Legal Expert Explains Eligibility for BU Benefits Without Reporting Headache: Higher Regional Court Schleswig Decision

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The case

In the case before the Higher Regional Court of Schleswig, the policyholder submitted claims against her supplementary work disability insurance due to work disability.

At the Work disability insurance determination In 2014, the aim was to answer questions regarding the treatment of illnesses and the use of medication within the last five years. The policymaker answered such questions with “no”. However, as she told her insurer, she was unable to work due to headaches, nausea and dizziness as a result of a bus accident in 2010 and was also suffering from back problems.

The insurance company looked into it breached the duty to report and announced that he had been withdrawn from BU insurance as part of the performance review. The policyholder took legal action against this before the Kiel Regional Court. This dismissed the lawsuit as a result of breaching the obligation to report on headlines (LG Kiel, judgment of May 17, 2022 – file number: 5 O 113/21).

The policyholder appealed against the judgment of the first case to the Higher Regional Court of Schleswig. The policyholder argued that the insurer’s withdrawal was ineffective and that the contract still existed.

The judgment

The Higher Regional Court of Schleswig saw no breach of the obligation to report a headache, so that there was no basis for the insurer’s withdrawal. It is the duty of the policyholder to state if the insurer has inquired about the relevant conditions in text form. Individual questions can be understood to varying degrees.

In this case, the policyholder was specifically asked about headaches that lasted more than five hours a day and occurred more often than twice a week. In particular, due to a note in the application form that the examples do not completely regulate the terms of the illness, this question also applies to another important headache.

Although the headaches caused by the accident were not short-lived, they had completely subsided by the end of 2010. The Higher Regional Court of Schleswig indicates that in such doubtful cases a as to the severity of the headache, only the obvious needs to be said. However, the Higher Regional Court of Schleswig did not have to make a detailed decision about the definition of the specific question and the scope of the obligation to report.

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No major omission

In any case, the Higher Regional Court of Schleswig considered that the insurer’s withdrawal was unfounded because at least the policyholder could not be accused of gross negligence. Gross negligence occurs when the necessary care is neglected to an unusually high degree, ie when it should be obvious to everyone that there has been a breach of the duty to provide information.

The Higher Regional Court of Schleswig says that the policyholder realized that the headache as a result of her accident was not covered by the question mentioned in the claim form. Her headache was limited to a one-time period after the bus accident and was completely healed at the time of the contract. This means that there is no particularly obvious breach of duty, ie a misjudgment on the part of the policyholder regarding the importance of a headache.

Trust the insurance broker’s assessment

Furthermore, the policyholder disclosed the headache to her insurer and rightly trusted his assessment. The policyholder cannot be blamed for the insurance broker. The insurance broker only helps with contract negotiation and mediation. The policyholder signed the contract herself and therefore made her own declaration.

Furthermore, the Schleswig Higher Regional Court found that the insurer had no right of withdrawal here because the insurer would have terminated the contract even if it had known the circumstances which has not been published. According to his own statements, the insurer agreed to a risk premium of 25 percent for the contract because of persistent headaches and the exclusion of benefits for spinal diseases. Therefore the contract would simply be terminated under different conditions.

That’s what the expert thinks

The decision of the Higher Regional Court of Schleswig shows that questions of appeal can be understood in different ways. Ultimately, however, the assessment of the duty to report depends on the circumstances of the individual case, more specifically on the specific design of the application form and the understanding of the policy owner. Another higher regional court, namely the Higher Regional Court of Dresden, recently made a similar decision regarding an undisclosed neurological disease and ruled in favor of the policyholder.

About the author:

A lawyer Björn Thorben M. Jöhnke a partner of Law firm Jöhnke & Reichow Rechtsanwälte and since 2017, a specialist lawyer for insurance law.