The Supreme Court has adopted a resolution that will contribute to improving the quality of insurance claims.
On 2 September 2019 Supreme Court in the Signature Case III CZP 99/18 it adopted a resolution according to which "the injured person and the assignee of compensation claims for compulsory insurance of civil liability of motor vehicle holders shall be entitled to reimbursement of the costs of the so-called private opinion (expertisation) of the valuer if it was necessary for the effective recovery of compensation".
The resolution in question has a very positive impact on the legal and economic position of the victims of claims for damages understated by the insurer. As a result, insurers, being aware of the need to cover the possible costs of the remuneration of an independent expert, will less often understate the amount of compensation
This resolution was given in response to a legal question asked by the Financial Ombudsman in the motion for a resolution dated 16 November 2018, ‘I.
In the light Article 34(1) in conjunction with Article 36 Act dated 9 February 2018 (Journal of Laws of 2018, item 473) on compulsory insurance, Insurance Guarantee Fund and Polish Communication Insurance Office (Journal of Laws of 2018, item 473) and Article 361(1) and (2) Act dated 10 May 2018 Civil Code (Journal of Laws of 2018, item 1025), the cost of a private expert expert to be paid by the injured person in order to determine the amount of damage or liability of the insurer in the course of the winding-up (pre-judicial) procedure shall be compensated under the insurer's guarantee liability under the compulsory liability insurance agreement of motor vehicle holders?
II. Is the same compensation also subject to the cost of a private expert expert from the assignee who acquired compensation from the injured person?”
The issue presented to the Supreme Court was a result of differences in the case law of the Financial Ombudsman concerning the handling of claims relating to private opinions from victims or assignees engaged in the professional purchase of claims within the OC.
The subject matter of the resolution is extremely important, since, as it is widely known, insurers in the course of the injury elimination procedure often undercut the damage in their valuations in different ways. A correct estimate of the damage is often very complicated and requires expertise.
Thus, the injured, questioning the reliability of the insurer’s valuation, are forced to use the services of entities that have the necessary knowledge in this respect.
It should therefore not be doubtful that, where the insurer intentionally understates the amount of compensation due, the costs of the valuation necessary to challenge the insurer’s position and the effective recovery of the compensation remain in a reasonable relationship with the damage and should be reimbursed by the insurer as costs in fact exacerbating the damage and therefore eligible for compensation.
The resolution adopted by the Supreme Court therefore complies with the principle of full compensation in civil law. It must be indicated that injury within the meaning of Article 361 k.c.
is the difference between the property status of the injured person, which arose after the occurrence of an event causing damage, and the condition which would exist in his property if the event had not occurred. The obligation to pay compensation shall cover the normal consequences of the action or omission resulting from the damage.
It is clear that the damage is all that the victim has lost, and therefore not only the reduction of assets but also the increase of liabilities. (Regional Court for Warsaw, Warsaw dated 17 November 2008, reference no. II C 1132/06).
The resolution in question has a very positive impact on the legal and economic position of the victims of claims for damages understated by the insurer. As a result, insurers, being aware of the need to cover the potential costs of the remuneration of an independent expert, will less often understate the amount of compensation.
In addition, the sanctioning by the Supreme Court of the costs associated with obtaining private expertise will undoubtedly facilitate the investigation of these claims before the general courts.
Author: Michał Wasilenko
Lawyer, Senior Associate in the Legal Department, member of the Bar Association in Lublin, graduate of the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin. He specializes in commercial and civil law law.