BLD Bach Langheid Dallmayr - Litigation and Dispute Resolution_en

Property Insurance:

Litigation and Dispute Resolution

 

Our litigating people handle property claims in all areas of consumer, commercial and industrial insurance.

German Courts

 

Starting litigation in Germany is no different from other jurisdictions. One party takes the initiative by submitting a statement of claim to the appropriate court. The statement of claim is then served to the defendant party or their last assigned lawyer.

 

From there German civil procedure becomes quite different from other jurisdictions for two reasons:

  1. The majority of the work is done through written arguments (replies, rejoinders, etc.), so the trial itself will not bear too many surprises;
  2. from first day onward the procedure is closely overseen by a judge.

Upon service of the complaint, the defendant is required to notify the court whether he or she is going to wage a defence against the claim and then submit a statement of defence, including the forwarding of all the evidence that the defendant considers to be favourable to his or her case. Those two crucial legal briefs usually are followed by a further exchange of arguments in which parties are required to comment on their opponent’s pleadings and objections until the judge decides whether the evidence will be taken and which evidence should be produced. The latter depends on what the parties stated as facts in their written arguments, and how they explained that those facts will be legally significant. It is crucial to present the facts in full at the right time and with the decisive details, offering supporting documentation for those details presenting the points of fact in the argument with the supporting evidence and specifying the legal consequences established by the evidence of the given assertion. 

Of course, the legal evaluation of a claim or a policy or the content of an insurance contract admittedly is our primary expertise. However, we also reappraise the factual side of the claim’s underlying circumstances. We assist in and provide the research of evidence.

 

It is a special characteristic of German procedural law that witnesses do not provide witness statements. First, they appear in court and face the court’s questions. Then, the party naming them is given the opportunity to ask further questions, followed finally by the opponent’s questions. What information a witness will be asked for and provide in the trial is not usually known ahead of time. To effectively face the opposing party’s witnesses, one must thoroughly investigate the facts.

 

Another common practice in German procedural law is that the court names its own experts if facts need to be assessed technically. In German civil procedure there is no expert witness who explains to the court on behalf of a given party how to appraise the facts. The court chooses an expert with an evidence order, and that person first independently reviews the interrogatories and finally sends a report of his findings to the court. The report is then forwarded to the parties and they can thereafter raise objections. That is what is obligatorily arranged for by German civil procedure.

 

The reason for this is that opinions from experts selected by the parties are usually seen as simply being the given party’s way to present facts. Court-appointed experts are the first to review and evaluate the court file, i.e. parties’ written arguments. That is why it is crucial to raise the appropriate issues and correctly present all relevant facts at the right time. However, sometimes that work can only be done with the help of a party-chosen expert given the particular skill sets of that individual. For that reason we keep our lists of specialized experts that will be able to reliably produce reports that will withstand the scrutiny of a court appointed expert and the judicial review.

 

Once all evidence is taken, the court will close the phase of legal arguments and find a judgement. A first instance complaint judgment above 600 EUR can be contested with an appeal. Appeal judgements are subject to either appellate review (revision if the appeal court allows for third-instance in the judgement) or complaint against non-admittance (grounds for complaint above 20,000 EUR).

 

The party that wins in the end will be allowed a cost order for reimbursing most of the legal costs (everything up to the substantial fees regulated by law which depend on the amount in dispute). If there is just a partial win, the costs are allocated to the percentage each party won their case.

 

 

Forums and Level of Jurisdiction

The German civil courts are organised in three layers (first instance: Amtsgericht and Landgericht, court of appeal: Landgericht and Oberlandesgericht, revision: Bundesgerichtshof). We can represent your company in all German forums in courts of the first instance and all appeal courts.

 

Appellate review is solely reserved for the lawyers admitted to argue before the Federal Court of Justice (Bundesgerichtshof aka BGH) in Karlsruhe, as German rules policing the legal profession prevent virtually all German litigators aside from those admitted to the BGH bar to work directly on the litigation before that judicial body. Nevertheless, we regularly consult with BGH-lawyers that have earned their merits on behalf of the insurance industry. If appellate review is deemed appropriate, we guide our clients through the procedure in concert with our contacts in Karlsruhe.

 

If needed there is also a way to lodge a complaint against the effect of an insurance contract law with the Federal Institutional Court. Those rare but high-stake cases are handled by our arbitration and consulting team.

 

In Germany, the judicial landscape allows judges in larger courts to specialize in particular practice areas just like lawyers do in private or public practice. In all major courts property claims and coverage issues are handled by judges who solely hear insurance cases. Judges at courts in larger cities will even hear only non-life cases. All issues will end at the same division of the BGH if they go all the way. Our property litigation team handles more than 1000 property insurance coverage claims for German insurers every year, building up experience that enables us to perform case evaluations, demonstrating that we know not only the law but also the acting court's interpretation of the law.

Arbitration and ADR

With consumers, arbitration is not a common vehicle for legal settlement. Arbitration is mainly used in industrial insurance. Being close to the German Institution of Arbitration seated in Cologne and ARIAS, we are in close contact with arbitrators and updated on current procedural issues. Our team of lawyers with extensive international experience are members of DIS and ARIAS but are also familiar with ad hoc arbitration, which, for the (re)insurance industry, remains the more common way to resolve disputes if large sums are at stake and parties do not want to disclose business facts to public records and be at the mercy of three instances before the German judicial system unfamiliar with the rare reinsurance disputes.

 

BLD chooses to focus all arbitration proceedings on partners working in the non-contentious area of our property team. Thus, the everyday habits of litigation will not eclipse the arbitration specialties of our partners, whose unique experience presenting cases in front of arbitration panels has been acquired through decades of experience.

 

Indeed, our senior partners are also available as arbitrators.

Consumers insurers

If you carry out underwriting work in Germany, you will notice that German consumers are more apt to file suit than is common in other European jurisdictions.

 

In Germany there is a considerably large overlap of those who simultaneously hold property insurance and legal expenses insurance policies. For that reason, many providers of legal expenses insurance also cover claims against property insurers. German courts are prepared to and actually do offer consumers swift solutions for minor claims. Usually, neither costs nor time are the primary aspects for the insured party when deciding how to proceed after a loss. Even if the insurer’s liability is undisputed, disputes can evolve from questions about the scope of loss and indemnity.

 

In short, if the insurer underwrites for German-related business, it is common that losses become subject to litigation. Yet, as litigation is the most common way of dispute resolution in Germany, there is a lean, cost-efficient way to work through it. We offer special litigation services for minor losses that limit your claims, keeping people’s workload to a minimum.

Industrial Insureds

The variety of contracts on the market makes diverse claims handling an absolute necessity. We assist your claims and/or legal department if your company needs to defend their interests in high-stake court cases or ad hoc or institutional arbitration.

 

Particularly with industrial losses it is important to deploy a specialized lawyer who brings to the table some understanding for the production process or the equipment used for that process, and how the impact from the loss due to the interruption in business can have an immediate effect upon the commercial sustainability of the insured’s business. Industrial insurance is not always just legal issues for us. It is also working numbers and finding solutions to allow future business relations between insurers and insured’s business.

 

Keeping the necessary practical measures in mind, we offer fully integrated advice.

Your Benefit

German litigation and arbitration represent a rather unique task, and BLD attorneys have the broad experience upon which you can rely. You can pull our resources of legal advice and fact finding whenever you need it.

 

The German insurance law dates back to 1908, but was significantly changed by a law taking effect at the beginning of 2008. Several legislative decisions show great effect on how insurance claims would be handled. Due to these changes, the German insurance market has faced significant challenges, even in contractual relations that started long before 2008.

 

To wade through this confusing array of regulations, you can use our expertise gained by constant communication with our clients, the German courts and working on landmark lawsuits about how to interpret and apply the new stipulations. Therefore, the entire German market has closely eyed how the BGH has dealt with certain legal issues. We were allowed to support the industry's interests in a number of lawsuits dealing with these issues. The results of the experience we have gained from those cases will work to your advantage when you entrust us with your representation.

KEY CONTACT

 

Dr. Martin Alexander, LL.M.

Theodor-Heuss-Ring 13-15
50668 Cologne

Tel  +49 221 944027-911
Fax +49 221 944027-985
martin.alexander@bld.de

 

PROF. DR. DIRK-CARSTEN GÜNTHER

Theodor-Heuss-Ring 13-15
50668 Cologne

Tel  +49 221 944027-911
Fax +49 221 944027-927

dirk-carsten.guenther@bld.de