Causaliteit in het verzekeringsrecht
The purpose of this dissertation is exploring the role of cause and causation in insurance law (indemnity). Cause and causatiom appear to play a central role in the system of coverage in insurance policies. Coverage and exceptions are formulated in causal wordings. That makes causation in insurance law different from causation in tort law and penal law. Whether or not circumstances are covered or excepted from coverage in insurance policies is a matter of construction of the policies. Despite this notion most insurance law literature has been influenced by socalled theories about causality in tort and penal law (conditio sine qua non, theory of adequacy and reasonable imputation). This dissertation consists of three parts. The first part deals with the meaning of ‘cause’ in the context of insurance policies. This term is, in a rather complex way, connected with several other terms which are, at least in part, typical for insurance law. The term ‘cause’ is compared with the terms ‘uncertain event’ (uncertainty), event, fortuitous event, inherent vice and wear and tear, damage and loss, accident, peril of the sea. There is a tendency to equalize uncertain event and cause. In my opinion these terms must be distinguished. Essential is the definition of ‘cause’ in insurance law, which is derived from a definition given to that term in tort law. Cause is a specific circumstance which differs from the normal course of events/things. This definition is useful because now circumstances which are relevant in a ‘causal’ sense can be separated from circumstances which are not relevant in this way. The second part deals with ‘causation’ as opposed to ‘cause’. To ascertain whether or not there is coverage, it is necessary to make a choice among various causes (covered and excepted) within the meaning of Part I. In case (one of the) parties put(s) forward a certain circumstance as the relevant (proximate) cause but the circumstance is not self-evident the court may put the burden of proof on one of the parties. This burden of proof can be decisive for the judgement. In other cases where several possible causes are known, the judge has to choose. According to Dutch insurance law the interpretation of the contract is decisive for the outcome of this choice. Furthermore several theories of causation are explored. Part three contains the subject ‘obligations of the insured’ (Obliegenheiten according to German law). May the insurer deny indemnification when non fulfillment of the obligations by the insured as stipulated in statute or contract does not have a causal relationship with the loss? Important case law is restricted to two subjects: non-disclosure/misrepresentation and alteration (aggravation) of the risk under the policy/warranties. In two chapters these subjects are described.
|Sponsor||Wansink, Prof. Mr. J.H. (promotor)|
Blom, A.. (2006, October 5). Causaliteit in het verzekeringsrecht. Retrieved from http://hdl.handle.net/1765/8019