In 2019 the Federal Ministry of Justice and Consumer Protection presented its draft bill for a new and independent law on corporate penalties. Pursuant to the draft bill, considerable fines may be imposed not only on the persons involved in wrongdoing, but also on companies. This will significantly affect insurance cover, especially in the areas of professional indemnity and directors' and officers' insurance.
In a recent decision, the Federal Court of Justice once again stressed the difficulties in and the importance of obtaining a precise legal subsumption of the established facts where the pre-contractual duty of disclosure is concerned. The decision is relevant for all insurance contracts that fall under the Insurance Contract Act, although special regulations exist.
The Hamburg Court of Appeal has expressly discarded an earlier obiter dictum, ruling that a representative action (ie, an authority to pursue the claim of another in one's own name) by an insurance agent on behalf of the insurer stops time only if the agent disclosed its authority and the name of the represented insurer when filing the action. A later disclosure of the authority – which existed at the time of lodging the claim – in court has no retroactive effect and does not interrupt the limitation period.
A recent Hamm Higher Regional Court decision concerning insurers' duty of advice continues the previous case law in respect of partly favourable and partly unfavourable new conditions or conditions that are merely more favourable for the policyholder. The case highlights the question of whether insurers have a duty to advise assureds of amendments made to the general terms and conditions in their insurance policies, particularly with regard to linguistic amendments.
The Federal Court of Justice recently ruled on the appropriate jurisdiction regarding a head carrier's insurer's direct claim against subcarriers' liability insurers. The first and second instances had affirmed their international jurisdiction and admitted the direct claim against the liability insurer on the basis of Article 31(1)(1)(b) of the Contract for the International Carriage of Goods by Road. The Federal Court of Justice confirmed this approach.