The French Supreme Court, in a decision dated 4 February 2016, upheld an appellate decision which found that an insurer wishing to deny cover by invoking the deliberate wrongdoing of the insured must prove that the insured wilfully breached its obligations.
The decision is interesting as it implies that an insured which acts deliberately in breach of its obligations will not be covered. The French Supreme Court had previously only allowed an insurer to deny cover if it proved not only a wilful breach of its obligations by the insured, but also a clear intention to cause the damage. As a result, a loss resulting from conscious and voluntary misbehaviour of an insured could nonetheless be covered in the absence of intent to cause the inflicted loss. In particular, this meant that professionals who deliberately violate their obligations, not specifically to harm their client, but only to save time or money, could be covered by their liability insurer.
In 2013 and 2014, a few decisions from the Supreme Court suggested a willingness to deprive an insured of cover in cases where it deliberately acted illicitly, with knowledge that this would lead to a loss, even though the primary intention was not to cause the loss itself. However, the Supreme Court had since remained silent on the subject, and it had been speculated that the Court did not wish to confirm this more recent case law.
The decision rendered on 4 February 2016 suggests that the Court has no intention once again to reverse its position. However, since the decision will not be published in the Court’s Bulletin, its authority may be questioned. A leading case is therefore still awaited.