Article L. 131-1 paragraph 2 of the Insurance Code states :
“the insurer is not liable for losses and damages resulting from an intentional or fraudulent fault of the insured “.
This is a legal exclusion and therefore the existence of an intentional fault of the insured entails the absence of insurance coverage.
Intentional fault is enforceable against third parties to the contract.
The insurance contract is a random contract. The risk that the insurer bears should not depend on the will of the insured, which is very logical.
Intentional misconduct (or intentional misconduct) is a public policy exclusion that will apply in any event even in the absence of any contractual stipulation.
In the insurance of things, intentional fault is the intentional damage caused by the insured (arson or simulated theft). In this case, the insured has the will to “create the claim” and therefore to harm the insurer by causing it voluntarily and knowingly. In other words, the insured puts the insurer’s guarantee at stake.
In civil liability insurance, intentional fault is assessed in relation to the victim : the insured must have intended to cause him the damage to the victim as it occurred.
Thus, the second and third civil chambers of the Court of Cassation rejected the insurers of their argument based on the exclusion of voluntary intentional misconduct and depriving the insurance contract of its random nature (Cass. 2nd civ., 1 July. 2010 No. 09-10. 590; Cass. 3rd civ., 2 March 2011, No. 09-72. 744; Cass. 2nd civ., 16 June 2011, No. 10-21.474).
The insurer must demonstrate the bad faith or deception of its insured, criteria for holding against the insured the will to create the damage (Cass. 2nd civ. 30 June 2011 no 10-23.004, Bull. civ. II, No. 145; Cass. 3rd civ., 2 March 2011, No. 09-72. 744).
Even more recently, it was recalled in 2017 (Cass. 2nd civ., 12 Jan. 2017, No. 16-10. 042) that the unacceptable negligence of an insured committed with the mere knowledge that it posed a risk to his client is not sufficient to establish the intentional or fraudulent nature of his failure.
It was also held that the insurer could not refuse its guarantee on the basis of the intentional fault of its insured on the grounds that the latter was the subject of a simple indictment for intentional offenses, and this, in the absence of any definitive conviction (Cass. 2nd civ., 22 Oct. 2015, no 14-25.494, Bull. civ. II, No. 237).