The Distribution of the Burden of Proof in the Claim Settlement Procedure

Source abstract

<p style="text-align:justify"><span style="font-size:11pt"><span style="line-height:150%"><span style="font-family:"Arial","sans-serif""><span lang="EN-US" style="font-size:12.0pt"><span style="line-height:150%"><span style="font-family:"Times New Roman","serif"">The increasing number of court proceedings in insurance cases in recent years raises questions about the origins of this phenomenon. The author attributes this to the unreliable handling of the claims settlement by insurance companies. Against this backdrop, she analyses the distribution of the burden of proof in claims settlement procedure. The author addresses the question of whether the distribution of the burden of proof varies depending on the insurer’s liability regime, i.e. whether the insurer is liable on an accessory or a direct basis. These considerations have been applied to the context of claims settlement procedure. In this context, the author focuses on the legal nature of the Act on Insurance and Reinsurance Activities, assessing the admissibility of classifying the proper conduct of claims settlement procedure as an obligation arising directly from the insurance contract. In the area of procedural law, the author devotes particular attention to the possibility of deeming the insurer’s evidence – which could have been established as early as at the claims settlement stage – not to be delivered on time. Having recognized the doubts surrounding the application of the system of preclusion of evidence <i>de lege lata</i>, she formulates a <i>de lege ferenda</i> proposal to distinguish a category of evidence that may be disregarded. She also highlights the need to distinguish between the parties’ motions for evidence and motions to request evidence from institutions and third parties. In the context of the latter, the author assesses their effectiveness in the light of the requirement to establish that the party lodging the motion may not have been in a position to obtain such evidence independently, and relates these considerations to the relevant provisions of civil procedure.</span></span></span></span></span></span></p><p><b><span lang="EN-US" style="font-size:12.0pt"><span style="line-height:115%"><span style="font-family:"Times New Roman","serif"">Keywords</span></span></span></b><span lang="EN-US" style="font-size:12.0pt"><span style="line-height:115%"><span style="font-family:"Times New Roman","serif"">: burden of proof, claim settlement procedure, insurance contract, Act on Insurance and Reinsurance Activities, contractual liability, taking of evidence.</span></span></span></p>