed on a case-by-case basis.
In particular, the Court confirmed that insurance contracts containing claims-made clauses are not atypical, especially taking into consideration that recent laws expressly govern them. Moreover, such clauses cannot be considered vexatious, as they merely define the object of the contract and do not limit the liability of the insurance company. Accordingly, the potential invalidity of such clauses cannot generally be upheld and must be assessed depending on additional and specific elements, including the way they are formulated.
Finally, another topic worth mentioning is that of legal costs. In particular, insurance companies are usually joined in the proceedings to indemnify the insured, and the issue of the awarding and attribution of legal costs is usually debated. The Supreme Court, in a decision of 4 May 2018, held that the indemnification should cover not only the legal costs that the losing party pays to the counterparty, but also the costs related to the legal assistance provided to the losing party, even if these exceed the agreed cap (within the limit of one-quarter of it, as provided under Article 1917 ICC).
The international arena
In the context of litigation involving international parties, the issue of jurisdiction is often raised. A recent case focused on this topic in the context of civil liability litigation, and in particular on the possibility of a damaged party suing in his or her own country the foreign insurance company of the counterparty. The Italian court applied EU Regulation No. 44/2001, which establishes different alternative criteria for identifying the court that has jurisdiction to decide the case. In its reasoning, the judgment found that, as a general rule, an insurance company may be sued before a court of the state in which the company has its registered office, in which the event occurred or, alternatively, in the place in which the litigation has been commenced by the subject who suffered the damage, provided that the insured and the insurer can be summoned in the same proceedings. In addition to those general criteria, the court clarified that under Article 9 of Regulation No. 44/2001, the insurer may also be sued before the court of the state in which the claimant is domiciled if litigation is commenced by the insured, the beneficiary of the policy or the person who concluded the insurance contract. Following a case law precedent of the ECJ, the court concluded that pursuant to Article 11 of Regulation No. 44/2001 all the above-mentioned criteria apply also to litigation commenced by the person who suffered the damage, who can therefore directly bring an action against the insurance company of the counterparty if that is possible under the domestic law of the person who suffered the damage (which it is in Italy).
ii Representatives of foreign insurance companies
With reference to third-party insurance, and specifically on the point of standing, a topic recently addressed by both EU and Italian courts concerned the possibility of suing directly the claims representative of a foreign company. Pursuant to Article 1 of Directive 2000/26/CE, every insurance company that issues its policies in foreign states has to appoint a claims representative in each Member State other than the one in which it has its registered office. The claims representative shall be responsible for handling and settling claims arising from the events referred to in Article 1. However, the Directive does not specify whether it is possible for the insured to sue the claims representative directly. On this point, the ECJ ruled that the representative is entitled to receive judicial notices on behalf of the company, but cannot stand trial on behalf of the company, as established by Article 18 of the Rome II Regulation (which considers the insurer as the only subject that can be sued directly). On the other hand, the Italian Supreme Court later issued a decision that, according to some scholars, would be at odds with that of the ECJ as it held that the plaintiff would be entitled to bring an action before the damaged person's national court also against the representative of the company.
iii Home country control
The topic of unit-linked policies is also often connected to the activity of international insurance companies in Italy. With particular reference to EU companies, one of the principles most often debated is that of 'home country control'.
In decisions rendered in 2016 and 2015, the Courts of Turin and Milan rejected policyholders' requests for the declaration of nullity of unit-linked policies, as these were linked to hedge funds not allowed under Italian law. The decisions were grounded on the principle of home country control, according to which the investments linked to the policy are governed by the rules of the law of the country in which the insurance company has its registered office. This holds true even if the policies are governed by Italian law. In this context, it is also worth noting that this principle has been applied recently by the Supreme Court.
iv Punitive damages
Another recent and much debated issue among private insurance associations is the decision of the Supreme Court rendered in July 2017 concerning punitive damages. The decision was rendered in the context of the enforcement of a US judgment in Italy and substantively introduced the possibility of recognising the award of punitive damages against an Italian company in a foreign judgment. However, this matter did not touch upon the insurance field and is unlikely to have an impact on existing Italian insurance contracts, as punitive damages are still not insurable under Italian law. Furthermore, the decision will not result in the possibility of Italian judges awarding punitive damages, as a specific law would be required for that purpose.
Trends and outlook
i Healthcare disputes
The recently introduced Gelli-Bianco Law regarding hospitals and other healthcare facilities' liability is likely to have a significant impact on insurance litigation, with preliminary data registering an increase in disputes in the medical field since the entry into force of the Law on 1 April 2017.
On the one hand, the Law establishes that healthcare facilities are responsible for any damage they (or the operators working therein) may cause to third parties. On the other hand, healthcare facilities are now obliged to conclude a policy that covers the risk related to damages claims that may stem from this liability. Subjects who have allegedly suffered damage can bring an action against the insurance company directly. Under certain conditions and within certain limits, the healthcare facilities have the option to reverse the liability for the potential damages arising, on to the healthcare operator responsible for the illicit event. Moreover, the Law establishes the nature of the liabilities of the healthcare personnel and healthcare facilities with consequences for the burden of proof, which may impact the outcome of the proceeding and then the insurance company. In particular, according to the Law, the healthcare facilities have a contractual liability in relation to the damaged parties in cases of medical malpractice. Hence, the damaged parties have to allege the breach of the contractual obligation and prove the damage suffered, while the healthcare facility bears the burden of proof to show that the damage was not linked to its conduct. Furthermore, the Law establishes that the healthcare personnel have a non-contractual liability and therefore the major burden of proof lies upon the damaged parties, who have to prove the negligence and wilful misconduct of the healthcare personnel.
Before bringing an action into court grounded on the aforementioned liability, any interested party must initiate a compulsory preliminary attempt at settlement with the other parties involved (including the insurance company), with the assistance of an expert appointed by the court for the calculation of the amount of the alleged damage (the proceedings are governed by Article 696 bis of the Italian Code of Civil Procedure). Alternatively, it is possible to seek the assistance of a civil mediator.
This item is therefore likely to increase in importance in the future because of the complexity of the matters, the number of subjects potentially involved and the multiple steps that govern relevant claims. However, it should also be noted that it is now three years since the enactment of the Gelli-Bianco Law and the ministerial decrees necessary to implement and render effectively the procedural instruments outlined above have not yet been issued. Nonetheless, jurisprudence is in the meantime playing an important role as a 'regulatory substitute', offering interpretive solutions to implement the reasoning underlying the Law, in the absence of ministerial decrees. For example, the Court of Benevento also recently stated that the proceedings on the merits before the court should be commenced between all the parties concerned (damaged party, healthcare facility and insurance company), even though at present damaged parties are unable to bring the direct action provided by the Gelli-Bianco Law against insurance companies because of the failure to issue the ministerial decrees.
ii Unit-linked policies
As reported above, disputes related to unit-linked policies are widespread in Italy, with several pending proceedings throughout the country. These policies are nonetheless still one of the highest-selling products in the life insurance market, accounting for 34 per cent of the total premiums in 2017. Preliminary data for 2020 seems to confirm the positive trend.
iii Tampering policies
Another topic currently under the spotlight of Italian insurance-related press is that of tampering policies, which were introduced to the insurance market to protect companies from the risk of accidental or intentional contamination of food-related products, which may occur if the systems of production, conservation and distribution of the products are not hygienically appropriate or because of fraudulent acts of third parties. The withdrawal of the contaminated product from the market may have disruptive consequences: it may damage the company's reputation and usually results in high unexpected costs. Tampering policies prevent these consequences by providing reimbursement for the consultancy costs in the various phases of the crisis, the costs directly incurred for the withdrawal of defective products, the information to be provided to consumers and the re-distribution of new products. The area of product liability disputes is currently very active in Italy and tampering policies introduce a new relevant element to the scenario, whose developments shall be closely monitored in the future.
Insurtech (i.e., the application of new technologies to the insurance sector) is a growing field in Italy, even though its figures are low compared with the Anglo-Saxon market. Some insurance companies are also carrying out research aimed at verifying the applicability of blockchain technology to prevent disputes and, ultimately, litigation, especially in the medical and transport fields. Attention is also focused on aspects related to the internet of things and artificial intelligence. All in all, this sector is still in its infancy but it is likely to increase. Specialist areas of competence will therefore be required to deal with potential disputes in the future.
The spread of covid-19 is very likely to impact on insurance litigation.
Although there is still considerable debate ongoing and there are no case law precedents, it is probable that we will see health disputes in which insurance companies will try to exclude damages arising from covid-19 from insurance coverage. For instance, insurance companies may argue that covid-19 has increased insurance risk coverage and, according to Article 1898 ICC, this in principle allows them to withdraw from the contract. Moreover, they may also argue that the pandemic may be considered a catastrophic event, uninsurable unless specific provision is agreed between the parties. In contrast, healthcare personnel in medical malpractice cases resulting from the difficult situation caused by covid-19 could defend themselves by arguing that they may be held liable only for gross negligence or misconduct according to Article 2236 ICC.
Furthermore, as a result of the covid-19 pandemic, it is likely that there will be an increase in litigation for business interruption. The current pandemic has, in fact, caused huge losses through the forced closure of almost all companies. The outcome of these disputes will depend on the possibility of sustaining the existence of coverage against business interruption in relation to the covid-19 pandemic. In this regard, it will be necessary to verify on a case-by-case basis the applicability of 'property and casualty all risk' clauses, which usually cover business interruption through damage suffered by the insured goods. In the case of covid-19, the business interruption was instead caused by measures adopted by the government. Many policies also have a 'civil authority orders' clause, according to which business interruption is insured if caused by an order issued by a public authority. To be effective, such clauses require the public authority order to have been provoked by events that affected the insured assets. However, business interruption due to the covid-19 outbreak may not always cause damage to insured assets.
Also of particular interest are the issues relating to insurance coverage in the event that employees contract covid-19. The Heal Italy decree has compared covid-19 contagion to individual injury, in which case the National Institute for Insurance against Accidents at Work (INAIL) may compensate losses if employees suffer from covid-19. However, in turn INAIL may then claim reimbursement from the employer, who, to avoid having to pay compensation, would have to demonstrate that all covid-19 protocols to avoid contagion had been implemented In this regard, issues may arise where infection has been contracted before the implementation of the covid-19 protocols.