A private health insurance company can only withdraw from the insurance contract if it has informed the policyholder of the consequences of a pre-contractual breach of the duty of disclosure by means of a separate notification in text form when the application is submitted. Compared to other information, this notice must be clearly emphasized. The content of the notice is incorrect if it informs about the insurer’s alleged right of withdrawal in the basic tariff and misleading if the consequences of a contract adjustment are not clearly explained.
Tenor:
1. it is hereby established that the insurance policy maintained with the defendant
health insurance contract with the insurance policy number ##.###.### continues to exist and has not been terminated by withdrawal or rescission on the part of the defendant.
2. it is established that the plaintiff is not obliged,
to reimburse the defendant the costs of inpatient treatment in the Schlossklinik Q for the period from February 15 to February 24, 2010 in the amount of € 3,480.00.
3. the defendant is ordered to pay the plaintiff € 11,240.00 plus interest in
the amount of 5 percentage points above the prime rate since April 26, 2010.
4. the defendant is ordered to pay the costs of the extrajudicial legal representation of the plaintiff in the amount of € 1,307.81 plus interest in the amount of 5 percentage points above the base interest rate since April 26, 2010.
The defendant shall bear the costs of the legal dispute based on a value in dispute of € 31,343.60.
The judgment is provisionally enforceable against security amounting to 110% of the amount to be recovered.
Facts of the case
The plaintiff and her daughter had health insurance with the defendant. Following an increase in her daughter’s health insurance premium, she exercised her right of termination. The defendant confirmed the termination of the insurance contract as requested in a letter dated November 6, 2007, namely for the daughter as of November 30, 2007 and for the plaintiff as ordinary termination as of January 31, 2008, the end of the insurance year.
On October 15, 2009, the plaintiff, a professional manager of an outpatient care service, applied for a new health insurance policy for herself from October 1, 2009 through her partner, witness I, an employee of one of the defendant’s multiple agents. In the application question about previous insurances, the defendant is listed as 02/08. The health questions are essentially answered in the negative, including the question about illnesses or complaints of any kind in the last 5 years. The question about treatments in the last 5 years is answered in the affirmative and a ring finger sprain in March 2005 without surgery and consequences is stated. The defendant accepted the application, but pointed out in the insurance policy that a premium surcharge would have to be paid for the period of non-insurance despite the existing insurance obligation from January 1, 2009.
From 16.02.2010, the plaintiff was treated as an inpatient at the Schlossklinik Q for a severe depressive episode. The defendant initially granted a cost commitment to the clinic, but revoked this in a letter dated 24.02.2010. In a letter dated 17.03.2010, it declared to the plaintiff that it was rescinding the contract due to fraudulent misrepresentation and, alternatively, that it was rescinding the contract due to a breach of the duty of disclosure on the grounds that the plaintiff had already suffered from increasing psychological complaints with depression and an associated weight loss of 10 kg from February 2009 and that the plaintiff had attempted suicide years ago.
The claimant denies that she was already ill when the application was submitted. She first consulted a specialist in January 2010, who diagnosed the depression. Although she had felt unwell after February 2009 and had also lost some weight, she attributed this to typical signs of ageing in women. The suicide attempt was 20 years ago.
The plaintiff is of the opinion that she did not conclude a new health insurance contract, but continued the old one. She claims that she only realized in mid-August 2009 that her part of the contract had been inadvertently terminated.
The plaintiff is seeking a declaration that the health insurance policy continues to exist despite withdrawal and rescission, payment of the unpaid costs for inpatient treatment and a declaration that the company is not obliged to reimburse the treatment costs already paid.
The applicant claims, as recognized.
The defendant requested that the action be dismissed.
It adheres to the principles of rescission and withdrawal.
The court took evidence of the defendant’s allegations regarding the plaintiff’s illnesses and complaints that existed before the application was filed by taking written evidence from the doctors treating the plaintiff at Schlossklinik Q. It also heard the plaintiff in accordance with § 141 ZPO. In this respect, reference is made to the minutes of the hearing of July 29, 2010 and the written statements of the witnesses. With regard to the further details of the parties’ submissions, reference is made to the content of the written submissions exchanged between them, including annexes, as well as the minutes of the hearing.
Reasons for the decision
The action is fully justified.
The health insurance contract concluded between the parties is neither to be regarded as void from the outset due to a rescission by the defendant nor has it been retroactively rescinded by a declaration of rescission. Therefore, the defendant is obliged to bear the costs for the inpatient treatment of the plaintiff in the final clinic Q as well as the pre-trial attorney’s fees for the assertion of the claim.
The court agrees with the defendant that a new health insurance contract was concluded between the parties in 2009 and not – as the plaintiff believes – that the old health insurance contract was continued. This is because the plaintiff had terminated the old health insurance contract, also insofar as it concerned her. The defendant confirmed the termination and the plaintiff no longer paid any premiums from the date on which the ordinary termination became effective. These circumstances indicate beyond doubt that the old health insurance contract was terminated by the plaintiff.
The health insurance contract concluded in 2009 is subject to the provisions of the VVG 2008, as it was concluded after December 31, 2007 (Article 12 of the VVG Reform Act of November 23, 2007, BGBl. I p. 2631). Thus, with regard to the breach of the pre-contractual duty of disclosure asserted by the defendant, §§ 19 et seq. VVG apply. However, neither the defendant’s declaration of rescission in bad faith is valid nor can the defendant invoke a right of rescission.
1. according to § 22 VVG, the insurer can contest the insurance contract due to fraudulent misrepresentation, notwithstanding the rights under § 19 VVG. However, the defendant has not proven that the plaintiff committed such fraudulent misrepresentation when submitting the application.
The fraudulent misrepresentation according to § 123 BGB requires a representation of false or concealment of untrue facts to the insurer for the purpose of creating or maintaining an error. The policyholder must act intentionally by consciously and willfully influencing the insurer’s decision. False statements in an insurance application alone do not justify the conclusion of fraudulent misrepresentation; there is no general principle based on experience to the effect that a deliberately incorrect answer to an application question is always and only given with the intention of influencing the insurer’s will. From a subjective point of view, the assumption of fraudulent intent also requires that the policyholder recognizes and approves that the insurer would not accept his application at all or only under different conditions if the true facts were known. Furthermore, the fraudulent misrepresentation must have become causal for the insurer’s declaration of intent (established case law, most recently BGH VersR 2011, 337 with further references). Measured against this, the defendant has in any case not proven an intent to deceive on the part of the plaintiff. The court can infer from the written statements of the doctors named by the defendant that the plaintiff already had complaints before submitting the application in October 2009, which should also have been stated in response to the corresponding question in the application form, so that objectively there is a breach of the pre-contractual duty of disclosure. However, the witnesses also stated that the plaintiff did not recognize the true cause of these complaints, but attributed them to the menopause. This seems understandable to the court, since mentally ill people in particular do not always realize that the cause of their complaints is psychological. Thus, the defendant has not proven that the objectively incorrect answers to the health questions were given with the intention of influencing the insurer’s will. For if the plaintiff attributed her complaints to the menopause, the court cannot assume that she recognized and approved that the defendant would not accept the insurance contract at all or only on different terms if it were aware of complaints typical of women during the menopause.
2. the alternative declaration of withdrawal is also unsuccessful. This is because the defendant is not entitled to a right of withdrawal in accordance with § 19 para. 5 sentence 1 VVG simply because it did not inform the plaintiff of the consequences of a breach of the duty of disclosure by means of a separate notification in text form.
a) The notice given to the plaintiff pursuant to § 19 para. 5 sentence 1 VVG does not meet the formal requirements for a “separate notification in text form”. The defendant decided not to integrate the notice pursuant to § 19 para. 5 sentence 1 VVG into the application form, but to insert it into the important information and final declarations attached to the application, which are referred to before the signature bar in the application form. However, these important notices and final declarations contain not only the reference to the legal consequences of a pre-contractual breach of the duty of disclosure, but also a variety of other information to which the reference to the legal consequences of a pre-contractual breach of the duty of disclosure is neither emphasized, let alone clearly highlighted. As the court already stated in its final judgment of 17.12.2009 – 2 O 399/09 – (Versicherungsrecht 2010, 465 with note by Marlow and note by Steinborn in jurPR-Versicherungsrecht 6/2010 note 1), the notice required pursuant to § 19 para. 5 sentence 1 VVG can only fulfill the warning function intended by the legislator if the notice stands out so clearly from other parts of the text between which it has been inserted that it cannot be overlooked by an applicant with average care. These requirements are not met by the notice designed by the defendant, which has been embedded in numerous other notices in the same font size, in the same font and without any other type of emphasis. This formal defect alone does not allow the defendant to exercise any right of withdrawal to which it may be entitled.
b) However, the reference to the legal consequences of a pre-contractual breach of the duty of disclosure is also materially incorrect, so that the defendant cannot invoke a right of rescission due to a pre-contractual duty of disclosure for material reasons either. In its decision already mentioned and published in Versicherungsrecht 2010, 465, the Chamber stated that the notification required under § 19 para. 5 sentence 1 VVG requires a notification that is not only correct in terms of content, but also as comprehensive and unambiguous as possible, taking into account the warning function of the notification, and that is unambiguous from the applicant’s point of view. The defendant’s instruction, which is very extensive and possibly overburdening for the average policyholder for this reason alone, does not meet these requirements either:
“Please note that, in accordance with § 19 VVG, you are obliged to answer the insurer carefully, truthfully and completely to the best of your knowledge before submitting your policy declaration of all circumstances known to you which are of significance for the assumption of the insurance cover and which are asked about in text form, and also to state illnesses and/or complaints which you consider to be insignificant (pre-contractual duty of disclosure). In the event that you breach your pre-contractual duty of disclosure by not or incorrectly disclosing the known risk circumstances about which the insurer has asked in text form, we will inform you of the following legal consequences:
Depending on whether they breach the duty of disclosure intentionally, through gross negligence or through slight negligence, the insurer can withdraw from the contract, terminate it or, if certain conditions are met, adjust the contract.
If you breach the duty of disclosure intentionally or through gross negligence, the insurer may withdraw from the contract. If insurance cover is provided under the basic tariff, the insurer can only withdraw from the contract in the event of an intentional breach of the duty of disclosure. If the contract is rescinded, the insurer shall not be obliged to pay benefits unless the breach of the duty of disclosure relates to a circumstance that is not the cause of the occurrence or determination of the insured event or the determination or scope of the insurer’s obligation to pay benefits.
If they breach the duty of disclosure through slight negligence, the insurer may terminate the contract subject to a notice period of one month if it is not a medical expenses insurance within the meaning of § 193 Para. 3 VVG. Medical expenses insurance within the meaning of § 193 Para. 3 VVG includes all tariffs that include at least the reimbursement of costs for outpatient or inpatient treatment, unless they supplement the insurance cover of a statutory health insurance policy.
Except in the event of a breach of the duty of disclosure, the insurer’s right of rescission and right of termination are excluded if the insurer would have concluded the contract even if it had known of the undisclosed circumstances, albeit under different conditions. In this case, the insurer may demand an adjustment of the contract by which the other conditions become part of the contract retroactively in the event of a culpable breach of the duty of disclosure.
The insurer shall not be entitled to the aforementioned rights if it was aware of the undisclosed risk circumstance or the inaccuracy of the notification.
The insurer’s right to contest the contract on the grounds of fraudulent misrepresentation remains unaffected. If the contract is effectively contested by the insurer due to fraudulent misrepresentation, the insurer shall not be obliged to pay benefits.”
On the one hand, the instruction is incorrect insofar as it informs about an allegedly existing right of withdrawal in the event of a deliberate breach of the duty of disclosure in the case of insurance cover under the basic tariff. According to § 203 para. 1 sentence 3 VVG, a risk assessment is only permissible in the basic tariff if it is necessary for the purposes of risk equalization according to § 12 g of the Insurance Supervision Act or for subsequent tariff changes. Consequently, the defendant cannot carry out a risk assessment for insurance under the basic tariff in order to use this as a reason for withdrawal (Marlow/Spuhl VersR 2009, 593, 600/1). Apparently, the defendant misunderstood § 193 para. 5 sentence 4 VVG, according to which the application for insurance cover under the basic tariff may only be rejected due to an existing insurance obligation if the applicant was already insured with the insurer and the insurer has contested the insurance contract due to threats or fraudulent misrepresentation or has withdrawn from the insurance contract due to an intentional breach of the pre-contractual duty of disclosure. This provision entitles the health insurer to reject an application for insurance cover under the basic tariff if it has withdrawn from a pre-existing insurance contract due to a deliberate breach of the pre-contractual duty of disclosure. The provision does not give the insurer the right to withdraw from a concluded health insurance contract in the basic tariff because a breach of the duty of disclosure was committed when the application was submitted, since a risk assessment – as explained – is only permissible for the purpose of risk balancing or for subsequent tariff changes in accordance with § 203 Para. 1 Sentence 3 VVG. Insofar as the applicability of §§ 19ff. VVG is also advocated when taking out health insurance in the basic tariff (Marko in Rüffer/Halbach/Schimikowski, HK-VVG, § 193 para. 13 and 20; ders. in Marlow/Spuhl, Das Neue VVG Kompakt, 4th ed. Rn. 1345), no restriction of the right of rescission to an intentional breach of the duty of disclosure is advocated, so that the defendant’s instruction is incorrect even if this view, which is not shared by the court, is applied.
In addition, the instruction is also misleading insofar as it refers to the legal consequences of withdrawal, rescission and contract adjustment. The defendant expressly mentions that there is no entitlement to the insurance benefit either if the right of withdrawal is exercised or if the declaration of rescission is effective. However, such a reference is not found in the explanation of the legal consequences of a contract adjustment, at least not with the clarity required for the understanding of the average policyholder. Here, the defendant merely points out that in the event of a contract adjustment, the other conditions will retroactively become part of the contract. The average policyholder will not understand this to mean that his insurance cover can also lapse retroactively if the contract adjustment is made as a retroactive insertion of a risk exclusion. Precisely because the defendant has pointed out the loss of insurance cover in the event of exercising a right of withdrawal or declaring a fraudulent rescission, the average policyholder will assume that he is not threatened with the loss of insurance cover in the event of a retroactive adjustment of the contract. The court does not consider it necessary for the consequences of a fraudulent rescission to be explained at all. However, if the defendant deems it necessary to point out that the insurance cover lapses in the event of a fraudulent rescission, the court considers it all the more necessary to also mention this legal consequence when adjusting the contract. The average policyholder will know that there is no insurance cover in the event of rescission or withdrawal. However, he will not be aware of this legal consequence when the contract is adjusted, as this is to be understood as an adjustment of the premium rather than the insertion of an exclusion of risk with retroactive effect and the associated loss of insurance cover for an insured event that has already occurred. Therefore, the court considers the reference to the retroactive loss of insurance cover when exercising a contract adjustment to be more necessary than its mention when exercising the right of rescission and right of avoidance. In any case, the mention of this legal consequence must not be omitted in the contract adjustment if it is expressly mentioned in the case of rescission and avoidance, because the average policyholder would then be given the false impression that he could not lose his insurance cover in the event of a contract adjustment.
The misleading of the plaintiff in the explanation of the legal consequences of an adjustment to the contract means that the defendant cannot exercise all of the formative rights affected by incorrect information in accordance with § 19 Para. 2 to 4 VVG, as the court ruled in detail in its judgment of February 24, 2011 – 2 O 250/10.
Since neither rescission nor withdrawal are successful, the health insurance contract between the parties continues to exist and the defendant is obliged to assume the costs for the plaintiff’s inpatient treatment in accordance with its promise of benefits made in the MB/KK. It is therefore not entitled to reclaim the costs already paid from the plaintiff.
The defendant has to bear the pre-contractual legal costs of the plaintiff from the point of view of culpable breach of contract in the form of a debtor’s delay in accordance with § 280 BGB.
The decision on costs is based on Section 91 ZPO, the decision on provisional enforceability on Section 709 ZPO.
(Dortmund Regional Court, judgment of 10.03.2011, ref. 2 O 105/10)