The case. On March 16, 2013, during a motocross event organized on its circuit by an association affiliated with the French Motorcycling Federation, a motorcyclist fell and his motorcycle hit a group of spectators, seriously injuring two children, then aged 10 and 11 years old. A criminal court, by final judgment of December 8, 2016, declared a volunteer of the association, who had indicated to the children where they should be placed, and the association, guilty of the offenses of involuntary injury against them.
The parents of one of the children, acting both in their personal name and as legal representatives, appealed to a judge, who, by order of November 25, 2013, notably took note of the Guarantee Fund for compulsory insurance for damages from his voluntary intervention (FGAO), ordered a medical assessment of the child and ordered the insurer to pay the parents, in their capacity, a provision to be used towards compensation for their losses and that of their son . By registered letter with acknowledgment of receipt dated December 18, 2013, a broker declared to the FGAO, as well as to the interested parties, that the insurer considered that its guarantee was not due, since the accident had occurred during an event in the presence of spectators and not a simple training session.
The insurer brought before a high court the parents of the young victims, the association, the biker and the volunteer, so that it could be judged that its guarantee was not acquired. The FGAO intervened in the proceedings.
By a judgment dated May 12, 2021, the Agen Court of Appeal ruled that the insurer’s guarantee was not acquired and, consequently, rejected the requests presented against it. It declared the FGAO and the association required to compensate all damages suffered by the victims and their parents as a result of the traffic accident that occurred on March 16, 2013 and set the amounts of the provisions due to each.
Appeals and the position of the second civil chamber. The decision of the Court of Appeal was followed by several appeals, including those of the FGAO and the biker. Both consider that the formalities of article R. 421-5 of the insurance code are the responsibility of the insurer alone and criticize the appeal ruling in that it admitted that an agent of the insurer could accomplish it in his place. The response from the second civil chamber is very clear: “According to article R. 421-5 of the insurance code, in its wording prior to decree no. 2018-229 of March 30, 2018, when the insurer intends to invoke nullity of the insurance contract, its suspension or the suspension of the guarantee, non-insurance or partial insurance enforceable against the victim or his beneficiaries, he must, by registered letter with acknowledgment of receipt, declare it to the FGAO and notify the victim or their beneficiaries at the same time and in the same manner. Neither this article nor any other text prohibits these letters from being sent by the insurer’s agent. It is therefore by an exact application of these provisions that the Court of Appeal held that the insurer had satisfied the requirements of the aforementioned article by the letter addressed to the FGAO by its broker, on December 18, 2013, explaining the reason of non-guarantee” (Civ. 2e, Dec. 21, 2023, n° 21-20.286, pts 11 to 13).
Furthermore, the FGAO attacks the mandate: on the one hand, the insurer would not have produced in court the mandate which it uses towards the broker for the management of claims occurring during the practice of sports mechanical. On the other hand, the insurer would have created a title for itself, which would infringe article 1353 of the civil code, by only producing a certificate, drawn up by itself, of the mandate that it would have entrusted to the broker.
A unique solution in insurance law
In this case, the question arose as to whether only the insurer could validly carry out the formalities prescribed by Article R. 421-5, paragraph 1, of the Insurance Code. For the record, the text, in the version applicable to the case, indicated: “When the insurer intends to invoke the nullity of the insurance contract, its suspension or the suspension of the guarantee, non-insurance or partial insurance enforceable against the victim or his beneficiaries, he must, by registered letter with acknowledgment of receipt, declare it to the guarantee fund and…
2024-01-23 23:10:22
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