Proof of acceptance is the responsibility of the insurer.
(Cass., 2nd ch. civil, 21 April 2005, n ° 653 FS-P + B; Bati Services v Maaf Appeal n°: 03-19697.)
The Court of Cassation once again used the adverb “precisely” to recall the principle according to which the insurer must prove that it has precisely brought to the attention of the insured the disputed clause and not merely to refer to the title of this clause in its insurance policy :
“On the single way :
Having regard to articles L. 112-2, paragraph 2, and L. 112-3, paragraph 5, of the Insurance Code; (…)
Whereas, in order to decide that the contested provision was enforceable against the company Bati services and to dismiss its claims, the judgment holds that the insured party signed on 13 May 1998 an amendment increasing the amount of the professional content theft guarantee, the specific conditions of which expressly referred to the general conditions referred to on 18 October 1993 providing for the exclusion of coverage in the event of non-compliance with certain ; that the formalism referred to in it is required only on a probative basis when the existence of the contract itself is disputed ; that in the present case the parties do not disagree that the amendment was signed on 13 May 1998 and did indeed include an extension of guarantees ; that the insured’s signed change of risk statement and the insurer’s personalized insurance form giving effect to this change were issued on the same day and that the latter document determining the special conditions refers to a contract of which the subscriber acknowledges having received a copy, there is no evidence that this was not the case. ;
That in ruling thus, while it follows from the productions that the company Bati services had not affixed its signature at the bottom of the amendment mentioning that it had received a copy of the insurance contract referenced as of October 18, 1993, the court of appeal violated the aforementioned texts ; FOR THESE REASONS : BREAKS AND ANNULS, in all its provisions, the judgment rendered on August 5, 2003, between the parties, by the court of appeal of Riom (….)
The document on the basis of which MAAF denied coverage was only “covered” by the insurer in an endorsement, without MAAF establishing proof that the document was accepted by its insured.
In that case, on 16 January 1989, Bati Services took out insurance from MAAF to guarantee the theft of a commercial vehicle and its professional contents. On 13 May 1998, the insurer drew up an amendment providing for an increase in the guaranteed capital for the contents of the vehicle and referring to the insurance contract of 18 October 1993. On August 17, 2000, Bati Services declared the vehicle stolen and was denied compensation by the MAAF. MAAF opposes to its insured a guarantee restriction stipulated in the general conditions of a Car contract Reference of October 18, 1993 mentioned in the amendment of May 13, 1998. Bati Services considers that this restriction is not effective against it and assigns MAAF in compensation for its claim.
The court of appeal of Riom decided that the clause was enforceable and denied the insured her claim since the amendment established by MAAF mentioned ” the guarantee restriction stipulated in the general conditions of the “Reference Car Contract” of October 18, 1993 “. The stop is broken on appeal of the insured.