February 18, 2021 – A trip does not have to be canceled at the first sign of possible hindrance in order to be entitled to a full reimbursement of cancellation costs by a travel cancellation insurance company. This was decided by the Bergisch-Gladbach District Court with its judgment of October 5, 2020 (66 C 95/20).
The plaintiff had booked a river cruise for himself and his wife. The trip should start on September 15, 2018. On the day of booking, he took out travel cancellation insurance. Their conditions stipulated that a trip had to be canceled immediately in the event of an insured event in order to be entitled to benefits.
Bicycle accident before the river cruise
At the end of July 2018, the wife suffered a bicycle accident. If she fell, her head was protected by a helmet and hit a concrete wall. Because she initially had no symptoms, she decided not to have a medical examination.
Later, when she became dizzy, she went to a clinic on August 15, 2018. It was found there that she hit her head in the impact despite the bicycle helmet chronic subdural hematoma had suffered. It is typical for this injury that it does not manifest itself immediately after a trauma, but rather several weeks later.
The injured woman was discharged from the hospital three days after the treatment. She was assured that she would be able to embark on the planned river cruise.
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Late cancellation?
However, at a check-up, which was carried out almost a month later, it turned out that the hematoma had enlarged, contrary to expectations, and portions of fresh blood were visible.
The victim therefore had to undergo an operation. Her husband took this as an opportunity to cancel the trip immediately and to inform his travel cancellation insurance company by presenting a medical certificate.
However, he only wanted to contribute to the cancellation costs of just under 3,600 euros with an amount of 840 euros. He justified this with the fact that the cancellation was made too late. The trip cancellation should have taken place on the day of the accident, but at the latest on the occasion of the first stay in the clinic. Because then the cancellation costs would have been significantly lower.
The case eventually ended up in court. There the insurer suffered a defeat.
Substantial discretion
According to the judges, the vacationer had immediately canceled the trip in accordance with the insurance conditions. Because the forecast risk is part of the secured damage scenario of a travel cancellation insurance.
Often the healing process and the healing speed can only be predicted with certain probabilities for the future and cannot be conclusively determined.
In such a situation, an insured person therefore has a considerable margin of discretion. As a result, he cannot be accused of breaching his contractual obligations if he does not cancel a trip at the first sign of the possibility of an insured event.
Insurer is obliged to perform
Because if the plaintiff had acted accordingly in the case decided without the risk of illness having materialized, his insurer could legitimately have refused to pay, referring to the missing claim.
The man therefore only had to cancel the trip when it was sufficiently likely that it could not be started. However, he did so at the moment when, a good six weeks after the accident, the necessity of an operation suddenly emerged. The insurer is therefore fully obliged to perform.
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