On May 6, 2016 it was published the long-awaited judgment of the Joint Divisions of the Supreme Court on the issue of the validity and enforceability of the claims made clause.
The Court has established the following principle of law (in line with certain previous judgments of the same Supreme Court):
"In the civil liability insurance contract clauses which makes the operation of insurance coverage subject to the condition that both the wrongful action and the claim have to occur and made respectively within the policy period, or at least within the specific period of time indicated in the contract...is not unfair. Under certain conditions, however, it may be held null and void in the absence of interests worthy of protection or ...in case of consumers, because it determines a significant imbalance in the rights and obligations under the contract ... ".
In the grounds of the judgment, the Judges established the following additional principles of law, which certainly appear reassuring for the market players.
Claim made clauses are not in contrast with Article 2965 of the Civil Code, which provides that covenants that make it excessively difficult for a party to exercise the right under the contract are null and void.
Any violation of the provisions of the Civil Code in the matter of good faith in the execution of the contract may never result in the nullity of contractual covenants (including claims made clauses). Such violation may only give rise to liability for damages.
The claim made insurance policies do not breach Article 1895 of the Civil Code (which provides for the nullity of the insurance contracts covering risks that have already occurred prior to their conclusion) as, in the insurance of civil liability, "the risk of the insured's assets aggression ... is realized gradually, because it is not confined only to the wrongful action ... but the claim of the third damaged party is needed". For this reason, the claim made clause is lawful as it " does not prejudice the existence of the risk that [in consideration of a wrongful action] the other elements which may affect the third damage party -insured's asset occur ".
The claims made clause is not unfair (pursuant to article 1341 of the Civil Code) as it does not limit the liability of the insurer but define the insuring grant.
The "shadows" of the judgment may instead be identified in some passages of the decision in which the Court, starting from the acknowledgement of the duty for any professional to take out an insurance policy covering his/her professional negligence (as a result of the various legislative measures succeeded from 2011 to 2014), state that "the judgment of suitability of the policy is unlikely to be positive in the presence of a claim made clause, which, however articulated, exposes the insured to holes in the coverage ...".
The Court then adds that this aspect shall be taken into account "in the preparation of the presidential decree called to establish, for health care professionals, the minimum requirements of their insurance coverage".