Insurance claims in France and negligence clauses in French insurance policies.

Insurers in France are entitled to include exclusion clauses within their contracts. One such clause that regularly appears concerns negligence by the insured.

However, Article L113.1 of the French insurance code, the Code des assurances, requires that, to be valid, such clauses must be formal and limited, stating:

'Loss and damage caused by fortuitous events or by the fault of the insured shall be borne by the insurer, unless expressly excluded to a limited extent in the policy.'

According to the French insurance ombudsman, the Médiateur des Assurances, this means that the clause must be clearly stated so there can be no uncertainty in interpretation.

In this regard, several cases heard in the courts have determined that clauses that limit themselves to referring to a subjective test without further clarification are not formal and limited.

In a recent case considered by the French insurance ombudsman, the Médiateur des Assurances, during a trip an insured was a victim of the theft of personal belongings left in his rental vehicle, which was parked in the car park of his hotel.

As he was the holder of a bank card with insurance, including a security for theft of personal belongings, cash and travel documents, he declared the claim to his insurer in order to obtain compensation.

However, the insurer refused the claim, relying on an exclusion clause contained in the contract, and considering that leaving valuable personal belongings in the vehicle constituted an act of negligence.

The claimant challenged this position on the grounds that he had been careful not to leave his personal belongings visible and therefore had not been negligent.

The insurance contract did include an exclusion clause that stated that "personal belongings lost, stolen or damaged as a result of your negligence" were not covered.

The Ombudsman noted, however, that the concept of negligence was not defined in the contract, stating: "Neglect is, by its very nature, a subjective notion that needs to be interpreted. Indeed, it is not possible to determine, in abstract, the criteria for determining negligence."

In the absence of a contractual definition, the exclusion clause excluding any assumption of claims related to the 'negligence' of the insured is not formal and limited.

The Médiateur, therefore, invited the insurer to honour the guarantee in the policy.

Although insurers are not bound by the advice of the ombudsman, most insurers abide by them. Their decisions can, for instance, later be used in court proceedings.