This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
The Hamburg Court of Appeal has expressly discarded an earlier obiter dictum, ruling that a representative action (ie, an authority to pursue the claim of another in one's own name) by an insurance agent (assekuradeur) on behalf of the insurer stops time only if the agent disclosed its authority and the name of the represented insurer when filing the action.(1) A later disclosure of the authority – which existed at the time of lodging the claim – in court has no retroactive effect and does not interrupt the limitation period.
The insured instructed Defendant 1 to collect a container of handbags from China at the Hamburg port and transport it to the insured. Defendant 1 passed the instructions on to Defendant 2. After taking possession of the container on 10 April 2013, the driver employed by Defendant 2 drove to a motorway rest area and spent the night in the truck's cab. On the morning of 11 April 2013, the driver noticed that the container had been opened and that at least 352 handbags were missing.
The claimant (the underwriting agent of the cargo transport insurers (assekuradeur)) filed a claim on 11 April 2014 and disclosed the representative action in his written pleadings dated 23 April 2015.
Representative actions are permitted only if the authority to do so is conferred by statute (eg, an insolvency practitioner representing an insolvent estate) or by way of contract, provided that the claimant can show a legal interest worthy of protection in pursuing the other party's right, which is usually the case if a judgment affects the claimant's legal or commercial position (the existence of this interest was not at issue in this case).
The appeal court dealt with the contractual representative action. Alternative to the representative action, the claimant claimed to be the assignee of the claims pursued and the court also dealt with the alleged assignment.
It was not until 23 April 2015 – which was shortly before the oral hearing and approximately one year after the claim had been filed – that the claimant:
- disclosed the name of the leading insurer together with the authority granted to him by the insurer to claim in a representative action; and
- submitted a list setting out all of the co-insurers.
This disclosure occurred after the limitation period had expired.
The defendant challenged the claimant's title to sue, disputing the claim on the merits, but not the claimant's procedural locus standi (a matter which the courts examine ex officio).
The Hamburg Regional Court dismissed the action on the grounds that it was time barred. Affirming this decision, the Hamburg Court of Appeal held that the claimant had the right to bring the case, as he had a valid authority to pursue a claim in a representative action from the leading insurer which, in turn, could also act for the co-insurers by virtue of the agreed follow-the-leader clause. As the insurance agent, the claimant had also shown that his own commercial interest was sufficient for a representative action. However, notwithstanding the existence of the authority from the insurers at the time of the commencement of the action, the appeal court held that the claimant's failure to disclose the names of the insurer when commencing the litigation meant that the representative action had been procedurally invalid before the limitation period had expired. Disclosing the authority from the insurers and their names thereafter did not stop time retroactively. Accordingly, the claim was dismissed ad limine without ruling on the merits.
With regard to the assignment of rights that the claimant claimed in the alternative to the representative action, the court held that the claims had not been validly assigned to the claimant by the insurers before the claim became time barred – neither expressly nor by conduct by sending the claim documents to the agent and asking him to take care of the recourse action.
The Hamburg Court of Appeal's decision is of great significance for practitioners for two reasons.
First, the court expressly discarded an earlier view, albeit obiter, that an insurance agent need not name the insurer in order to validly claim in a representative action and that defendants could be expected to enquire about the insurer behind the underwriting agent claiming in a representative action.(2) Those relying on an obiter dictum must now carefully observe their disclosure obligations regarding the authority and identity of the insurers on whose behalf they commence proceedings.
Second, the court expressly stated that it does not share the views expressed by leading German legal academics that later disclosure of an authority in a representative action which existed at the beginning of the litigation has a retroactive effect.
Accordingly, if an insurance agent claims in their own name based on the rights vested in the insurer, they must disclose the representative action in the claim form by setting out and proving the authority and the name of the insurer whose rights are claimed. A later disclosure will have no retroactive effect; therefore, time bars are not interrupted by the claim before the proper disclosure.
This does not apply if the claims are validly assigned to the agent, as in such cases the agent claims their own (assigned) right. Under German law, potential recourse claims are generally assigned to the insurer in the amount of the sums paid to the assured under the policy. Accordingly, the insurer can claim in its own name or further assign the rights to the agent to claim in its own name. This German insurance law concept of assignment is different from the English law concept of subrogation, under which an insurer is entitled to claim only in the name of the assured because the recourse claim remains vested in the insured.
In the view of the different options and requirements under German law, when it comes to claims by insurance agents, it is important to clearly distinguish between an assignment under German law, a subrogation under English law and a representative action and ensure that the respective requirements are met. The Hamburg Court of Appeal's decision clearly sets out the requirements for representative recourse actions undertaken by insurance agents.