Injury to the right of credit due to an accident of the separated spouse

The ex-wife sued the driver of the motorcycle before the Court of Rimini, the owner of the same and the insurance, to obtain recognition that the accident of 13 June 2009, in which it was her ex-husband was injured (transported on board the motorcycle), was attributable exclusively to the driver of the motorcycle. Furthermore, the woman requests, as compensation for the damage to the right of credit the amount of €302,600 for the injuries suffered by her ex-husband.

Prior to this case, with a partial sentence of 5 July 2008, the same Court had declared the separation of the spouses, confirming a monthly maintenance allowance owed by the husband to the wife in the amount of €1,600. Thus, in the citation of the first degree of the case relating to the accident, the woman complained about the infringement of her credit rights, attaching which damage emerges the failure to receive the spousal maintenance allowance and the damage to the credit expectation towards the husband as a separated spouse due to his reduced earning capacity.

The judicial case

The Court of Rimini (sentence of 2/2/2017) jointly condemned the defendants to pay the plaintiff the sum of €79,600. The Court of Appeal of Bologna, however, completely rejected the woman’s request.

The Court of Appeal, adhering to the insurance theory, reversed the sentence by declaring that “the assumption according to which proof has been achieved that the damage for which the actress requested compensation arose from the original impoverishment of her husband’s assets, following the loss of income, is not acceptable” due to the lack of “proof of the inability of the assets of the victim of the accident to satisfy the divorce obligation”. The plaintiff’s burden of proof would have been, “in this perspective”, to demonstrate that she had previously consulted the main debtor, i.e. her ex-husband, and that she had not been able to satisfy the credit despite the compensation from the company”.

Therefore, the appeal judges did not trace the motivational reasoning to chance in itself, but of a lack of proof of the damage achieved through the accident because the actress would not have proven the damage to the credit right and that the accident itself led to the insufficiency of the ex-husband’s assets, a debtor with respect to the credit, and did not even prove that he had asked for the original direct credit.

The first Judge considered that the woman had proven her right to maintenance of €1600 per month for another three and a half years after the accident and maintenance of €800 for a further two years, i.e. until July 2015. The Territorial Court essentially declares that the quantification of the divorce allowance is regulated by article 5, sixth paragraph, l. 898/1970, of which it recalls the criteria, to then state that the actress had not provided proof with respect to said criteria.

The intervention of the Supreme Court

These complaints, however, are rejected by the Court of Cassation because they result in factual criticisms and in any case, the regulatory criteria for determining the allowance in favor of the spouse are precisely those that can be deduced from the Law 898/1970 (Civil Supreme Court, section III, 18/10/2024, n.27011).

Coming to the complaints made by the driver of the motorcycle, he acknowledges that the company’s appeal had “identical substantial content” to his. It is clear, then, that since Vittoria Assicurazioni’s appeal was accepted, this reason is of no interest.

In conclusion, the woman’s main appeal is rejected and the incidental appeal is absorbed.

Lawyer Emanuela Foligno

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