Importance of the personal nature of the serious mistake under the omnium insurance policy!
Anyone who purchases a new car likes to have it properly insured. In this context, many people choose to take out so-called ‘omnium insurance’. This insurance also covers damage caused by the insured person to the vehicle. In addition, it is also not forbidden for the owner of a car to let someone else drive the vehicle, for example a partner or a friend.
If this partner or friend commits an accident with the car, civil liability insurance will intervene for damages to other drivers, for example.
What about the omnium insurance?
Omnium insurance policies usually have one very important ground for exclusion in the policy based on article 62, paragraph 2 of the Insurance Law. This article states that, in principle, the insurer should cover damage caused by the fault, even gross fault, of the policyholder, the insured or the beneficiary. However, according to this article, the insurer can free itself for the cases of gross fault explicitly and restrictively stipulated in the contract.
In practice, all omnium policies will contain such a clause. The exclusion is then always specified by not providing cover when the driver of the car was driving in a state of intoxication or under the influence of drugs.
The driver
The word driver is crucial here, yet legally an interesting point of contention.
Before the Court of Cassation, it is argued that failure to comply with the contractual obligation (being a serious mistake), as defined in the insurance policy, is personal in nature. Only the person who acted intentionally can lose the insurer's cover. This clause can in no way have the effect of denying coverage to those - insured or beneficiary - who are strangers to the voluntary instigation of the claim.
Thus, the insurer can release itself from paying the policyholder or insured only to the extent that the fault can be personally blamed on the insured invoking the policy. Therefore, the insured who has not committed gross fault himself remains covered even if another insured has committed gross fault in relation to the same claim.
Accordingly, as the man, owner of the vehicle was not personally at fault and was not himself the driver driving the vehicle, the insurer should intervene and pay out.
The Court of Cassation follows this reasoning and breaks the judgment of the Ghent Court of Appeal:
Court's decision
Assessment
1. Pursuant to Article 62 paragraph 2 of the Insurance Law, the insurer covers damages caused by the fault, even gross fault, of the policyholder, the insured or the beneficiary. However, the insurer may release itself from its obligations for the cases of gross fault expressly and restrictively provided for in the contract.
It follows that only the personal gross fault of the insured can be excluded from coverage and the insured himself who has not committed gross fault remains covered even if another insured has committed gross fault in relation to the same claim.
2. (...)
3. The appellate court, finding on these grounds that the defendant could rely on Article 3.A.4 of the general policy conditions to deny coverage, without establishing that the claimant himself had committed gross misconduct as referred to in this provision, does not justify its decision as a matter of law.
The plea is sustained.
Insurer must cover damages
Based on this judgment, therefore, the insurance company will indeed have to cover and reimburse its insured, who was not personally at fault.
Do you also wish to find out whether your insurer was right to refuse coverage?
Or if you have questions about a claim and your insurer's attitude in it, feel free to contact a Wanted Lawyer!