The Court of Cassation recently set out a number of important points on claims-made clauses, reaffirming that, among other things, the liability insurance loss occurrence scheme is not binding pursuant to Article 1932 of the Civil Code. Thus, it can be derogated from by parties, which are free to opt for the claims scheme model by including pure or mixed clauses in insurance contracts.
By a letter of 17 March 2020, IVASS (the Italian insurance regulator) and the Bank of Italy once again addressed the issue of policies connected to loan and financing contracts, recommending the adoption of verification procedures by the internal control functions of insurance undertakings and financial institutions in order to identify and remedy possible critical issues.
Section 46 of Institute for the Supervision of Insurance (IVASS) Regulation 40/2018 concerns (re)insurance distribution and provides that undertakings must, among other things, draft an annual report on the control over their distribution networks, which must be submitted to the board and the compliance division and delivered to IVASS. The deadline to submit the 2019 report and data relating to distribution networks is 29 February 2020.
The Institute for the Supervision of Insurance (IVASS) recently launched a public consultation on two separate documents containing additional rules implementing the local and EU laws on insurance distribution (and other ancillary provisions). The first consultation document relates to product oversight and governance, while the second introduces changes to existing IVASS regulations.
Employees injured at work are compensated by the National Institute for Insurance against Accidents at Work (INAIL), but can also bring an action before the civil courts against their employers or other liable third parties for damages not covered by INAIL. However, the criteria that the courts should follow to quantify so-called 'differential damages' remain unclear, which is relevant for third-party liability insurers exposed to indemnification claims arising from INAIL's recourse actions.
The China Banking and Insurance Regulatory Commission and the Italian Institute for the Supervision of Insurance recently entered into a memorandum of understanding setting out the basis for cooperation between the two supervisory authorities in the context of a broader plan of general cooperation between Italy and China. It will be interesting to see what concrete effects (if any) the memorandum will have, particularly in the context of the present unstable geopolitical situation.
IVASS (the Italian insurance regulator) recently clarified that warranty and indemnity (W&I) insurance policies do not fall within the scope of Article 4 of IVASS Regulation 29/2009 concerning risks connected to valuation gains and losses resulting from corporate transactions. The clarification is particularly helpful, as W&I insurance can be an important tool for completing corporate transactions smoothly and may favour the local market's development in line with international trends.
Similar to other jurisdictions, Italy has been affected by global phenomena such as technological advances, an ageing population, climate change and evolving legal and regulatory frameworks. So how has the Italian legal system adapted to emerging risks and the new needs of policyholders? This article examines a number of recent changes to the Italian insurance market in this context.
The Supreme Court and several lower courts recently examined the validity of claims-made insurance policies under Italian law and reached different, sometimes conflicting, conclusions. In its most recent decision in this regard, the Supreme Court abandoned the fairness or worthiness test, which is undoubtedly favourable to insurers.
IVASS, the Italian insurance regulator, recently introduced Regulations 40 and 41 regarding the distribution of (re)insurance products and pre-contract information duties. Alongside these regulations, IVASS also published a report following a consultation phase. The clarifications that IVASS provided in the report represent useful guidance for both insurers and intermediaries.
The new EU Insurance Distribution Directive was recently transposed into the Italian legal system. The Italian insurance regulator also recently published separate consultation papers on its website regarding implementing measures on (re)insurance distribution, pre-contract information for the marketing and manufacturing of insurance products and new procedural rules for the application of fines in case of breach of insurance regulations.
In recent years, the attention that IVASS (the Italian insurance regulator) and the EU authorities have paid to the protection and needs of insureds has increased and been translated into market letters (among other initiatives). These market letters aim to encourage insureds to intervene in contracts through the introduction of protective measures or eliminate potentially punitive restrictions, thereby limiting contractual autonomy in various areas.
IVASS, the Italian insurance regulator, recently provided details of an investigation into (re)insurance intermediaries' general understanding of cybersecurity-related issues and the remedies that they have implemented to protect their businesses and clients against the adverse effects of possible cyberattacks. IVASS will conduct another survey in 2019 to check that insurance intermediaries have complied with the proposed measures.
Article 117 of the Insurance Code provides that premiums paid to intermediaries and monies used to settle claims or due by insurers must be kept in separate accounts, the holder of which can be an intermediary that acts expressly in such a capacity. No seizure or distraint of the separate account can be carried out by creditors other than policyholders and insurers. IVASS recently clarified a number of issues in this regard following an investigation into the compliance of intermediaries with said requirements.
IVASS, the Italian insurance regulator, recently published a consultation document which includes a proposal to amend Regulation 35/2010 on the disclosure duties for proposers and the advertising of insurance products. The consultation document's publication follows the recent approval of EU Regulation 2017/1469 and sets out a standardised presentation format for insurance product information documents.
The Supreme Court recently ruled for the first time on the application of an insured's general duty to pay defence costs to prevent or mitigate loss, as set out in Article 1914 of the Civil Code. The court stated that such a duty applies to both first-party and third-party liability insurance, and – more importantly – that in either case it applies to defence costs.
A recent decision by the Supreme Court provided an important clarification on punitive damages and public order. The court ruled that damages in tortious and contractual actions seek not only to restore the position of the damaged party as it was before the wrongful action or breach of contract, but also to serve as a punishment and deterrent.
A recent Joint Divisions of the Supreme Court decision further clarified the Court of Auditors' jurisdiction compared with that of the civil courts regarding the liability of directors and officers (D&O) of companies held in whole or in part by public entities. The matter is relevant for insurers that underwrite D&O-related risks and need to determine whether the insured may be exposed to civil liability and sued before the civil courts or exposed to public liability and sued before the Court of Auditors.
Following Decision 9140 by the Joint Sections of the Supreme Court in May 2016, information asymmetry and the protection of insurance contract clauses became widely debated topics. While the court focused on the need to assess the validity of claims-made clauses on a case-by-case basis, this approach could also be applied in principle to any insurance contract clause that is not regulated by the Civil Code or other legislation.
The minimum requirements for mandatory professional indemnity (PI) insurance for lawyers were recently approved by Decree 22. The mandatory PI requirements for lawyers cover damages, gross negligence, wilful misconduct, claims from clients and third parties and joint and several liability. The minimum limits vary depending on the turnover and number of professionals.