The question that often arises is : is a schedule not signed by the insured enforceable against the insured? Such an annex may include an exclusion or revocation clause. Is such a clause automatically enforceable against the insured?
The acceptance of the clause appearing on a separate document of the insurance contract is not presumed and therefore cannot be inferred from the alleged silence of the insured who has not challenged this clause.
Knowledge of an exclusion or guarantee clause is not presumed and must be proven by the insurer.
Thus, he was tried, in a judgment of the Court of Cassation of 27 May 2003 (Civ. I, 27 May 2003, appeal : 00-13401), – rendered in a case in which the company MACIF relied on an exclusion clause relating to thefts committed when the boat was entrusted to a professional for guarding, wintering, maintenance, repair or sale,- that the knowledge by the insured of the exclusion clause that MACIF opposed him was not presumed but, on the contrary, had to be proved by :
Whereas in order to accept the insurer’s exclusion of coverage and dismiss Mr. X… the contested judgment held that, at the time of subscription of the contract, the insured could assess the particular conditions only after having read the general conditions and thus been able to measure the extent of the proposed guarantee and that Mr X…, who had chosen to act against the company he had entrusted with guarding the boat, could only know these general conditions ;
Whereas, however, the Court of Appeal had found that Mr. X… had received from his insurer only the certificate of insurance of May 11, 1990, tab n ° 001 of June 8, 1990, the premium call of June 8, 1990, the premium calls of the years 1991 and 1992 and tab n° 001 of May 20, 1992 ; that by presuming knowledge of the general conditions by the insured, without drawing the legal consequences of its own findings from which it resulted that the insurer could not have brought to the insured the general conditions of the policy and, consequently, the exclusion clause at issue, the Court of appeal violated the abovementioned text ; ON THESE GROUNDS : BREAKS AND CANCELS the (…) »
The Court of Cassation keeps reminding us that nothing is presumed and that the insurer must establish proof that it has brought the clause “precisely” to the knowledge of the insured.
SILENCE OF THE INSURE DOES NOT CONSTITUTE ACCEPTANCE
The judges on the merits may not deduce from the silence or the absence of a challenge of the insured before this amendment any acceptance of this guarantee restriction, even if this silence has lasted more than 10 years.
Civ. II, 17 March 2011, n°10-16553):
In this case, the Versailles judges retained the argument of the insurer MAAF, which consisted in saying that the insured’s silence or absence of challenge for more than 10 years before a contractual amendment could only mean that he accepted the new conditions of guarantee to which MAAF subordinated his coverage, despite the fact that MAAF produced in the debates 18 insurance certificates after the alleged amendment and which mentioned all the restrictions of guarantee that he opposed to his insured.
The Court of Cassation, after recalling the content of article L. 112-3 of the insurance code (” if the insurance contract constitutes a perfect consensual contract as soon as the wishes of the insurer and the insured meet, its proof is subject to the drafting of a written document “) censured the judges of the merits for having rejected the guarantee of MAAF while they found in their judgment ” that the insured had not signed any amendment the insurer “.
The knowledge of an exclusion clause or a guarantee clause is never presumed and must be formally and unequivocally proven by the insurer.
The case law also considers that it is not for the insured to ask his insurer for communication of the document allegedly attached to the insurance policy which stipulates a condition of guarantee clause.
Civ. I, 27 March 2001, appeal: 98-19481
The high magistrates held that it was for the insurer to establish proof of the transmission to the insured of a condition of guarantee without the latter having to demand from him the document containing this clause.
“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 (…) “.
Civ. II, November 24, 2011: “the insured’s knowledge of the guarantee limitation clause and its acceptance cannot be deducted from the payments of contributions made according to the amounts indicated by the broker”.