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17 May 2016
Principle of law
On May 6 2016 the Joint Divisions of the Supreme Court published a long-awaited judgment (9140) on the issue of the validity and enforceability of claims-made clauses.
In line with its own previous judgments, the Supreme Court established the following principle of law:
"In a civil liability insurance contract, clauses which make the operation of insurance coverage subject to the condition that both the wrongful action and the claim occur and are made within the policy period, or at least within the specific period of time indicated in the contract... are not unfair. Under certain conditions, however, [such clauses] may be held null and void in the absence of interests worthy of protection or... in the case of consumers, because it determines a significant imbalance in the rights and obligations under the contract."
In the grounds of the judgment the court established the following additional principles of law, which appear to be reassuring for market players:
However, the drawbacks of the judgment may be identified in passages which, after acknowledging the duty of any professional to take out insurance covering his or her professional negligence (as a result of legislative measures passed from 2011 to 2014), state that "the judgment of suitability of the policy is unlikely to be positive in the presence of a claims-made clause, which, however articulated, exposes the insured to gaps in the coverage".
The decision adds that this aspect will be taken into account "in the preparation of the presidential decree to establish the minimum requirements of insurance coverage for healthcare professionals".
For further information on this topic please contact David Maria Marino at DLA Piper Italy by telephone (+39 02 80 61 81) or email (firstname.lastname@example.org). The DLA Piper website can be accessed at www.dlapiper.com.
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