When assigning rights under a life insurance policy, the policyholder must notify the insurer of the assignment in writing. Without such written notification of assignment, the assignment is invalid.
The action is dismissed.
The plaintiff shall bear the costs of the legal dispute based on a value in dispute of € 42,809.76.
The judgment is provisionally enforceable against provision of security amounting to 110% of the amount to be recovered.
Facts:
In her action, the plaintiff seeks reimbursement of a surrender value of a life insurance policy paid out by her to the defendant.
The defendant’s former employer, X in M, took out a death and endowment insurance policy in the form of a direct insurance policy with the plaintiff’s legal predecessor in 1978 under the insurance policy number ####### in the name of the defendant, subject to the General Insurance Conditions for Life Insurance with Profit Participation (hereinafter: ALB). Section 14 (4) ALB stipulates:
“The pledging and assignment of insurance claims as well as the granting and revocation of a revocable subscription right are only effective vis-à-vis the company if and when the previous beneficiary has notified the Management Board in writing.”
Section 14 (2) ALB is agreed:
“The beneficiary acquires an immediate and irrevocable right to the benefit from the insurance contract if the company has accepted the policyholder’s application to this effect and has confirmed to him in writing that revocation is excluded. Until receipt of the confirmation, the beneficiary only has a revocable right to the benefit from the insurance contract.”
For further details of the contractual agreements, reference is made to the insurance policy (p. 29 of the file) and the applicable terms and conditions (p. 30 et seq. of the file).
In 1982, X assigned “all present and future rights and claims arising from the insurance contract” to E AG, handing over the insurance policy as security for, among other things, existing and future claims of E AG against X2, in B, which was transferred to the legal predecessor of the plaintiff with a letter of assignment signed by the plaintiff.
The statement of 12.10.1982 signed by the defendant and Mrs. X (p. 33 of the file).
The declaration of assignment states:
“After covering its claims secured by the assignment by way of security, the Bank is obliged to retransfer the rights and claims assigned to it under the insurance contract or any excess proceeds from the realization to the policyholder or, after the occurrence of the insured event, to the beneficiary.”
The plaintiff’s legal predecessor confirmed to E AG in a letter dated November 6, 1982 (p. 34 of the file) that it had noted the assignment and, in a further letter dated the same day (p. 35 of the file), informed its policyholder of the legal consequences resulting from the assignment under the BetrAVG.
Company X became insolvent in 2002, whereupon the defendant declared to the plaintiff’s legal predecessor on March 7, 2003 that he was assuming the status of policyholder. From this point in time, the defendant paid the premiums due.
For its part, E AG assigned its claims underlying the assignment from 1982, together with the collateral provided for this purpose, to T GmbH, based in G, in 2005, which T GmbH notified the plaintiff of in a letter dated February 8, 2005 and requested notification of the current surrender value of the life insurance policy.
The defendant had already approached the plaintiff’s legal predecessor in a letter dated January 10, 2005 (p. 13 of the file), had, among other things, terminated the life insurance policy with the insurance policy number ####### and – after submitting a copy of the insurance policy – requested that the surrender value be paid out to an account of his wife named by him. In a letter dated January 14, 2005, the plaintiff’s legal predecessor then requested a declaration of consent or release from E AG, whereupon the defendant submitted a list of securities from E AG dated January 14, 2001 on January 17, 2005.
which did not include the insurance in dispute. In a letter dated February 2, 2005, the plaintiff’s legal predecessor then reported the surrender value of this life insurance policy, among other things, as of February 1, 2005 at € 43,809.76 and paid this amount to the account named by the defendant.
For its part, T GmbH subsequently requested payment of the redemption value following the assignment by E AG, whereupon the legal predecessor of the plaintiff informed it in a letter dated July 26, 2005 that it had not been notified of the further assignment by the entitled party. In a letter dated the same day, the plaintiff’s legal predecessor requested that E AG in B submit a declaration of release. Following further letters dated 28.02.2006 and 13.06.2006, it received notification from E AG dated 22.06.2006, according to which it had disposed of its involvement in the X2 borrower group as part of a portfolio transaction and assigned all loan receivables (including the collateral liable for these) to T GmbH.
The plaintiff then wrote to the defendant on July 4 and July 27, 2006, setting a deadline of August 14, 2006 for reimbursement of the surrender value paid to him. After the deadline expired without result, the plaintiff continued to pursue her claim with her lawsuit.
It is of the opinion that the payment of the surrender value to the defendant was made without legal grounds.
The plaintiff finally applied – after partially withdrawing the action,
order the defendant to pay her € 42,809.76 plus 9 % interest since August 15, 2006.
The defendant requests that the action be dismissed.
He disputes the assignment from 1982 and claims that E AG declared in 1982 that the direct insurance should not be included as collateral in the loan complex, as it was a legally protected pension scheme. The life insurance sum was paid out to him on presentation of a replacement insurance policy issued to him by the plaintiff or its legal predecessor in 1990. He is of the opinion that the plaintiff cannot demand reimbursement even if the assignment is assumed to be effective, as in this case it would have made the payment in the knowledge that it was not owed. Alternatively, he raises the objection of deprivation of assets and claims that he had spent the money received entirely on living expenses.
Reference is made to the content of the written submissions exchanged between the parties and the documents submitted for the file for further details of the facts and the state of the dispute.
Reasons for the decision
The action is unfounded.
The plaintiff is not entitled to the claim for repayment of the surrender value paid out to the defendant from the life insurance policy in dispute under Section 812 (1) sentence 1 Alt. 1 BGB. The defendant either did not obtain the surrender value without legal reason, as he was the beneficiary of the benefit from the life insurance policy, or he would be entitled to a claim against E AG for payment in the corresponding amount after repayment to the plaintiff and forwarding to E AG as the beneficiary on the basis of the assignment made in 1982, so that he can counter the plaintiff’s inadmissible exercise of rights in accordance with § 242 BGB (“dolo agit, qui petit, quod statim redditurus est”).
The assignment of the then policyholder of the plaintiff’s legal predecessor, the company X, to E AG in B could already be ineffective – which does not require a final decision by the Chamber – if the defendant had already been granted an irrevocable subscription right from the life insurance at the time. X, to E AG in B could be ineffective – which does not require a final decision by the Chamber – if the defendant was already granted an irrevocable subscription right from the life insurance at the time, since, insofar as an irrevocable subscription right exists, the policyholder is no longer authorized to dispose of it (see BGHZ 45, 168 = NJW 1966, 1071 = VersR 1966, 359; Kollhosser, in: Prölss/Martin, VVG, 27th ed, § 13 ALB 86 marginal no. 50). However, the existence of an irrevocable subscription right is only indicated (cf. otherwise § 14 para. 2 ALB) by the disclosure of the declaration of assignment dated 12.10.1982 (p. 33 of the file), which the defendant expressly signed as the irrevocable beneficiary. According to its wording, this notification is a declaration by the policyholder at the time, with which the latter notified the plaintiff’s legal predecessor of its assignment to E AG. It is true that in the case of mixed life insurance taken out on the event of death and survival, the assignment of the rights subject to a condition precedent from the endowment insurance remains possible if – as is usually the case – the entitlement to draw is only intended for the death insurance subject to a condition subsequent. In the present case, however, the situation would be different, as the insurance benefit as a whole should accrue to the defendant as the insured person. In the event of the existence of an irrevocable subscription right for the defendant, the policyholder would therefore not have been able to effectively assign the claims to E AG. It is questionable whether the co-signature of the declaration by the defendant changes this circumstance, in particular whether the defendant’s own legal intention can be inferred from it, but for the following reasons this does not require a final decision.
However, if the defendant was only granted a revocable subscription right, the then policyholder of the plaintiff’s legal predecessor was able to assign the claims from the life insurance.
The fact that the life insurance was taken out as a direct insurance policy on the person of the defendant would not prevent the assignment from being effective. In the case of a direct insurance policy taken out on the employee in the context of the company pension scheme in accordance with the provisions of the BetrAVG, the employer remains entitled to assign the policy, which already follows from the wording of § 1b para. 2 sentence 3 BetrAVG (cf. in this respect also BAG, zfs 1994, 141; LG Frankfurt/Main, NJW-RR 1995, 162; Kollhosser, loc. cit, para. 62; Steinmeyer, in: Erfurter Kommentar zum Arbeitsrecht, 7th edition, § 1b BetrAVG para. 48; Joussen, in: Beckmann/Matusche-Beckmann, Versicherungsrechtshandbuch, § 43 para. 79). The employer is only obliged under the underlying pension relationship to place the employee in the same position after the vesting conditions have been met and the insured event has occurred as if an assignment had not taken place, § 1b para. 2 sentence 3 BetrAVG. This does not affect the benefit relationship between the insurer and the employee.
The validity of the assignment would also not be precluded by § 14 para. 4 ALB, as the notification of October 12, 1982 is a declaration by the policyholder at the time as the previous beneficiary. According to § 14 para. 4 ALB of the defendant – the content of the clause corresponds to § 13 para. 3 ALB 75 – a separate written notification of the assignment by the previous beneficiary to the insurer is required. In the absence of such a proper notification, the assignment is not only ineffective vis-à-vis the insurer, but absolutely ineffective (cf. fundamentally BGH, BGHZ 112, 387 = VersR 1991, 89; Kollhosser, loc. cit., para. 59; Brömmelmeyer, in: Beckmann/Matusche-Beckmann, Versicherungsrechtshandbuch, § 42 para. 126, each with further evidence; cf. also Kammer, judgment of 14.02.2008 – 2 O 384/06, juris). However, a notice of assignment on a form provided by the bank satisfies the requirements of § 14 para. 4 ALB (= § 13 para. 3 ALB 75): It is undoubtedly a declaration made by the policyholder in the proper form within the meaning of § 126 para. 1 BGB, with which he notifies the insurer of the assignment that has taken place. It is legally irrelevant whether the insurer itself transmits this declaration to the insurer after it has renounced it, or whether it uses the assignee as a messenger to transmit the declaration – as in the case underlying the decision of the BGH, VersR 1999, 700. In both cases, the special requirements of § 14 para. 4 ALB (= § 13 para. 3 ALB 75) would be taken into account. Further declarations by the policyholder – such as a separate written power of attorney to transmit the declaration – are also not required in the latter case because the provisions of civil law on representation are linked without exception to the submission of a third party’s own declarations (of intent) and therefore do not apply in the case of the mere transmission of third-party declarations by third parties (Kammer, loc. cit.).
In contrast, the (further) assignment of the rights from the life insurance in 2005 by E AG to T GmbH is absolutely ineffective, as it was not (initially) notified to the plaintiff by the previous beneficiary (in the case of the effectiveness of the first assignment of E AG), § 14 para. 4 ALB (= § 13 para. 3 ALB 75). The (later) notification of the assignment by E AG in 2006 could not change this (absolute) ineffectiveness, whereby it can be left open whether the initially missing notification can be made up for at all with regard to the consequences of ineffectiveness. When the surrender value was paid out to the defendant, there was indisputably no notification by E AG. The later notification of the assignment could no longer help it to become effective, since in this case the defendant would have acquired a right to the insurance benefit at an earlier point in time (cf. on the case of the revocable subscription right becoming irrevocable BGH, NVersZ 1999, 365).
In this respect – assuming the validity of the first assignment – it is decisive whether E AG was obliged at the time of the termination by the defendant to retransfer the assigned claim to him. In this case, the defendant could argue that the plaintiff, who would have to forward the payment pursued with the action to E AG, was exercising his rights inadmissibly, as E AG would in turn be obliged to return the payment to him immediately (see Palandt/Heinrichs, BGB, 66th edition, § 242 para. 52). According to the security agreement underlying the (collateral) assignment from 1982, this would be the case if – as the defendant claims – the purpose of the security either did not occur at all or ceased to exist later due to the (effective) assignment of the claim to be secured to T GmbH. This is the case here, as the purpose of the security ceased to exist in any case due to the transfer of the claim to be secured to E AG. After the assignment of the claim to be secured, E AG no longer had any need to retain the security, the (intended) transfer of which had failed, since the security agreement – even if both claims had been effectively assigned – was not transferred to T GmbH as the assignee. The fiduciary earmarking established by the security agreement is lost with the assignment of the security, the fiduciary relationship restricting the secured party is not transferred to the purchaser (cf. in this respect Clemente, ZfIR 2007, 737, 740 with further references in footnote 27).
The action was therefore to be dismissed with the costs resulting from Section 91 (1) ZPO.
The decision on provisional enforceability is based on Section 709 ZPO.
(Regional Court Dortmund, judgment 20.3.2008, ref. 2 O 144/07)