Conclusion: Recent Legislative and Judicial Developments in Continental Europe Affecting the Casualty Insurance Industry, Fall 2011
A broad diversity of topics is investigated in our latest update:
- The reports from Austria and Germany highlight liability insurers’ need for awareness of how their defense strategy on behalf of an insured respondent will influence the right of access of third parties to the liability coverage.
- New legal procedures in Italy that require plaintiffs and defendants to engage in mediated settlements will also require liability insurers to reassess defense costs and strategy.
- In Spain and Sweden, recent jurisprudence is extending the duty of care for auditors.
- A recent ruling by the Swedish Supreme Court stated that the cost of repairing a road bridge damaged in a road tanker accident should be borne by the motor liability insurer rather than the Swedish National Road Administration. The ruling highlights how the state is now looking to transfer more of its cost burden to the private insurance sector.
- For Norway, we present insight into the Product Liability Act.
- For Poland, we learn of how recent directors and officers (D&O) liability cases are emphasizing the importance of entity coverage.
- In Switzerland, jurisprudence is helping insurers to control fraudulent third party bodily injury claims.
- From our Belgian contributors, with their proximity to European Union (EU) legislators, we have a detailed insight into the scope of activity of the new insurance supervisory body, EIOPA, which has replaced CEIOPS. We learn how insurers will be able to exert greater influence over the shape of future supervision of the sector.
- From our French contributors, we have a detailed analysis of the Servier Laboratories’ “Mediator” pharmaceutical product liability series loss, with an assessment of not only the cause and spread of liability, but also its impact on the way mass tort claims will be handled in France in the future.
- Our Dutch legal experts highlight the importance of the February 2011 EU public consultation on Collective Redress. They remind us of how legislation in the form of the WCAM (Dutch Class Action Act) has been in place since 2005 in the Netherlands to facilitate class actions and simplify indemnification levels, offering a blueprint for other European jurisdictions.
Perhaps the most interesting theme to emerge from these reports is the developing role of the state as claimant. This is evidenced both by the Swedish Supreme Court decision to allow the state to seek recourse against the private insurance sector for damage to state property caused by a motor accident, and by the introduction in France, on September 1, 2011, of a state compensation fund for victims of “Mediator.” The fund will provide a form of class action settlement, and the costs will then be recovered through subrogation by the state against the manufacturer and its product liability insurers. At a time when almost all European governments are feeling financial strain, this trend may be expected to increase.