- The assistance of a technical expert is often crucial for insurers when investigating a claim. Such expert documents are usually not shared with the insured and/or beneficiary under the policy. Indeed, the reports may contain findings or interpretations that are detrimental to the coverage position the insurer wishes to take with regard to the insured and/or beneficiary. Insurers therefore regularly take the position that the documents prepared by their appointed expert are confidential. This position has been challenged by recent case law.
- In a recent case before the Antwerp Enterprise Court, Tongeren division, a tenant sought to recover directly from his landlord’s fire insurer damages suffered as a result of a fire. The tenant argued that the insurer owed coverage under the fire insurance contract, although he himself had no knowledge of the policy in question. Subordinately, the tenant demanded the production of pertinent documents to further assess the dispute. According to the tenant, the pertinent documents were the insurance policy and the reports of the appointed fire expert.
The fire insurer opposed the production of these documents on the grounds of their confidentiality. However, in its judgment of 6 March 2024, the court rejected this argument.
Regarding the production of the insurance policy, the court referred to Article 78 of the Law of 4 April 2014 on insurance. Based on this article, any beneficiary entitled to insurance cover for valuable consideration has the right to obtain disclosure from the policyholder or the insurer of the terms of the cover. In addition, the court held that the production of the insurance policy was necessary to ascertain with certainty the coverage under the policy. Consequently, the fire insurer was required to produce the general and special insurance terms and conditions.
The decision to impose production of the policy should come as little surprise, given its specific legal basis. However, there is no similar legal provision for the submission of the appointed expert’s documents.
Nevertheless, the court ordered the insurer to also produce the fire expert’s reports, photographs and all other documents containing findings on the cause of the fire. In addition, the insurer had to produce correspondence undertaken with its fire expert on a particular point of damage.
The court ruled that these documents were crucial to judging the dispute, invoking the duty to cooperate under Article 8.4 of the Civil Code, which is the codification of established case law that each party is obliged to cooperate in the gathering of evidence. The court expressly rejected the confidentiality of the expert documents.
- Policyholders and beneficiaries will be able to rely on Article 8.4 of the Civil Code and this judgment of 6 March 2024 to request access to documents related to the investigation of the claim. If a party can make a plausible case that certain documents are relevant to the assessment of the dispute, the door to production under Article 8.4 of the Civil Code would seem to be open.
The impact of the judgment on insurers is not insignificant. After all, the duty to cooperate in Article 8.4 of the Civil Code also applies in an extrajudicial context, i.e. insurers are in principle obliged to produce such documents at the request of the insured or beneficiary, even without a court order. Moreover, we believe that the scope of this case law is not limited to fire policies – these principles can be applied to all types of policy.
- A clear warning to insurers is thus appropriate: there is an increasingly real possibility that internal reporting by the expert will have to be shared with the insured and/or beneficiary under the policy. It is then a question of whether the insurance expert can and/or should still report objectively and fully, or whether some censorship of the expert documents is not desirable with a view to securing the insurer’s coverage position.
CMS’s insurance team is monitoring further developments and is available for further clarification, questions or assistance.
