ABSTRACT
Insureds depend on the behaviour of their insurance companies for a swift resolution of the claims they submit. If an insurer wrongfully delays, denies or handles a claim, the consequences may be of great impact for an insured. Not only is the latter denied a much-needed payment, but the insurer’s wrongful behaviour may also inflict additional damage to the insured. What is the legal position of the insured? Can he claim additional damages beyond the scope of the policy? Or do the insurance policy terms box him in and effectively shield the insurer from any additional liability for his wrongful claims handling? Any act which constitutes unjustified denial of coverage, unnecessary delay in resolving claims or another violation of the rights of the insured under the policy, calls for an appropriate remedy. But what is appropriate? Given that most standard policies may be used to deflect any responsibilities beyond the primary cover, the question is whether and how legislatures and courts counter this out-balanced relationship between insurer and insured. This contribution explores how legal systems deal with wrongful claims handling by an insurer. More specifically, we look into the approach taken in English law, German law and USA law. These major legal systems take distinct approaches to wrongful claims handling. By comparing these three, we aim to gain further insight in the various ways of shaping the remedies available to wronged insureds.
Sirks, Delphine and Van Boom, Willem H, Wrongful Claims Handling by Insurers – a Comparative Overview of Remedies Available to the Insured (March 9, 2023) in Ernesto Tzirulnik, Paulo de Tarso Sanseverion, João Nuno Calvão da Silva and Inaê Siqueira de Oliveira (eds), Direito do Seguro – II Congresso Internacional de Direito do Seguro VIII Fórum de Direito do Seguro José Sollero Filho CJR/STJ/IBDS, São Paolo: Editora Contracorrente / Editora Roncarati 2022.
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