Recent case law of the court of Cassation on the Insurance Act of 2014: 2025 in overview

Subrogation in the rights of the injured party| Limitation period| Duty to state reasons

The injured party has, pursuant to Article 150 of the Insurance Act 2014 (IA), a direct right of action against the insurer.

This right is time-barred after five years, calculated from the loss-causing event or, where a criminal offence is involved, from the day on which it was committed (Article 88, § 2 IA). However, if the injured party proves that he only became aware of his right against the insurer at a later date, the period only begins to run from that date. The period shall in any event expire after ten years, calculated from the loss-causing event or, where a criminal offence is involved, from the day on which it was committed.

Mr C. fell on 13 January 2010 due to ice in front of the commercial premises of C. NV. His health insurer forwarded expense statements to the liability insurer of C. NV from June 2010 onwards. On 28 October 2013, Mr C. issued proceedings against both C. NV and the municipality. The police court held C. NV liable by judgment of 7 July 2014. On appeal, the court of first instance reversed this judgment on 1 June 2015 and held the municipality solely liable. The health insurer subsequently approached the municipality for the first time on 4 September 2015 for reimbursement of its expenses. On 14 February 2018, the health insurer and E. NV, the liability insurer of the municipality, appeared voluntarily before the police court. By judgment of 9 January 2019, E. NV was ordered to make reimbursement. On appeal, the court of first instance confirmed this decision by judgment of 24 August 2020 (corrected on 3 September 2020). E. NV lodged an appeal in cassation.

The appeal court held that the health insurer (respondent in cassation) could not have been aware from the time of the loss-causing event that the liability of the municipality for its insured's fall would be at issue, and that it only reasonably became aware of this at the time of the summons on 28 October 2013.

In its judgment of 31 January 2025, the Court of Cassation quashed this reasoning of the appeal court, holding that a court which makes the commencement of the limitation period dependent on the moment at which the mutual health fund became aware of its direct claim against the municipality, without examining when that knowledge arose in the insured himself, fails in its duty to state reasons. By omitting this essential finding, the Court is prevented from exercising effective review of legality.

The Court thereby confirms that subrogation in the rights of the injured party has the consequence that the subrogated party exercises the claim of the injured party with all its characteristics and appurtenances, including therefore the moment of commencement of the limitation period.

Uncertain event | Causal connection | Equivalence theory | Property insurance

The facts of this case concern a lorry driver who drove over a steel plate placed on the ground at roadworks. This plate flipped up and punctured the oil sump, causing oil to leak. Despite warning lights on the dashboard, the driver continued for more than two kilometres before the lorry was forced to stop.

An "Indemnity insurance" is an insurance under which the insurance benefit depends on an uncertain event causing damage to a person's assets (Article 5.15° IA).

After the Court of Cassation had already held in its judgment of 12 May 2022 that the duty to mitigate loss applies only to the insured entitled to compensation, and not also to the auxiliary-agent (driver), the claim for compensation for engine damage was dismissed by the court of first instance of East Flanders, sitting as appeal court. The court held that the engine damage was not caused by the accident (driving over the plate), but solely by the fact that the driver continued to drive the lorry. The appeal judges further held that the insurance in question was a property insurance which, unlike liability insurance, does not entail application of the equivalence theory in the relationship between insurer and policyholder. The appeal judges thus excluded the causal connection between the insured risk and the insured loss in principle, without actually examining whether the damage would or would not also have occurred without the accident as it occurred in concreto (conditio sine qua non - test).

The Court held that the appeal judges erred in law with the above reasoning. The application of the equivalence theory, which means that where there are multiple possible causes, it must be examined what share each potential cause separately has in the damage, cannot, in the absence of a statutory or specific contractual provision, be excluded solely by the fact that the insurance in question is a property insurance.

Fraud | Right of recourse | Limitation period

Article 88, §3 IA provides that: "the insurer's right of recourse against the insured is time-barred after three years, calculated from the day of payment by the insurer, unless in the case of fraud."

The case concerned a motor vehicle accident that occurred in 2016, caused by the son of the managing director of the insured company. A friend of the son was also injured in this accident. Immediately after the accident, the son stated that he only used the vehicle exceptionally and that it was therefore mainly used by his mother, the managing director. Later, in 2017, he stated to a private detective of the insurer that he was the habitual user of the vehicle. The insurer first paid compensation to the friend in 2018 but only issued proceedings against the insured in 2021, claiming that the claimant had intentionally concealed that J.O. was the habitual driver and had thereby committed fraud. The insured argued that the claim was time-barred since the fraud had already been discovered in 2017 and this was the cause for the recourse.

The appeal court held on the merits that the aforementioned statutory provision is logical, since the insurer can only bring a recourse action after it has itself paid the sums to the injured party, and that this provision cannot in any way be interpreted such that the policyholder who commits fraud would be released from its repayment obligation earlier than one who does not commit fraud. With this judgment, the Court of Cassation confirms the reading of the appeal court in the contested judgment.

The term 'fraud' in this context refers specifically to deceptive conduct relating to facts which may give the insurer grounds to bring a recourse action. It therefore does not encompass the situation where fraud within the insurance contract itself, such as intentional concealment when taking out the policy, forms the ground for the recourse action.

The statutory exception is not intended to protect the fraudulent insured by potentially causing the limitation period to commence earlier. Even if the insurer already has knowledge of the fraud prior to payment, the limitation period only commences at the time of actual payment.

Only where the fraud comes to light after payment does the period begin to run from the moment of discovery.

Loss event | Life insurance | Limitation period

Pursuant to Article 89, §3 IA, where the loss event has been notified in time, limitation is suspended until the moment at which the insurer has given written notice of its decision to the other party.

The underlying claim in this case was brought by the heirs of an insured, in which the life insurer was held liable for alleged errors made in the performance of a contractual relationship. The life insurer argued that the suspension as provided for in the above article could not apply, since the contractual breach does not constitute a loss event in the context of a life insurance. It argued that death alone is the insured risk and therefore the subject matter of the policy.

The Court rejected this argument and specified that the concept of 'loss event' within the meaning of the above article must be interpreted as referring to any event giving rise to a claim on the insurer's assets. In the case of a claim based on contractual liability, the insurer's contractual breach therefore constitutes the loss event.

Notification | Agency | Limitation period

Article 89, §5 IA provides that limitation of the direct action (Article 88, § 2) is suspended as soon as the insurer becomes aware of the injured party's intention to obtain compensation for the damage suffered by him. The suspension ends at the moment the insurer gives written notice to the injured party of its decision to compensate or of its refusal.

In the underlying case giving rise to the cassation judgment, a situation arose where a bank/insurer, acting as legal expenses insurer, conducted correspondence on behalf of its insured. That legal expenses insurer had on 28 June 2012 requested the intervention of the indemnity insurer and payment of the claim to the account number of the legal expenses insurer. The indemnity insurer in turn communicated its refusal in writing to the legal expenses insurer on 12 November 2012.

The insured argued that the mere fact that the bank/insurer acted as legal expenses insurer constitutes at most representation in the context of another type of policy, but not an agency to receive the aforementioned notification of the insurer's decision, and that such agency cannot arise tacitly either. Therefore, according to the claimant/insured, the suspension as provided for in Article 89, §5 IA never ceased, since the refusal decision was not communicated directly to the injured party personally, nor to his agent.

In this judgment, the Court confirms the reasoning of the appeal court, which proceeds from the premise that an effective and express mandate to act on behalf of the insured can be inferred from a letter in which a legal expenses insurer requests payment to its account. Where such insurer can validly receive payment in discharge of the debt, it is also deemed to be authorised to receive notifications which cause the limitation period to run.

The limitation period therefore expired on 12 November 2017 and thus the summons of 10 May 2021 was well out of time, with the consequence that the claim must be declared inadmissible.

Co-ownership | Payment of premium

In a recent judgment, the Court of Cassation has resolved an important question for separating couples: where one spouse continues to insure immovable property held in co-ownership, must the other contribute to the premiums?

J.C. and A.D. married in 2003 and purchased immovable property together. After filing a petition for divorce in 2012, the husband continued to pay the fire insurance premiums for their joint home. Years later, he claimed reimbursement of half of the costs. The wife refused, arguing that she had not signed the subsequent insurance contracts.

The Court of Cassation applied Article 5, 17°, a) IA and established a crucial rule: where a co-owner takes out fire insurance with premiums calculated on the total value of the immovable property (and not only on his share), he is deemed to act on behalf of all co-owners. This means that all co-owners are "insureds" and must share the costs equally.

The Court held that, since the husband initially paid premiums for a policy to which both spouses had subscribed, continued to pay equivalent premiums under new policies, and insured the full value of the immovable property (and not only his half), he clearly acted on behalf of both co-owners. The wife was consequently obliged to reimburse half of the premiums.

This judgment provides clarity for divorcing spouses and co-owners. Insurance covering immovable property held in co-ownership benefits all owners, and the premium costs must be shared proportionally. Personal insurance such as family civil liability insurance, however, remains solely at the expense of the policyholder. The decision confirms that co-ownership of immovable property entails ongoing financial obligations, even after the relationship has ended.
 

Notice of default | Calculation of the period of a notice of default | Unambiguous and clear language

The Court of Cassation has clarified what insurers must state when warning policyholders of unpaid premiums, thereby providing clear guidance on Article 70 IA.

V.N. contested a notice of default from AXA Belgium demanding payment "within 15 days, more specifically before 16 January at 00:00." He argued that the notice of default did not properly inform him of the starting point of the 15-day period, nor of the consequences of non-payment. The insurer's notice of default stated that non-payment would lead to suspension of "the cover under your contract" from 16 January 2020.

Article 70 IA requires that notices of default remind the policyholder of the premium due date, the amount owed, the consequences of non-payment and the starting point of the period. The law also requires clarity as to the fact that the suspension or termination takes effect from the day after the expiry of the period.

The Court established two important principles. First, as regards the period, it suffices that the notice of default makes the starting point of the period known to the policyholder. It is not necessary to expressly state the exact starting date if the policyholder can calculate it on the basis of the information provided. The Court held that the statement of a period "before 16 January" in a notice of default with a period of 15 days made clear that the period commenced on 1 January.

Second, as regards the consequences, the law does not prescribe exact wording. It suffices that the consequences are indicated in a manner enabling the policyholder to understand them. The wording "suspend the cover under your contract" left no room for doubt as to what would happen. There is no requirement to explain the precise content or legal implications in technical detail.

The Court dismissed the appeal in cassation and confirmed that insurers have flexibility in drafting notices of default, provided the essential information is clear and comprehensible. What matters is whether the policyholder can understand what will happen and when, not whether specific legal formulations are used. This pragmatic approach, whereby substance prevails over form, balances the insurer's need for practical flexibility with the policyholder's right to clear information about the consequences of non-payment.