Legally speaking, it is a question of the effectiveness against the insured of a guarantee condition charged to the insured in the insurance contract.
The refusal of compensation for failure to have put in place security measures (in case of theft for example), is not automatic
Thus, by way of example, it was judged by the Court of Cassation in a judgment of 27 March 2001 (Civ I, 27 March 2001, appeal: 98-19481), that :
“Having regard to article L. 112-2 of the Insurance Code ;
Whereas in order to rule out the plea invoked by BC and A, which claimed that clause No. 49 of the insurance contract requiring it to have the registration number engraved on the windows of the insured vehicle had not been brought to its attention, the contested judgment holds that among the special clauses was clause No. 99, which refers to a special clause attached to the personal conditions of the contract, which was in the present case clause No. 49 and that that clause having been expressly referred to by the policy which he signed, it was the responsibility of the insured to request a copy in case, as he claims, the text of this clause was not attached to the policy ;
Whereas, however, where the insurer makes its guarantee subject to the realization by the insured of a particular condition, it must provide proof that it has brought that condition to the knowledge of the insured ; that in determining itself as it did, the Court of appeal has not given a legal basis for its decision in the light of the above-mentioned text (…) “.
It follows from this case, having given rise to the aforementioned judgment of the Court of Cassation of 27 March 2001, that it is not enough to mention a guarantee condition in the insurance policy (according to an abstract formula ” clause n°49 “) to make it effective against the insured. In this case, the insurer was ordered to guarantee the claim for failing to demonstrate that it handed over this “clause 49” to its insured. In this case, the insurer argued, in vain, that the insurance contract “referred” to clause No. 49 ” attached to personal conditions “.
The High court censures on the grounds that “the insurer must provide proof that it has brought this condition to the knowledge of the insured” and that it was not for the latter to request a copy of clause n°49, to which the policy merely referring.
In another very similar stop (Cass., 2nd ch. civil, 21 April 2005, n ° 653 FS-P + B; Bati Services v Maaf Appeal n°: 03-19697.), the supreme judges also used the adverb “precisely” to recall the principle that the insurer must prove that it has precisely informed the insured of the disputed clause and not simply refer to the title of that 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 it follows from these texts that when the insurer, on the occasion of the amendment of the original contract, makes its guarantee subject to the fulfilment of a condition, it must provide proof that it has brought that condition to the knowledge of the insured ;
Whereas, according to the judgment under appeal, on 16 January 1989 Bati services took out insurance from La Mutuelle insurance artisanale de France (la MAAF) intended, in particular, to guarantee the theft of a commercial vehicle and its professional contents ; whereas on 13 May 1998 the insurer drew up an amendment to the original contract, providing for an increase in the guaranteed capital under the commercial contents of the utility ; that having declared the theft of this vehicle and its contents, which occurred on August 17, 2000, the company Bati services encountered the refusal of the insurer to compensate this claim, opposed because of a guarantee restriction stipulated in the general conditions of the” Reference Car Contract ” of October 18, 1993 mentioned in the amendment of May 13, 1998 ;
that the company Bati services, considering that this restriction was not effective against it, assigned the MAAF as a guarantee ;
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 (….)