[INSURANCE LAW] Insurance and Personal Injury
The purpose of personal accident cover is to receive a contractually fixed sum from the insurer, in addition to the reimbursement of all or part of medical expenses, and paid to the insured in the event of life or to the designated beneficiaries in the event of death. The contract is taken out either individually as the main form of personal accident cover, or as an accessory in the context of motor and comprehensive home insurance, or collectively through a credit institution, a company or an organization linked to a given activity.
LexCase offers a “Focus on” on Insurance and Personal Accidents
The accidental event
The insurer covers the risk of unintentional bodily injury resulting from the sudden action of an external cause. An accident is an unforeseen event, and is therefore sudden. However, the determining factor is the external cause. It is the cause of the damage that must be sought, not the cause of the accident. An external cause is one which is not attributable to an intrinsic bodily alteration in the insured, and which is not linked to a pathological condition. This means that illness-related conditions are not covered.
This also means that the event is beyond the insured’s control. Accident does not exclude clumsiness, unless there is a deliberate attempt to avoid the risk. Thus, the insurer cannot decline coverage on the grounds that the accident was caused by the victim’s clumsiness.
The insured must prove that the claim falls within the conditions of coverage, by any means necessary. However, such proof is sometimes difficult to provide, especially in a complex situation where circumstances combine to confuse the issue. This is the case, for example, of a death caused by a traffic accident following the insured’s cardiorespiratory arrest, especially when the beneficiaries are unable to establish the circumstances. In such cases, the judge will be called upon to rule on clues and presumptions, particularly of a medical nature.
On the other hand, it is up to the insurer to demonstrate that an exclusion clause, i.e. one designed to exclude a particular event or risk, complies with legal and jurisprudential requirements – that it is formal, limited and clearly worded – and that it is applicable to the case in question
Full compensation and guaranteed benefits
Agreed benefits vary according to the insurance contract, in application of contractual freedom.
They are compensatory in nature for reimbursement of expenses, and lump-sum for incapacity, disability and death benefits.
The insurer who has paid the benefits may exercise a subrogatory recourse in the presence of a liable third party. The insurer will be vested with all the rights and actions that the insured had against the person liable for compensation or his insurer, including the direct action that he has against this insurer.
The insured will be able to do the same if he/she finds himself/herself in a situation of overdraft of cover. The principle of full compensation enshrined in French and European law obliges the person liable to restore the balance by providing financial compensation for the damage suffered.
The benefits provided under personal accident insurance, commonly known as “GAV”, are of an indemnity nature, which means that the insurer also has a subrogatory right of recourse against the liable third party when there is one.
Third-party payers who have contributed to the cost of the damage by paying benefits also have a subrogatory right of recourse.
Naturally, all sports practised as an amateur, or in a club through group insurance, are covered if they occur during the practice of a particular sport. However, high-risk sporting activities, as well as reprehensible behavior on the part of the insured, such as participation in a brawl as the perpetrator, drunkenness and drug use, are generally excluded from contracts, as long as they are directly linked to the bodily consequences complained of by the insured. There are, however, redeemable exclusions, allowing the insured to cover a given risk by declaring it and agreeing to pay an additional premium. This is the case for sports considered dangerous – parachuting, climbing, motor sports – which will only be covered if an additional premium is paid.
Suicide does not have to be expressly excluded by the policy, as long as the accident involves an event beyond the insured’s control. The provisions of the French Insurance Code relating to the insurability of suicide do not apply to personal accident insurance contracts. In such cases, it is up to the insurer to prove that the insured has taken his or her own life, which may not be easy in the case of drowning, fatal injury caused by the use of a firearm or a traffic accident. The judges will then analyze the circumstances of the tragedy, the nature of the fatal injuries and the insured’s psychological state.
Claims, prescription and payment of benefits
The insurer must provide the benefit within the agreed timeframe, and any delay exposes it to interest on arrears. The insurer may, however, wait until the consequences of the accident have been definitively determined, or until an expert report has been made, or until the insured has provided the documents required for the claim to be processed, it being understood that such requests must be reconciled with medical confidentiality. The insured has a right of access to the technical notes of the doctors appointed by the insurer, provided that these notes contain health data concerning the insured.
Insurers’ financial and human commitment
For major bodily injury accidents, the event causes a real upheaval, and compensation payments through provisions are not always enough to reorganize daily life. Insurers published a White Paper in 2008, and again in 2018, setting out a charter of best practice to ensure that accident victims receive personalized support and concrete, immediate answers. It’s not just a question of quantifying losses, but also of enabling reconstruction towards a new reality. In this way, compensation takes on its full human dimension.