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Settlement of damages in Italy for road accidents - avus

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Settlement of damages in Italy for road accidents - avus
2012, September 28 – Rome, Centro Congressi Pallavicini Rospigliosi
AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
“Settlement of damages in Italy for road accidents involving
foreign vehicles”
1 Claims procedure, the Italian bureau, claims for out-of-court damages
against the U.C.I.
1.1 The Italian bureau
1.2 Claims for out-of-court damages against the U.C.I.
1.3 New code for private insurance companies
2 The judicial phase of settling damages
2.1 Mediation procedure
2.2 Competence of Justices of the Peace and the Courts
2.3 Combining direct action with that of article 2054 of the civil code
2.4 The introductory phase of the judgement
3 Significant legal questions and exceptions raised in judgements against the
U.C.I.
3.1 Existing contrasts between legal prescriptions, in particular the code of
private insurance companies and judicial decisions.
3.2 The settlement of material damages, ongoing contrasts in jurisprudence
referring to what is known as “technical stoppage”, payment of VAT on estimates,
establishing commercial value of vehicle before the accident.
3.3 Passive legitimacy of the U.C.I. (Italian Central Office).
3.4 Stolen foreign vehicle that causes an accident.
3.5 The maximum level of catastrophic damages and the claims limit set by U.C.I.
3.6 The joinder of parties according to article 140 of the insurance code.
3.7 The releasing sequester in the event of an over-the-limit accident aimed at
avoiding conviction for appropriate and inappropriate mismanagement.
3.8 Summoning a foreigner (who is also owner of the vehicle) and the insurance
company at the U.C.I. without any “vocatio in ius” against the U.C.I. but with
preliminary notification to the U.C.I. consortium.
3.9 The hold-harmless summons by the U.C.I.
3.10 Formal interrogation of the summoned foreigner in default.
3.11 The international rogatory.
3.12 The probatory value of the CAI form signed by a foreigner.
3.13 Ceding credit following a road accident, material damages and injuries.
3.14 The indivisibility of the settlement procedure for material damages and
claims for injury damages. The U.C.I. does not allow separation of claims.
3.15 The burden of specific contestation (article 115 of the code of civil
procedure.
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2012, September 28 – Rome, Centro Congressi Pallavicini Rospigliosi
AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
4 Settlement of damages for injuries (micro-permanent and macropermanent)
4.1 Biological damage
4.2 Damage with reduction of generic working ability
4.3 Damage with reduction of specific working ability
4.4 Coenaesthesia affecting working ability
4.5 Subjective moral damages
4.6 Existential damages
4.7 Damages by death
4.8 Damages for a ruined holiday
5 Collaboration of the mandator for better handling of the case compared to the
preclusions of civil cases
5.1 Preclusions before court
5.2 Preclusions before Justice of the Peace
5.3 Summarised table
6 Applicable rights and compensation in favour of foreign citizens
6.1 A first solution: the socio-economic context of the place where the damaged
party resides is irrelevant as regards the settlement of damages not involving
property.
6.2 The preferable solution: the amount of the damage claim must always be
commensurate with the socio-economic conditions of the place where the
damaged party normally resides.
6.3 A case in point subject to the fourth directive (vehicles).
6.4 Residual questions not subject to the fourth directive (vehicles).
6.5 EU regulation no. 44/01: questions regarding the applicability of this norm to
road accidents.
6.6 Direct action against the mandator for the settlement of accident claims.
7 The direct indemnity
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2012, September 28 – Rome, Centro Congressi Pallavicini Rospigliosi
AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
1 The claims procedure, the Italian bureau, requests for out-of-court
settlements submitted to the UCI
1.1 The Italian bureau
1.2 Requests for out-of-court settlements submitted to the UCI
1.3 The new code for private insurance companies
1.1 The Italian bureau
bureau has two
functions: on the one hand,
it deals with claims for
EXAMPLE
damages occurring within
If a French vehicle, travelling through Italy,
its territory by anyone who
comes into collision with an Italian vehicle,
has
suffered
damage
the injured party can request payment of the
caused by a vehicle
damages by the Italian bureau (UCI), which
registered
abroad
and
will pay what is due, then charging the French
having a green card
bureau which, in the end, will obtain
(handling bureau), and on
reimbursement from the French company
which issued the green card.
the other hand, guarantees
to reimburse, to the
equivalent bureau in the
country where the accident
happened, the amounts paid to the damaged parties when the vehicle that caused
the accident is covered by a green card issued under its responsibility (paying
bureau).
The
The operation of the system is guaranteed by the fact that all the bureaux have
signed an international convention, called Uniform Agreement between Bureaux,
which identifies the rights and obligations of the adherents.
The main points of the above convention are as follows:
• payment of compensation for damages by the bureau of the country where the
accident happened, in its capacity as handling bureau, by applying the national
laws (lex loci commissi delicti) and the exclusive competence of the handling
bureau to interpret such laws;
• reimbursing the handling bureau for the amounts paid by the insurer of the
vehicle that caused the accident, with the subsequent substitution of the
bureau, of which the insurer is a member, as the paying bureau in the event of
their default.
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
Handling bureau, the organisation in the country where the
accident happened, receives the request for default and,
having verified the existence of the assumptions listed in
point an and in point quantum, pays the compensation
established by the damaged party.
Paying bureau, the organisation that issued the Green Card,
guarantees to repay the amounts advanced by the handling
bureau to the damaged party.
The insurer who drew up the insurance contract for the
damaged vehicles reimburses the paying bureau.
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2012, September 28 – Rome, Centro Congressi Pallavicini Rospigliosi
AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
Query
Is a vehicle registered in a country that does not recognise
the green card system allowed to transit in Italian territory?
For all vehicles registered in countries that do not recognise the green card system,
it is necessary to draw up a “frontier-issued temporary policy”, known as a pink
card, at the point-of-entry customs office; it can be used in all EU countries
according to article 125, paragraph 3, letter (a), of the insurance code which refers
the discipline of this particular contract to specific regulations.
These regulations were issued with a ministerial decree (Decree of the Ministry
for Economic Development no. 86 of 1 April 2008), article 6 of which contains the
following dispositions:
• the contract can only be issued for vehicles travelling in Italy temporarily;
• the duration of the contract is not less than fifteen days and not more than six
months;
• the contract is stipulated with insurance companies authorised to operate in
Italy, the automobile civil responsibility branch, who collaborate with the
Italian Central Office of which they are members.
Finally, it is important to know that the ISVAP has explicitly forbidden this type
of contract for vehicles registered in countries of the European Union (Report on
ISVAP’s activities for year 1996, volume I, page 225).
1.2 Requests for out-of-court settlements submitted to the UCI
Article 22 of law no. 990 of 24 December 1969, states that the feasibility of the
judicial request put forward by the injured party in order to obtain compensation
for the harm suffered following a road accident, depends on the prior consignment
of a request for compensation, with a minimum content shown in the above norm,
as well as a deadline fixed at sixty days as a general rule; failure to meet this
deadline leads to the closure of the controversy with a standard formula.
1.3 The new code for private insurance companies
The new code for private insurance companies (legislative decree no. 209/2005)
recognises the need for the obligation of prior request to the insurance company as
a condition for further proceedings and subsequent judicial action, if any, but with
some significant new features.
First and foremost, this provision is contained in just one article of law no. 990/69,
and has been used in several norms and adapted to specific situations of the
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
various compensation actions concerning both the quality of the injured party
and the passive subject.
The new norm is not limited to requiring the delivery of the notification letter but,
differently from law no. 990 of 24 December 1969, states that “the compensation
action … can be put forward only after sixty days, or ninety days in the case of
damages to the person, from the date when the injured party requested
compensation from the insurance company, by registered letter with delivery
notification … having followed the rules set out in article 148” (article 145 of the
insurance code); it is no longer sufficient to deliver the compensation request; to
achieve its aim, the request must be prepared according to the rules shown in the
above article.
On the other hand, article 148, paragraph 5 of the insurance code states that, in the
case of an incomplete default letter, the insurance company can request the
necessary integrations thereby suspending the terms for the proposal of offer and,
indirectly, for proposing the application.
Relevant jurisprudence
Formalised orientation
Court of Rome, section. XII, 15 July 2010, Dott. Ranieri – It is true that the
notification letter contains the analytical reconstruction of the accident in
question and the report by the Carabinieri but it is also true that while it indicates
the various fractures suffered by the injured party, it does not say whether there
has been full recovery or not, or what permanent lesions there are, since the
injured party is still in hospital on the date of the request, as shown above; no
medical certificates are attached (except for the police report) nor, importantly,
“medical attestation proving recovery with or without permanent lesions” as
requested by the new norm with the result that the action must be barred to
further proceedings.
Anti-formalised
orientation
Relevant
jurisprudence
Court of Nola, 4 December 2007, Dott. Notaro – It should be pointed out that
linking the damaged parties, regarding further proceedings of the application, to
the specific elements required by article 148 of the insurance code, meets the need
of enabling the insurance company to evaluate analytically the resulting
compensation which the accident could lead to; this fact, regarding the
information required in the above disposition, shows an attempt to align the
amount of the damages shown in the notification letter and the amounts put
forward in court hearings, since it is no longer permissible to indicate such
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
amounts generically and all-inclusively. In fact, as has been pointed out by
previous commentators, notwithstanding the forecast of more stringent
conditions regarding the contents of the notification letter, the new norm limits
the number of situations which previously allowed the existence of equivalent
circumstances, to the extent that the condition of moving on to further proceedings
seems to have been met. Therefore, following the notification of the damaged
party, in cases where the insurance company has taken practical steps to start the
procedure for settling the damages, it seems unlikely that the situation is barred
from further proceedings.
Notification letter against the U.C.I.
Justice of the Peace, Marigliano, 15 February 2007, Dott. Chianese – The
request for compensation, given the peculiarity of representation by the Italian
Central Office (U.C.I.), does not have to be accompanied by all the information
listed in article 148 of the insurance code, but must contain only the description of
the fact and the willingness to allow the items to be viewed. At the same time, it is
difficult to expect a foreign damaged party to show an Italian tax code for the
simple reason that the cited article presupposes that the document has been issued
by the tax office, while a foreigner is unlikely to have an Italian tax code.
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2012, September 28 – Rome, Centro Congressi Pallavicini Rospigliosi
AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
Query
Does the notification letter against the
U.C.I. have to contain particular
formalities?
The possibility of initiating judicial action depends on the correct formulation of
the notification letter as well as the passage of time known as spatium deliberandi
which, following the coming into force of the fifth directive (vehicles) regarding
accidents involving foreign counterparts, is three months from the date when the
handling bureau receives the notification letter.
There is no doubt, however, about the irrelevance of requesting a tax code from
foreign parties since they are unlikely to have one (Justice of the Peace,
Marigliano, 15 February 2007, Dott. Chianese).
After sending the request for compensation, the Italian bureau verifies the
insurance coverage and appoints an Italian insurance company or an appropriate
service agency to deal with the accident. In the event of judgement, neither of
these bodies has passive legitimacy (Court of Lecco, 13 December 2006, no. 876;
Justice of the Peace, Milan, 10 October 2007, no. 11614) so they cannot be
summoned to appear before the A.G.O. in the event of a judicial controversy, as
will be seen in the following sections.
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
2 The judicial phase of settling damages
2.1 The mediation procedure (slides)
2.2 Competence of Justices of the Peace and the Courts.
2.3 Combining direct action with that of article 2054 of the civil code
2.4 The introductory phase of the judgement
2.1 The mediation procedure (slides)
2.2 Competence of Justices of the Peace and the Courts
Article 7 of the civil code, in the form resulting from the approval of law no.
69/2009, states verbatim:
“The justice of the peace is responsible for cases relating to movable goods whose
value does not exceed five thousand euros, and when the law does not attribute
the case to another magistrate. The justice of the peace is also responsible for
cases relating to compensation for damages caused by the circulation of vehicles
and boats, provided that the value of the controversy does not exceed twenty
thousand euros. [...].”
The subsequent article 8 sanctions the residual competence of the court:
“The court is responsible for dealing with all cases that do not fall under the
responsibility of another magistrate.”
With reference to the composition of the court, it should be noted that the court
always takes decisions as individual judgements except in the cases shown in
article 50-bis of the code of civil procedure which do not include road accidents,
where the case is submitted to the court’s opinion as a collegial group.
By contrast, the Justice of the Peace always consists of an individual magistrate.
An outsider who knows little about the Italian judicial system might not
understand the substantial difference determined by this division of competence
amongst ordinary judicial authorities as individual figures.
On this subject, apart from some divergences of opinion about the proper
proceedings before such bodies (see later sections), it is important to note that:
- the court is made up of stipendiary magistrates (giudici togati), that is,
professionals who are permanently employed by the Italian State as judges,
selected periodically by public competition convened by the Ministry of Justice
amongst graduates in jurisprudence who have also gained an appropriate diploma
from the schools of specialisation after a course lasting two years.
- the position of Justice of the Peace is held by honorary judges, that is, personnel
who are external to the judiciary, appointed by the Minister of Justice following a
selection process by qualifications, convened by the President of the Court of
Appeal by districts, amongst graduates in jurisprudence who are qualified to
practise the legal profession (lawyers) or who have carried out judiciary functions
or have taught juridical subjects at universities or held responsible positions in the
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
chancelleries, over thirty years of age and under seventy. The Justice of the
Peace is appointed for a period of four years, renewable for a further four
years.
2.3 Combining direct action and that as per article 2054 of the civil code
As previously mentioned, article 126, paragraph 2, letter b) of the code for private
insurance companies (identical to article 23 of law no. 990 of 24 December 1969)
sanctions the Italian Central Office “as per paragraph 2, letter b), paragraph 3,
letters b) and c), and paragraph 4 of article 125, for the purpose of settling
damages caused by the circulation of motor-driven vehicles and boats in Italy, to
take on the domicile of the insured party, for civil responsibility and their
insurance company”. On this matter, in claris non fit interpretatio, there are no
margins of interpretation, therefore the injured party who wishes to carry out
direct action will have to sue both the above consortium U.C.I. and the owner of
the foreign vehicle, requesting notification of the preliminary indictment only to
the head office of the U.C.I.. However, it often happens that the injured party asks
the court to order compensation for damages to be paid not only by the national
bureau but also by the summoned foreigner with the link of solidarity. In this case,
there is a combination (civil cassation, 9 May 2007, no. 10546) of two different
actions:
• a direct one according to article 144 of legislative decree no. 209 of 7
September 2005;
• another one ex article 2054 of the civil code against the person responsible
and/or owner of the foreign vehicle (obviously not subject to the maximum
limit of indemnity ex lege – see section 2).
with the immediate consequence that notification of the preliminary indictment to
the latter cannot be made at the head office of the UCI consortium according to
code of private insurance companies but has to be requested ex article 142 of the
code of civil procedure (court of Milan, 1 July 2010, no. 8719).
Relevant jurisprudence
Combination of two different actions: direct and ex article 2054 of the civil
code.
Majority opinion
Court of Milan, 24 June 2010, sentence no. 8346 – Request for conviction to
pay compensation for damages not only for the national bureau but also for the
summoned foreigner with solidarity link. In this case there is a combination (civil
cassation, 9 May 2007, no. 10546) of two different actions: a direct one according
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
to article 144 of legislative decree no. 209 of 7 September 2005, and another
one ex article 2054 of the civil code against the person responsible and/or the
owner of the foreign vehicle with the immediate consequence that notification of
the preliminary indictment to the latter cannot be made at the head office of the
UCI consortium according to the code of private insurance companies but has to
be requested ex article 142 of the code of civil procedure; this reasoning, on the
one hand, does not prejudice the rights of the injured party who can always resort
to direct action without being forced to pay for notification abroad (translating
document, finding address, etc), on the other hand, it protects the injured party
who might suffer the consequences of a judicial order without even having had the
satisfaction of the pending judgement beforehand.
Minority opinion
Justice of the Peace, Milan, 23 April 2010, sentence no. 10616 - The U.C.I.
summons the driver and foreign owner in order to obtain the sentence of payment
in its favour …. the U.C.I. has acknowledged, in effect, the inexistence of the
notification of the preliminary indictment against the summoned foreigner who
has taken not only direct action against the U.C.I. but also action ex article 2054 of
the civil code against the person responsible. Reading the preliminary indictment
leads to the conclusion – dissenting from the opinion of the U.C.I. – that the other
party did not put forward the necessary joinder of parties through direct action
against the U.C.I. and the foreign insurance company, therefore the notification to
the foreign joinder was properly carried out at the U.C.I.
2.4 The introductory phase of the judgement
It has already been pointed out that the Italian Central Office cannot be compared
to an insurance company but, on the contrary, should be recognised as a
representative of the foreign insurance company during the proceedings – a
circumstance that has implications also from the procedural point of view. In fact,
the injured party, in taking action against the U.C.I. consortium, must observe
several particular formalities which, if not respected, can result in the closure of
the proceedings with a standard formula.
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
Query
Does the party claiming to be injured, who
intends cite the UCI, have to respect the terms
for foreign residents or for residents within the
territory of the Italian Republic?
Article 126 of legislative decree no. 209/2005 (code of private insurance
companies), paragraph 3, states that: “In order to undertake direct action for
compensation against
NORMATIVE REFERENCES
the Italian Central
Office, the terms as per
Article 163 bis, first paragraph of code of civil procedure,
Between the notification date of the citation and that of the preliminary article 163-bis, first
hearing there must be a free period of not less than 90 days if the place
paragraph, and 318,
of notification is in Italy, and 150 days if the place is abroad.
second paragraph, of the
code of civil procedure,
have been doubled, resulting in 180 days for cases heard in court, and 90 days for
cases heard by a justice of the peace.
Relevant jurisprudence
Opinion more in favour of the U.C.I.
Court of Appeal, Milan, third civil section, in the case of RG no. 3935/2006,
ordinance 15 December 2009 – The court examined the acts and the documents
of the case and found that the term for appearance at the hearing, as per article 6,
no. 2, no. 8 letter b), and no. 9 of law no. 990 of 24 December 1969 in relation to
article 163 bis of the code of civil procedure, was not observed by the appellant in
citing the Italian Central Office, domicile ex lege of the foreign owner and the
foreign insurance company, that they did not appear in court, and that according to
article 291 of the civil code, there must be a renewal of the appeal notification to
the latter to appear at the hearing on 14 December 2010 at 11.00 hrs respecting the
special term cited, with the following motivation: the court orders the appellant
to renew the notification of appeal, respecting the special term currently of
(90x3=) 270 free days, taking into account public holidays.
Opinion leaning more towards the constitution
Court of Milan, 11th section, RG. no. 50208/2006, ordinance 6 October 2008 –
In the light of article 126 of legislative decree no. 209/2005 which assigns a term
for appearance of 180 days when taking legal action against the Italian Central
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
Office, the magistrate sets the date for a new hearing.
Court of Varese, RG no. 5166/2008, ordinance 11 December 2009 – The
magistrate, having listened to the parties, comments that, according to article 126
of legislative decree no. 209/2005, in order to take direct action for compensation
against the Italian Central Office, the terms have been doubled, as per article 163
bis first paragraph and 318 second paragraph of the code of civil procedure,
resulting in 180 days for judgement before the court and 90 days before the Justice
of the Peace, accepting the justification of such terms in order to provide more
time for the U.C.I. to prepare its case, the above norm, also due to its later date
with respect to article 3 of law no. 102 of 21 February 2006, is considered to
prevail over article 415 paragraph 6 of the code of civil procedure. There is also
the fact that the extension of employment legislation to controversies regarding
road accidents does not change the subject of the case but remains closely linked
to codification no. 209/2006. In terms of relevance, because of the subject matter,
that norm prevails, either for the criterion of speciality or for the chronological
criterion. The procedural mistake relating to the terms for appearing at the hearing
renders the notification null. However, since the case involves the Italian Central
Office, article 164 paragraph three of the code of civil procedure applies by
analogy, and a new hearing has to be set, respecting the terms for appearance.
TAKING LEGAL ACTION AGAINST THE U.C.I.
What terms for appearance at the Opinion leaning towards the
Opinion more in favour of the U.C.I.:
hearing must a party observe
constitution:
•
270 days for cases
when taking legal action against
• 180 days for cases before the
before the court
the U.C.I.?
court
•
135 days for cases
• 90 days for cases before the
before the Justice of the Peace
Justice of the Peace
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
3 Significant legal questions and exceptions raised in judgements against
the U.C.I.
3.1 Existing contrasts between legal prescriptions, in particular the code of private
insurance companies and judicial decisions.
3.2 The settlement of material damages, ongoing contrasts in jurisprudence
referring to what is known as “technical stoppage”, payment of VAT on estimates,
establishing commercial value of vehicle before the accident.
3.3 Passive legitimacy of the U.C.I. (Italian Central Office).
3.4 Stolen foreign vehicle that causes an accident.
3.5 The maximum level of catastrophic damages and the claims limit set by U.C.I.
3.6 The joinder of parties according to article 140 of the insurance code.
3.7 The releasing sequester in the event of an over-the-limit accident aimed at
avoiding conviction for appropriate and inappropriate mismanagement.
3.8 Summoning a foreigner who is also owner of the vehicle, and the insurance
company at the U.C.I. without any “vocatio in ius” against the U.C.I. but with
notification of the preliminary indictment to the U.C.I. consortium.
3.9 The hold-harmless summons by the U.C.I.
3.10 Formal interrogation of the summoned foreigner in default
3.11 The international rogatory
3.12 The probatory value of the CAI form signed by the foreigner.
3.13 Ceding credit following a road accident, material damages and injuries.
3.14 The indivisibility of the settlement procedure for material damages and
claims for injury damages. The U.C.I. does not allow separation of claims.
3.15 The burden of specific contestation (article 115 of the code of civil
procedure).
3.1 Existing contrasts between legal prescriptions, in particular the code of private
insurance companies and judicial decisions.
Notwithstanding the extreme clarity of the norms, recent jurisprudence from the
court of Milan disregards the informative principle of article 148 of the code for
private insurance companies.
1. For accidents involving only damage to material things, the request for
compensation, presented according to the ways shown in article 145, must be
accompanied by the declaration form as per article 143 containing the tax codes of
those entitled to compensation, as well as the place, dates and times when the
damaged items are available for visual inspection in order to ascertain the scale of
the damage. Within sixty days of receiving this documentation, the insurance
company makes a suitable offer to the injured party for the compensation, or
specifies the reasons why it is not possible to make such an offer. The term of
sixty days is reduced to thirty days when the declaration form has been signed by
all the drivers involved in the accident.
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2. The obligation to make a suitable offer to the injured party for damage
compensation, or to specify the reasons why it is not possible to make such an
offer, also applies to accidents that caused personal injuries or death. The
compensation request must be presented by the injured party, or by entitled
persons, according to the ways shown in paragraph 1. The request must contain
the tax codes of those entitled to compensation and the description of the
circumstances under which the accident happened, and must be accompanied, for
the purpose of enabling the insurance company to ascertain and evaluate the
damage, by personal data relating to age and occupation of the injured party, their
income, the entity of the injuries suffered, with a medical certificate showing
recovery with or without permanent impairment, as well as a statement as per
article 142, paragraph 2, or in cases of death, by the family status certificate of the
victim.
As an example, here is a first degree case which was held in May 2012 by the
tenth civil section of the Milan court.
The magistrate decided not to apply the exception of no further proceedings, for
violation of the aforementioned norm, put forward by UCI’s defence counsel, on
the following grounds:
“The exception of no further proceedings raised by the UCI referring to the
problem of presumed failure to respect the spatium deliberandum, has been
overcome since the proceedings show that UCI itself produced a series of
compensation requests formulated at the end of July 2007 and in early August, and
that on 27/11/2007, Avus Italia Srl, the service company delegated by UCI to
handle out-of-court negotiations for the accident, gave notice of having received a
series of documents, and complaining about not receiving other documents; the
complex questions, also at later stages, involved in negotiating the case make it
clear that UCI’s failure to draw up a compensation proposal was not so much due
to incompleteness of the documentation, but rather to the complexity of the case,
determined by the many deaths and the number of injured people.
On the other hand, the aim of the norms, which UCI refers to, is to encourage outof-court definition of compensation cases, certainly not to encourage instrumental
sentences of no further proceedings.” (Court of Milan, section 10, sentence no.
5149/12 of 3/5/12, Dott.ssa Ilarietti)
Without going into a detailed examination of the case in point, it is useful to note
that, examining the documentation referred to by the magistrate, it emerges that:
for an accident which happened on 1/7/07, the first requests for damages
were dated 24/7/07 and 7/8/07 (referring to damages on a large scale since the
accident which happened on 1/7/07 caused five deaths and many injured people).
According to the law, the insurance company, once having received the full
documentation in cases of personal injuries, has 90 days to formulate the
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
compensation offer; therefore, considering the dates on the letters, the proposal
for judicial action could have taken place after 24/10/07.
But Avus Italia Srl, delegated by UCI to handle out-of-court negotiations, already
on 8/8/07 interrupted the term, informing the counterpart that it was impossible to
formulate a compensation offer due to the lack of documentation required by the
law as per article 148, paragraph 2, of the insurance code, in particular:
•
information about the work activity of the injured party (the
notification also required information about damage to assets);
•
income of the injured party as shown on appropriate fiscal
documentation;
•
appropriate medical documentation showing the entity of the
injuries (the notification also required information about biological
damage to the injured party and heirs);
•
medical certificate showing recovery with or without
permanent lesions.
All the elements required by the law and by the UCI, via the delegated agency, to
be able to formulate an offer were never received.
These elements were not present in the various notification letters (for example,
certificate of recovery) and could never have been included, for the simple reason
that some of the injured parties were still temporarily incapacitated and on sick
leave when the preliminary notification of judgement was made to the UCI.
Therefore, the injured parties, through their conduct have prevented a possible
out-of-court definition of the controversy, and the judgement took place in open
violation of the disposition as per article 148 of the code for private insurance
companies, paragraph 2, since the UCI never received a certificate of recovery
from the injured parties, and documentation regarding incomes.
In the magistrate’s opinion, “[...] the aim of the norms, which UCI refers to, is to
encourage out-of-court definition of compensation cases, certainly not to
encourage instrumental sentences of no further proceedings.” According to the
court of Milan, article 148 of the code for private insurance companies would lead
to an unsanctioned obligation.
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OPINION
F. Pintucci, “Sinistri stradali con veicolo straniero”
(Road accidents involving foreign vehicles), published
by Giuffrè, 2011, Officina del diritto - Too often the
equivocal nature or rather the incompleteness of the
norms regarding the essential nature or otherwise of
specific requisites already indicated by the law as
necessary for the formulation of a compensation
request, enables the magistracy to exchange places
with the law-maker sanctioning some legal principles
almost as if the Italian juridical system were not
founded on codified norms but rather on the principle
of stare decisis which is the basis of common law.
3.2 The settlement of material damages, ongoing contrasts in jurisprudence
referring to “technical stoppage”, payment of VAT on estimates, establishing
commercial value of vehicle before the accident.
• Damages due to technical stoppage
Regarding material damages, there are two contrasting opinions in jurisprudence
about compensation for what is known as “technical stoppage” and its fair
settlement.
According to the first opinion, this item of damages can be fairly settled by the
magistrate:
- “It is also fair to pay the company L.P.I. SpA a further amount of twenty euros
(in today’s currency) per day of technical stoppage, considering that it was not
possible to use the vehicle for which the owners had paid the relative registration
tax and compulsory insurance [...]” (Justice of the Peace, Milan, sentence no.
100577 of 18/01/2012);
- Damages due to “technical stoppage” suffered by the owner of the vehicle can
be fairly settled, independently of specific proof and in the absence of contrary
indications.
What matters is that the injured party has been denied the use of the vehicle for a
certain period of time, without considering the effective use (Justice of the Peace,
Milan, sentence no. 4314 of 9/3/11);
Then there is a second and contrary opinion which denies compensation for
damages due to technical stoppage on the basis of the following assumptions:
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- “Nothing can be settled regarding “technical stoppage” which cannot be
considered “in re ipsa” since explicit proof is required in this sense (Civil
Cassation section III, 6/2/02 no. 1627; sense (Civil Cassation II, 09/8/2011 no.
17135) not provided in the case in point.” (Justice of the Peace, Milan, civil
section ten, sentence no. 76/2012 of 23/01/12, Dr Mari);
- the court of legitimacy has also backed this opinion: “considering that, contrary
to the currently held view, damages due to technical stoppage cannot exist “in re
ipsa”, due to the fact that a vehicle was not used by the owner for a certain period
of time. Damage due to technical stoppage also has to be proved, like every other
type of damage. The proof must concern not only information on when the vehicle
was not used in relation to the dates when it was unavailable to the owner, but
also information regarding the owner’s effective need to use the vehicle, so much
so that the impossibility of using it caused damage, because for example the
owner was unable to carry out a particular work activity or because alternative
transport means had to be used (civil cassation, 19 November 1999 no. 12820).
Such circumstances do not appear in the appeal and cannot even be deduced,
except for the work activity of the appellant.” (Civil cassation, 7 August 2011,
no. 17135).
• Payment of VAT on estimates
There are also contrasts in jurisprudence regarding refunds of Value Added Tax
(VAT) when presenting in court a simple estimate of expenses.
-“Since compensation for damages extends to accessory and consequential
charges, if damages are settled on the basis of the expenses required to repair a
vehicle, the amount also includes VAT, even though the repairs have not yet taken
place – and if the injured party, by occupation, is entitled to refund or detraction
of the VAT paid – since the repair firm must apply it by law (presidential decree
no. 633, article 18 of 26 October 1972) on the invoice to the client (Civil
cassation, 14 October 1997, no. 10023).” (Court of Cassation, section III,
sentence no. 1688/2010);
A different opinion, on the contrary, states that VAT is not refundable, in the
absence of rigorous proof of effective payment:
- “Note that the amount excludes VAT which is not due on works not carried out
(the document is only an estimate not an invoice)” (Justice of the Peace, Milan,
sentence no. 10616 of 23.04.2010).
- “VAT is not refunded because it has not been paid by the party, since the vehicle
has not been repaired, nor have damages for technical stoppage been paid for the
same reason” (Justice of the Peace, Milan, sentence no. 5896 of 11.04.11).
- “Finally, VAT must be recognised as an integral part of the compensation for
damages due to road accidents, however, only in the case of effective payment,
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
documented by presenting the original invoice and not by a simple estimate of
expenses” (Justice of the Peace, Milan, sentence no. 109273 of 22/6/12)
Settling the pre-accident value of the vehicle in cases where
repairs would be uneconomical
An opinion in jurisprudence, reflecting legitimacy and merit, on the subject of
uneconomical repairs, admits the possibility for the magistrate in question of
sentencing compensation for damages by equivalence ex article 2058, paragraph 2,
of the civil code, in cases where a specific request could lead to repair costs that
exceed the value of the vehicle before the accident.
Compensation for damages by equivalence involves restoring the commercial
value before the accident subtracting the residual value of the damaged vehicle,
while reintegration in specific form consists of a sum of money corresponding to
the expenses required to repair the vehicle, independently of the cost of
uneconomical repairs.
On this subject, there are opinions that forcibly deny compensation for damages
when the cost of the repairs exceeds the value of the vehicle before the accident.
For example, see the decision by the Justice of the Peace, Milan, sentence no.
4138/2004, where the magistrate expressly declared that: “…the principle that
finds application is shared by jurisprudence, according to which the debtor
cannot be burdened by a compensation which is too heavy with respect to that
affirmed by the principle sanctioned by article 1227, paragraph II of the civil
code, which justifies the exclusion from the compensation package of amounts
paid out in excess of the value before the accident.”
There are also contrary opinions through which the magistrates accept requests for
integral compensation of damages also in cases of uneconomical repairs, though
with evaluations to be carried out case by case.
This magistrate considers [...] that recognition in a specific form represents,
without a doubt, a more valid and substantial settlement figure, taking into
account the usefulness of the vehicle: in fact, the figure of 3,500.00 euros
certainly does not represent a sufficient amount to buy a vehicle with the same
characteristics as the one involved in the accident, before it was damaged [...]. In
conclusion M.A. must be sentenced to pay the residual amount of 1,846.91 euros
to the party C.A.G.S...” (Justice of the Peace, Milan, sentence no. 109273 of
22/6/12; Court of Padua, sentence no. 9727 of 15 February 2010).
•
3.2 The passive legitimacy of the U.C.I.
The national bureau, in the case of an accident involving a motor vehicle
registered in a foreign country, adhering to the green card system, takes on the
function of:
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• domicile of the insured foreigner, civil responsibility and their
insurance company;
• passive legitimacy, in the event of a road accident in Italy involving motor
vehicles registered abroad, the injured parties can take direct action against
the U.C.I. according to the provisions of articles 145, first paragraph, 146
and 147.
Relevant jurisprudence
Justice of the Peace, Milan, ordinance, 29 March 2011 – The Supreme Court
has affirmed on several occasions that, on the subject of compulsory insurance for
civil responsibility deriving from the circulation of motor vehicles and boats, the
only party responsible for damage who is called to the proceedings promoted by
the injured party against the insurer with direct action, is the owner of the motor
vehicle or boat; it follows that the participation of the driver in the proceedings
can only be for purposes of a probatory nature, outside the compulsory joinder of
parties.
Court of Bergamo, 2 October 2002, sentence no. 2714 – While it is true that
article 6 of law no. 990/69 states that, in the event of direct action against the
Italian Central Office, what matters is the principle established by article 23 on the
necessary citation also of the party responsible for the accident; however, this
requirement has been interpreted as referring to the owner or insured party and not
simply to the driver, who would not represent the compulsory joinder of parties
(Civil cassation, 6 November 1996, sentence no. 9647; Civil cassation, 4
December 1996, sentence no. 10833)
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Query
Does the service agency or the
company appointed by the bureau to
deal with the accident have, or not
have, passive legitimacy in a case
brought by the party who is
presumed to be injured?
The company delegated to deal with accidents out-of-court does not have passive
legitimacy in relation to the direct request for compensation (Justice of the Peace,
Milan, 10 July 2007, no. 11614; Justice of the Peace, Milan, 31 October 2003,
no. 14497; Court of Naples, 15 March 1982). As further confirmation of this
reasoning, note that the court of Lecco (Court of Lecco, 13 December 2006, no.
876) accepted the concept of inexistent passive legitimacy raised by one of the
service agencies, given that the latter (Avus Italia Srl) was involved in a case after
being appointed to deal with an accident on behalf of an insurance company.
There is no lack of isolated statements rejecting the concept of inexistent passive
legitimacy (Justice of the Peace, Lodi, 21 July 2007, no. 1005) on the assumption
that the service agency “Avus Italia Srl was delegated by the U.C.I. to deal with
the accident up to the point of offering a sum of money in euros in order to
conclude the controversy according to article 2054 of the civil code”. According
to this view, the simple fact of being delegated to deal with out-of-court
negotiations of an accident would be sufficient to attribute passive legitimacy to a
third party company which does not operate in the insurance field. Such an
opinion is clearly groundless since, leaving aside the above arguments, it is
contrary to the law. However, the decision was overturned by the court of Lodi
following an appeal by Avus Italia Srl, the magistrate stating: “The criticism by
the defence counsel for Avus is valid. It is the Italian Central Office that
represents the foreign insurance company and not the service agency delegated to
handle out-of-court dealings regarding compensation. It follows that Avus Italia
as the representative of the U.C.I. does not have passive legitimacy” (Court of
Lodi, magistrate I. Gentile, sentence no. 372/2012).
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
Query
Can the foreign insurance company
bring an action autonomously in spite of
the fact that direct action has been taken
against the U.C.I.?
It is not unusual for the bureau to act in the interest of the foreign insurance
company, and the latter brings an action “autonomously”, that is, giving a direct
mandate to a lawyer for representation in court. This situation arose recently
before the court of Milan (Court of Milan, section 11, R.G. no. 50208/06)
causing considerable perplexity from a juridical point of view.
Query
If the accident involves two foreign
vehicles, both responsible, is it
necessary for the injured parties to
specify the foreign insurance company
which the bureau is representing in
court?
It can happen that an injured party brings an action against two distinct foreign
owners who are insured with different companies, both of whom are considered
co-responsible for the accident under consideration. The problem arises when the
U.C.I. is cited imprecisely, that is, with a single citation which does not specify
the representation in court of one insurance company or the other.
On this point of jurisprudence, the Milan and Bergamo courts have correctly
evaluated the question giving rise to a situation where the U.C.I. receives two
distinct notifications, the first as guarantor for the insurance of vehicle “A” and
the second as guarantor for the insurance of vehicle “B” (Court of Milan, section
12, sentence no. 9661/05; Court of Bergamo, section I, sentence no. 3361/04).
Vice versa another recent opinion maintains that, in the case in point, the
contradiction is fully settled and the Italian Central Office correctly summoned
with passive legitimacy for the deduced responsibility of the two owners of
vehicles both of which are registered abroad (Court of Milan, section 12,
ordinance, 13 April 2011).
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3.4 Stolen foreign vehicle which causes an accident
Query
If the foreign vehicle which caused the
accident turns out to be stolen, to whom
should the Italian injured parties address
their requests?
Legislative decree no. 198 of 6 November 2007 introduces into Italy what is
known as the “fifth directive (vehicle)” which also placed two new “letters” (d bis
and d ter) in the first paragraph, article 283 of the insurance code (which now
become six), relating to cases involving the Fund for guaranteeing road accident
victims. And one of the two new situations is that “the accident was caused by a
foreign vehicle with a registration plate not corresponding, or no longer
corresponding, to the same vehicle” which leads to identifying the Guarantee
Fund as the subject responsible for compensation.
3.5 Maximum level of catastrophic damages and the claims limit set by U.C.I.
The elimination of customs barriers and the creation of the EU Schengen area has
encouraged the adoption of policies aimed at unifying national norms, so much so
that with the approval of Directive 2005/14/CE, Fifth Directive (Vehicle), it is
hoped that, by 11 June 2012, the national legislations of all member States will
include the following limits for insurance policies:
• Euro 5,000,000 per accident, without considering the number of victims
• Euro 1,000,000 per victim.
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Query
Do the above limits also apply to
the Italian Central Office?
Article 125 of the Insurance Code, paragraph 5, states that “as per paragraph 3,
letter c), the Italian Central Office deals with settling the damages, guaranteeing
payment to the entitled parties, within the limits set by the law or, if greater, those
set by the insurance policy to which the green card refers. As per paragraph 3,
letter b), and as per paragraph 4, the Italian Central Office deals with settling the
damages which occurred in Italy, guaranteeing payment to the entitled parties,
within the limits set by the law or, if greater, those set by the insurance policy”.
Errore. Il segnalibro non è definito.
In jurisprudence the general principle is that “regarding insurance of civil
responsibility for damages arising from the circulation of motor vehicles, in the
case of direct action undertaken by the injured party according to article 18 of
law no. 990 of 24 December 1969, should the insurer reject being held
responsible for compensation of damages within the limits of the policy, he is
bound to indicate what said limits are, providing proof by showing the actual
insurance contract” (Civil cassation, 14 December 2004, no. 23291): in other
words, it is the insurance company’s task to demonstrate the limits of indemnity
set by the contract.
However, this principle does not apply to the Italian Central Office which, as
mentioned above:
• is not an insurance company, and
• does not issue its own insurance policies.
The Italian Central Office does not have to prove the limits of indemnity (Civil
cassation, 3 October 2005, no. 19305) since the injured party, according to article
2697 of the civil code, has the task of proving in court the basis of his claims
(Civil cassation, 18 April 2007, no. 9243) regarding the foreign insurance policy.
IL LIMITS GUARANTEED BY U.C.I.
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The foreign insurer
guarantees a lower limit
compared to that set by
Italian or European
norms
The foreign insurer
guarantees a higher limit
compared to that set by
Italian or European norms
• The U.C.I. will anyway •
be obliged to settle the
damages within the
limits set by Italian
legislation.
• The U.C.I. is obliged to •
settle the whole amount
guaranteed by the foreign
insurer even if it is more
than the minimum set by
Italian legislation.
The magistrate is entitled to
determine the limits
guaranteed by the Italian
bureau.
However, it is the injured
party’s responsibility to
demonstrate that the limit
guaranteed by the foreign
insurer is higher than that set
by Italian legislation.
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Query
Can the Italian Central Office (or the
foreign insurance company) be obliged
to pay an amount that is higher than the
limit set by the contract, for reasons of
poor management?
Relevant jurisprudence
Responsibility for poor management
Court of Cassation, 18 January 2011, no. 1083 – Apart from cases of
responsibility of the insured party who fails to provide the insurer with all the
information in their possession, essential for understanding the case, the insurer
also faces the risk of not meeting the limit and of failure to settle the damages
within 60 days of the request by the injured party. In this case, the insurer is
bound to hold harmless the insured party, as part of the insurance relationship,
for everything that has to be paid to the injured party over and above the delayed
payment.
Court of Milan, 3 May 2012, no. 5149 - Regarding responsibility over and above
the limit, it is sufficient for the insurer to determine the responsibility of the
insured party and the amount of the damages, guided by the principles of due
diligence and good faith. Regarding the case in question, even though there were
many injured people, the insurance company was perfectly able to take decisions
since the responsibilities emerged clearly from the road accident report.
Therefore the amounts to be paid must be adjusted by applying the interest rates
set by law.
3.6 The joinder of parties according to article 140 of the insurance code
Article 140 of the code of private insurance companies confirms the principle of
par condicio between the injured parties, so that, in the case of a lower limit, the
rights of individuals must be proportionately reduced, down to the amounts
insured. On the other hand, a significant change has been introduced by paragraph
four of the above disposition which states that “in legal actions between insurance
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companies and injured parties, the requirement of compulsory joinder of
parties exists, applying article 102 of the code of civil procedure. The
insurance company can deposit an amount, within the limits, with a waiver effect
for all the parties entitled to compensation, as long as the deposit is irrevocable
and in favour of all the injured parties” with the evident aim of making the
compensation available to all the injured parties, safeguarding the principle of
proportional division of the amount.
Any sentence that contradicts this principle or is incomplete must be considered
inutiliter data (useless information).
3.7 The releasing sequester in the event of an over-the-limit accident aimed at
avoiding conviction for appropriate and inappropriate mismanagement.
The releasing sequester, according to article 687 of the code of civil procedure can
be ordered by the magistrate only at the debtor’s request and initiative (in this
case, U.C.I.) where the debtor contests the amount of the debt or is in doubt about
the identity of the creditor or wants to safeguard themselves while waiting for the
magistrate’s decision, so as not to suffer the effects of the fine; the result is that,
once the releasing sequester has been ordered for the amount that is presumed to
be owed, and should the proceedings lead to the conviction of the debtor, he
cannot be called upon to pay the interest charges and the revaluation of the amount
owed. (Civil cassation, section three, 14 July 2003, no. 10992).
Once the appeal has been made, notifying all the parties that might request
compensation for damages as a result of the road accident, the court magistrate, if
all the conditions exist, orders the releasing sequester with the deposit of the
amount in a bankbook under the name of U.C.I. appointing the legal
representative as custodian.
In the subsequent action take by the injured parties, the court will settle the
amount of the limit dividing it proportionally amongst all the entitled parties,
without interest charges and monetary revaluation.
Summarising: regarding the cautionary measure of sequester ex article 687 of the
code of civil procedure, the requirements for adopting the measure (Civil
Cassation 198/2003; 5410/1997; 8577/1996; Court of Milan 20/7/1995) are as
follows:
1) the effective offer, though it is sufficient to make it available without particular
formalities as per articles 1206 and subsequent paragraphs of the civil code,
amongst the many, Court of Bologna 3/4/1996, Foro Italiano 1996, 2904, by the
debtor, to the creditor, mainly to avoid the risk and the consequences of failure to
pay the amount (in his opinion owed) to extinguish the debt (Civil Cassation
198/2003; Civil Cassation 5410/1997); and for the case in point, the U.C.I. had
begun to make payments before they were suspended by court order;
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2) the existence of a controversy (not necessarily a pending sentence)
between debtor and creditor (Court of Milan 20/7/1995, G.I. 1996, 523), and
the appeal sentence is pending;
3) an initiative taken by the debtor (U.C.I.) (Civil Cassation 8577/1996) in
order to protect himself from the risks linked to the responsibility for late payment
(also where the debtor has not made a real offer, according to articles 1206 and
subsequent paragraphs of the civil code, as per article 1220 of the civil code) in
other words, being forced to request the repetition of the amount paid to the
creditor;
4) according to article 669-quater of the code of civil procedure, the competent
magistrate to handle the request for cautionary measures during the proceedings is
the one before whom the case is pending, excluding the pending cases before the
Justice of the Peace, before a foreign magistrate (in which case, the third
paragraph of article 669-ter of the code of civil procedure, applies) or before the
Court of Cassation (in which case nothing is required).
5) Jurisprudence recognises the possibility of granting the releasing sequester
when the obligation to provide the service derives from an executive sentence
which is not yet a final judgement. (Court of Milan, 20.10.69, in Foro Italiano
1970, 189)
3.8 Summoning a foreigner (who is also owner of the vehicle) and the
insurance company at the U.C.I. without any “vocatio in ius” against the
U.C.I. but with preliminary notification to the U.C.I. consortium.
Relevant jurisprudence
Court of Como, 22 January 2009, sentence no. 82 – Since the party did not put
forward any request for the conviction of the national bureau in the conclusions,
nor was such a request minimally evident in the body of the introduction to the
sentence subsequently notified to the U.C.I. it is not possible to formulate any case
against the U.C.I. since the introduction to the present proceedings does not
contain a request for the conviction of the foreign insurance company.
3.9. The hold-harmless summons by the Italian Central Office
On this point there is an interesting ordinance of 13 November 2004 by the court
of Mantua, which stated, correctly, that “in the opinion of this magistrate, the
hold-harmless summons of the U.C.I. does not seem merely formal since,
according to article 6 of law no. 990/69 (pre-existing), the foreign insured party
and the insurer are domiciled by law at the U.C.I. for the purposes of
controversies regarding the insurance relationship or in cases of direct action,
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while in the case under consideration a hold-harmless request has been made
which would have involved the direct citation of the third foreign injured party
according to the general rules as per article 142 of the code of civil procedure.”
On the other hand, the code of private insurance companies, following the sense of
the abrogated law no. 990 of 24 December 1969, grants only to the “injured party”
the possibility of taking direct action against the insurance company of the
responsible party; and, quite frankly, the insurance company that makes a holdharmless request cannot be considered as an “injured party”. The conclusion we
can draw is that when, for example, the defendant blames the owner or foreign
driver, they can indeed be served with a hold-harmless summons delivered to their
foreign residence, as per article 142 of the code of civil procedure, with the caveat
that if they wish to make a hold-harmless case against the U.C.I., the latter may
well object to the lack of passive legitimacy and anyway the impossibility of
taking further proceedings against it, in terms of direct action.
EXERCISING DIRECT ACTION
Comes into the category of injured party:
Does not come into the category of injured party:
• The person who suffered lesions
•
the insurer who makes a hold-harmless
request against another party involved in the
• The person who suffered material damage
accident
• The employer of the injured person
• The family members of the injured person
• The owner of the goods which have been lost
because of the accident
• The insurer who reimbursed the damages against
a comprehensive policy, and who takes on the
rights of the insured party
• The bodywork repairer with credit against the
insurance company following repairs to the
vehicle
• The heirs of a person who died in a road
accident
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3.10 Formal interrogatory of the summoned foreigner in default
Article 228 of the code of civil procedure, states that the “judicial confession”
can be obtained by means of a “formal interrogatory”.
According to article 231 of the code of civil procedure, the party must respond to
the interrogatory personally and orally unless the magistrate authorises the use of
notes and memos, and the answers are written out as the minutes of the
proceedings, as per article 207 code of civil procedure.
Therefore, the conduct of the parties during the interrogatory is of particular
importance. They can display three different types of conduct: 1) facing the
magistrate and stating facts that are unfavourable to themselves and favourable to
the counterparts, in other words confessing; 2) facing the magistrate and stating
facts that are favourable to themselves and unfavourable to the counterparts, in
other words remaining fixed in the views and opinions that have given rise to the
controversy; 3) facing the magistrate and refusing to take part in the interrogatory,
or not turning up at all.
The court of legitimacy has affirmed several times that the examination of the
foreign witness, also relating to contrary proofs or deduced proofs, must be carried
out, as per article 204 of the code of civil procedure, through an international
rogatory (Civil cassation, 19 November 1993 no. 11446; Civil cassation, section
I, 28 November 2001 no. 15096). Unfortunately this principle does not apply to
formal interrogatories.
Relevant jurisprudence
Justice of the Peace, Milan, section ten civil, 7 July 2005, sentence no. 6388 –
For their part, the defendants, by their absence, have not provided the rigorous
proof of relevant facts which modify or extinguish their obligation arising from
the illicit act committed by Bonov, whose failure to appear means that the
interrogatory is not formalised.
Justice of the Peace, Milan, section nine civil, 8 May 2004, sentence no. 5598 –
This reconstruction of the accident, based on the defendant’s statements, the road
accident report, the statements made by the witness, the damage to the vehicles
involved, has not been contested by the defendant who, without any justification,
did not appear at the hearing to render it valid, in spite of regular notification.
Failure to reply certainly represents a fact linked to the wider subject of the
behaviour during the hearing and, even though such conduct is not equivalent to a
confession, nevertheless it shows a link to the other elements explaining the
reasons for the accident. All these facts are convincing evidence of the exclusive
responsibility of the foreign defendant for causing the accident in question.
3.11 The international rogatory
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During a lawsuit, it can happen that certain parts of the proceedings, mainly at
the request of the parties involved, have to be carried out in places located
abroad, therefore outside the jurisdiction of the Italian system. This is certainly a
case when the U.C.I., as part of its defence arguments, has to examine witnesses
living abroad. For this purpose, there exists the judicial instrument of the rogatory,
that is, a formal request to the foreign judicial authorities to examine witnesses in
their country. On this point, article 204 of the code of civil procedure, states that,
during a case before an Italian magistrate, when the facts relating to the
controversy have to be acquired in a foreign country, the magistrate must use the
judicial instrument of the rogatory.
The parties involved are responsible for checking the time required for the
rogatory and, if necessary, requesting from the delegating magistrate an urgent
extension in the event of failure to complete the hearing in time.
The delegating magistrate will assess the situation and, if necessary, contact the
foreign authorities directly for assistance, also to safeguard the reasonable duration
of the lawsuit.
It is important to point out that, according to an established judicial practice, the
expiry of the time limit without a request for extension means that evidence
subsequently acquired will be declared null, hence unusable.
Continuing inertia on the part of the authorities involved in a rogatory, and the
absence of conventional means, may make it impossible to use this instrument.
Relevant jurisprudence
Nullity of rogatory for failure to notify
Majority opinion
Court of Milan, ordinance, 30 September 2004 – Since it is agreed between the
parties that the defence counsel were not notified by the foreign authorities of the
date for taking oral evidence and were not able to take part, arrangements have
been made to renew the appointment for taking oral evidence by rogatory before
the German magistrate, as per article 204 of the code of civil procedure.
Court of Milan, 20 May 2006, no. 5901 – The rogatory must be declared null,
and therefore cannot be taken into consideration by the magistrate, for failure to
notify the defence counsel of the date of the hearing for taking oral evidence.
Minority opinion
Justice of the Peace, Milan, 8 May 2002, sentence no. 5097 – Regarding the
exception raised by the party of nullity of the witness’s evidence through
international rogatory for violation of articles 244 and 245 of the code of civil
procedure, the magistrate notes that the person has not asked to be allowed to give
contrary evidence, and the lawyer has taken note at the hearing of the extension
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for gathering such evidence without objection, the request is therefore rejected
since there is no sign in the case of presumed violation of defence rights as
claimed by the party.
Term for contesting the nullity of a pending preliminary proceeding
Unanimous opinion
Court of Appeal, Milan, 24 February 2005, sentence no. 516 – As a
preliminary step, it should be noted that, in relation to the presumed irregularity of
the evidence obtained by foreign rogatory, requested by the U.C.I., the parties did
not object to anything at the first subsequent hearing (so further claims of nullity
cannot be considered) and did not even request renewal of such preliminary means
during the conclusions of the first level and this level.
3.12 The probatory value of the C.A.I. form signed by a foreign driver
The probatory value of the C.A.I. form (Constatazione Amichevole di Incidente or
friendly description of an accident) signed by both drivers involved in a road
accident is the subject of a lively jurisprudential discussion still not completely
over. A first solution put forward by the court of legitimacy considers the C.A.I.
form as a simple statement of fact, freely available for the magistrate’s
information, along the lines of “confessional statements made by a third party”
(Civil cassation, section III, 2 April 2002, no. 4369). According to another
opinion, two legal assumptions are involved: the first, between the parties, of an
absolute nature that does not admit of contrary evidence; the second, iuris tantum,
against the insurer, which can be overcome by contrary evidence (Justice of the
Peace, Monza, 20 May 2002, no. 829; Civil cassation, section III, 27 February
2004, no. 4007). On this point, the Sections of the court have joined together
(Civil cassation, section one, 5 May 2006, no. 10311) as a single voice stating
that:
• the C.A.I. form signed by both drivers creates an assumption iuris tantum
valid against the insurer who can overcome it by providing contrary evidence,
as tangible facts or through another assumption.
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Query
What probatory value does the C.A.I.
form have (friendly description of the
accident) printed in Italian and signed by
a foreigner?
Jurisprudence is divided on this point; on the one hand, the opinion tends towards
the absolute irrelevance of the circumstance, on the other hand, there are some
who say that, in such cases, only the hand-drawn sketch of the situation should be
taken into consideration. The latter opinion seems to be preferred.
Relevant jurisprudence
Court of Milan, 8 June 2006, no. 17752 – In cases where one of the two drivers
is a foreigner and therefore not fluent in Italian, the detailed hand-drawn sketch
forming part of the C.A.I. form constitutes an important element since the act of
drawing the sketch does not require any particular linguistic ability.
Contra
Justice of the Peace, Milan, 31 December 2009, sentence no. 30907 – The fact
that one of the two drivers is a foreigner does not affect the validity of the C.A.I.
form, even though the person is signing a sheet of paper including a declaration of
responsibility not in their own language; nevertheless they understand the contents
and are sure that the document reflects what actually happened.
3.13 Ceding credit following a road accident, material damages and injuries
First of all at this point, a distinction has to be made between material damages
and non-material damages such as injuries.
The constant jurisprudence of legitimacy, including ordinance 11095 issued by
Section III of the Supreme Court on 13/5/2009, admits the cession of credit
concerning damage to assets caused by road accidents, while to date there are no
explicit statements from the Supreme Court regarding the cession or otherwise of
credit due to injuries.
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The credit for compensation for damage to assets caused by road accidents
can be ceded ex article 1260 and subsequent paragraphs of the civil code, and
the party ceding the credit is entitled judicially to demand payment from the
debtor (Civil cassation, section III, sentence no. 52/2012 of 10/01/12).
From the viewpoint of jurisprudence, we can say that the Court of Legitimacy:
•
on the one hand, it recognises that credits for damage to assets can
be ceded; but there are no statements, favourable or unfavourable,
regarding the possibility of ceding credit for injuries even though, in the
decisions legitimising the ceding of credit for damage to assets, there is the
explicit concept that such credit is not strictly personal, and therefore we
can draw the conclusion that credit for injuries, that is, biological and
moral damages, are strictly personal;
•
while for the courts in question there are two diametrically opposed
decisions.
The magistrate’s sentence on 16/11/2010 by the court of Mantua, in judgement
RG. no. 2384/2005, affirms that entitlement to compensation (for damages other
than those to assets, consisting of biological and moral damages) cannot be
considered of a strictly personal nature since that concept is limited to credits in
which the aim of the obligation can be fully realised only through fulfilment in
favour of a specific subject; it is also necessary to point out that the transferability
of such a right can be deduced from the fact that the jurisprudence of legitimacy
has established several times that, under certain conditions, both death and
biological damages are transmissible (Civil cassation 30/10/09 no. 23053, Civil
cassation 17/1/08 no. 870, Civil cassation 28/8/07 no. 18613, Civil cassation
28/4/06 no. 9959) and also moral damage (Civil cassation 17/12/09 no. 26605,
Civil cassation 6/8/07 no. 17177, Civil cassation 31/5/05 no. 11601).
The magistrate’s decision no. 5149 of 3 May 2012, court of Milan, disagreed
with this opinion affirming that, as per the norm in article 1260 of the civil code,
credits for compensation of damages for injuries cannot be ceded since they are of
a strictly personal nature, providing a monetary equivalent for very personal rights
that have been impaired.
Article 1260
Ceding credits
The creditor can transfer the credit with charges or free of charge, even without
the consensus of the debtor, providing the credit is not of a strictly personal
nature or that the transfer is not forbidden by law.
In fact, a more precise definition of “personal assets” is contained in the
dispositions of article 179 of the civil code.
Article 179
Personal assets
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The following items are not part of the community of property and are
personal assets of the spouse:
- assets awarded as compensation for damages, as well as the pension
regarding the partial or total loss of the ability to work;
On the basis of the above dispositions of the civil code, it is clear that the injured
party’s credit regarding compensation for biological damage, moral damage, and
damage from the loss of the parental relationship must be classified as credits of a
strictly personal nature!
3.14 The indivisibility of the settlement procedure for material damages and
claims for injury damages. The U.C.I. does not allow separation of claims.
The injured party often brings an action, in cases of accidents involving personal
lesions, initially only to recover the compensation amounts regarding material
damage, reserving the right to request compensation, in a separate case, for the
injuries caused by the accident.
On this point, it is necessary to consider the situation sanctioned by the constant
jurisprudence of the Supreme Court with sentence no. 23726/2007 by the unified
sections, which states that a creditor of a certain amount of money, owed under a
single obligation, is not allowed to split the credit into many judicial requests for
settlement, contextual or staggered in time, since such a division of the content of
the obligation, operated by the creditor for his exclusive use with unilateral
modification aggravating the debtor’s position, contrasts not only with the
principle of correctness and good faith, which must distinguish the relationship
between the parties during the execution of the contract and during the judicial
action to obtain settlement, but also with the constitutional principle of a fair trial.
In other words, parcelling the judicial request for the purpose of satisfying the
credit claims is an abuse of judicial instruments that the Italian system offers the
parties, within the limits of protecting the main interests.
It follows that the request put forward a second time must be considered
non-actionable (Civil cassation, section III, 22 December 2011, sentence no.
28286).
3.15 The burden of specific contestation (article 115 of the code of civil
procedure)
The burden of specific contestation by the plaintiffs is sanctioned by article 115,
paragraph 1, of the code of civil procedure, which today, following the changes as
per article 45 paragraph 14 of law no. 69 of 18 June 2009, states that:
“except for the cases envisaged by the law, the magistrate must base their
decision on the evidence put forward by the parties or by the public prosecutor
as well as the facts not specifically contested by the plaintiff.”
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The last phrase (“facts not specifically contested”) validates the jurisprudence
of the Civil Cassation which, starting from the arrest as per unified sections,
sentence no. 761 of 2002, has affirmed the existence, in the Italian civil system, of
a burden of contestation for the parties, linked to the facts introduced by the other
party, maintaining that the deficit of contestation “makes it useless to prove the
fact since it is not controversial … forcing the magistrate to take it into account
without any need to be convinced of its existence.”
4 Settlement of damages for injuries (micro-permanent and macropermanent)
4.1 Biological damages
4.2 Damages with reduction of generic working ability
4.3 Damages with reduction of specific working ability
4.4 Coenaesthesia affecting working ability
4.5 Subjective moral damages
4.6 Existential damages
4.7 Damages by death
4.8 Damages for a ruined holiday
4 Settlement of damages for injuries (micro-permanent and macro-permanent)
4.1 Biological damages
Damages deriving from physical or psychological injuries, in other words,
causing impairment of the person’s health; such damages can be settled through
empirical assessment, through a system of tables, and have a reparatory and
compensatory function for the lesions suffered and the impairment of the injured
party’s personal assets.
In particular, biological damage is defined as follows in paragraph 2 of article 139
of the insurance code (legislative decree no. 209/2005): “biological damage
means temporary or permanent lesions to the person’s psycho-physical integrity
which can be ascertained by medical-legal means, and which have a negative
effect on the daily activities and the personal relations of the injured party’s life,
independently of any repercussions on their ability to produce income.”
With reference to the criteria for settling such damages, it is necessary to draw a
distinction between biological damage of slight entity, that is, contained within
the nine percentage points, and damage estimated to be of a higher level.
Regarding biological damage of slight entity, article 139 of the insurance code
states that such damage can be compensated by using the figures shown in a table
approved by the Council of Ministers:
Article 139
(Biological damages for injuries of slight entity)
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1. Compensation for biological damages for injuries of slight entity, caused by
accidents arising from the circulation of motor vehicles and boats, is carried
out according to the following criteria and measures:
a) permanent biological damage, and the after-effects of injuries equal to or less
than nine per cent, are compensated with an amount which increases more than
proportionately in relation to each percentage point of invalidity; the amount is
calculated by applying to each percentage point of invalidity the relative
coefficient according to the correlation shown in paragraph 6. The amount
calculated in this way is diminished with the increasing age of the subject by a
figure of zero point five per cent (0.5%) for each year of age starting from the
eleventh year. The value of the first point is equal to 783.33 euros;
b) temporary biological damage is compensated with an amount of 45.70 euros
for each day of absolute inability; in the event of temporary inability less than a
hundred per cent, the compensation corresponds to the percentage of inability for
each day.
4. With a presidential decree, after deliberation by the Council of Ministers, put
forward by the Minister of health, together with the Minister of employment and
social policies, with the Minister of Justice and the Minister of productive
activities, the decision is taken to draw up a specific table of lesions to
psychological and physical integrity ranging from one to nine points of invalidity.
5. The amounts shown in paragraph 1 are updated annually with a decree from
the Minister of productive activities, by percentages corresponding to changes in
the national cost-of-living index.
The amount defined according to the above criteria approved by the legislator,
except for the annual updating, can be personalised by the magistrate with a
maximum of 20%:
3. The amount of biological damage compensated according to paragraph 1 can
be increased by the magistrate by not more than a fifth, with a fair and motivated
statement of the subjective conditions of the injured party.
Below is an extract from the table relating to injuries of slight entity, as updated
by the Ministerial decree of 15/06/2012 in order to provide a representation of the
amounts referring to compensation for biological damage.
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Points of
invalidity
1
2
3
4
5
6
7
8
1723.33
1714.71
1706.09
1697.48
1688.86
1680.24
1671.63
1663.01
1654.39
2819.99
2805.89
2791.79
2777.69
2763.59
2749.49
2735.39
2721.29
2707.19
4073.32
4052.95
4032.58
4012.22
3991.85
3971.48
3951.12
3930.75
3910.38
5874.98
5845.60
5816.23
5786.85
5757.48
5728.10
5698.73
5669.35
5639.98
7989.97
7950.02
7910.07
7870.12
7830.17
7790.22
7750.27
7710.32
7670.37
10418.29
10366.20
10314.11
10262.01
10209.92
10157.83
10105.74
10053.65
10001.56
13159.94
13094.14
13028.34
12962.54
12896.75
12830.95
12765.15
12699.35
12633.55
9
Age
0-10
11
12
13
14
15
16
17
18
783.33
779.41
775.50
771.58
767.66
763.75
759.83
755.91
752.00
16214.93
16133.86
16052.78
15971.71
15890.63
15809.56
15728.48
15647.41
15566.33
It is important to examine the new elements published in the Official Gazette (no.
71 of 24-3-2012 - Ordinary Supplement no. 53) where, in article 32 of the
legislative decree, converted by law no. 27/2010, after paragraph three, the
following texts have been added, identified as 3 (ter) and 3 (quarter):
3-ter. “After paragraph 2 of article 139 of the code of private insurance
companies, as per legislative decree no. 209 of 7 September 2005, the following
texts have been added: "In any case, injuries of slight entity, not ascertainable
by objective clinical means, cannot give rise to compensation for permanent
biological damage";
3-quater. “Personal damages for injuries of slight entity as per article 139 of
legislative decree no. 209 of 7 September 2005, are compensated only after
medical and legal examinations whose visual or instrumental results prove the
existence of the injury.”
After much discussion, the opinion emerged that the new norms, in the light of
their reasoning and the aims of the legislator, should be understood uniformly
(therefore without any difference between the contents of paragraph 3-ter and
paragraph 3-quater), and that the most plausible interpretation is as follows: the
new law insists that damage to health of slight entity must be ascertained and
assessed by the medical examiner and the magistrate according to rigorous
scientific criteria and without there being any possibility of basing the
affirmation of the damage in question only on the victim’s statements, in
other words on suppositions, conjectures, suggestions, deductions.
With reference to more serious damages, the legislator has taken steps to clarify
and improve the certainty of entitlement, both for injured parties and for
insurance companies, by drawing up another table, according to article 138 of the
insurance code:
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Article 138
(Biological damage for more serious injuries)
1. With a decree by the President of the Republic, after deliberation by the
Council of Ministers, put forward by the Minister of health, together with the
Minister of productive activities, with the Minister of employment and social
policies and with the Minister of justice, the decision is taken to draw up a single
specific table valid throughout the territory of the Republic:
a) of lesions to the psychological and physical integrity ranging from ten to a
hundred points;
b) of the monetary value to attribute to each point of invalidity including the
coefficients of variation corresponding to the age of the injured person.
But the worthy attempt by the legislator to identify uniform criteria for
compensating biological damage was unfortunately mostly wasted since no steps
were taken for more than six years to draw up the table in question.
This delay meant that jurisprudence had to identify the criteria for compensating
damages due to major injuries – criteria which differed from region to region in
Italy.
This deadlock was challenged by a government initiative in August 2011 when a
draft table was submitted to the Council of State which, with deliberation no.
4209/2011, stated that the table was incorrect since it did not comply with
legislative decree no. 209/2005 (article 139, paragraph 6), given that the actuarial
curve used “does not seem to respond to the requirements of article 138,
paragraph 2, letter c) of legislative decree no. 209/2005” with which the legislator
stated that the single national table should be drawn up according to certain
criteria, including the fact that the incidence of damage to the personal relations of
the injured party’s life should increase more than proportionately with respect to
the increased percentage assigned to the after-effects.
The Council of State had effectively rejected the tables prepared by the
government, and this juridical opinion was matched by a political judgement in a
similar vein.
In fact, the Chamber of deputies in session no. 540 on 24 October 2011, approved
a motion that "the government should withdraw the provision which is
unjustified and harmful to the rights of injured parties, and should prepare a
new decree as rapidly as possible aimed at determining average values of
compensation for biological damage caused by serious injuries, using the tables
drawn up by the court of Milan as reference material."
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•
Tables created by the court of Milan
The Observatory for Civil Justice in Milan consists of a group of lawyers,
magistrates, managers and chancellery staff, active in Milan since the early
1990s, who have carried out initiatives aimed at recognising and discussing
organisational and interpretative questions, in order to rationalise and accelerate
the duration of civil proceedings); the group has drawn up a criterion of
compensation for damages not concerning assets, based on a table showing the
following values:
- “standard” values of compensation for biological damage linked to the
seriousness of the injury to the psychological and physical integrity of the injured
party, and their age;
- settlement of moral damage at a percentage of between 1/4 and 1/2 of the
biological damage;
- possibility of personalisation, with a maximum of 30% of the amounts awarded
as compensation for biological damage, linked to particular subjective conditions
of the injured party.
This criterion was modified in 2009 following the change of direction in the
jurisprudence of legitimacy which, by means of the four contextual sentences
(nos. 26972, 26973, 26974 and 26975 of 11 November 2008) approved the
unitary nature of non-asset damages which can longer be divided into subcategories.
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(Translation of column headings from table on previous page)
Invalidity
Point of biological damage in 2008, updated to 2011
Increase
Point of non-asset damage in 2011
Compensation: age bands 31-40
Coefficient of multiplication
Personalised increase
Invalidity
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The Observatory therefore drew up new tables which meet the requirements of
the Supreme Court, and envisage joint settlement of the following types of
damages previously recognised as autonomous:
- standard biological damage;
- personalisation of biological damage, for particular subjective conditions;
- moral damage.
This has led to the identification of:
- average monetary values, corresponding to the incidence of the injury in
“standard” terms since they recur frequently (the anatomical and functional
aspects, the relational aspects, the subjective suffering);
- a percentage increase of these average values to be used, in order to enable
adequate overall personalisation of the compensation, where the case presents
peculiarities proven by attached documents (also circumstantial) for the injured
party, regarding not only anatomical, functional and relational aspects, but also
the subjective suffering.
Therefore, the new “average” value for compensating non-asset damage has been
calculated starting from the point of biological damage in the previous tables
increased by a percentage figure relating to subjective suffering (ex moral
damages, before the 2008 sentence).
These tables also include a band of compensation values for damages from the
loss of family relations resulting from the death of a close relative, making it
possible to consider the specific aspects of a case (survival of other relatives,
cohabiting relationship with such relatives, closeness of affective relations with
them and with the victim).
Translation of above table
Updated to 2011
Non-asset damage for the death of a close relative
From / to
In favour of each parent for the death of a son/daughter
In favour of the son/daughter for the death of a parent
In favour of the wife/husband (not separated) or the surviving common-law spouse
In favour of the brother/sister for the death of a brother/sister
In favour of the grandfather for the death of a grandchild
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The Supreme Court effectively summarises the situation that has come about
due to the legislative vacuum and the “creativity” of the magistrates:
Some judiciary offices use a criterion wholly based on fairness, others
compensate damages with a “point” system, mainly based on the average of
previous decisions on the subject; some settle non-asset damages as a whole,
others distinguish between various types; some adopt a maximum and a minimum
for the personalisation of the compensation, others do not.
Also regarding the point values in the tables, there are some marked divergences
between courts which in fact give rise to a jurisprudence by areas of the country,
hardly compatible with the idea of equality: for example, it can happen that a
young person, with serious injuries and 80% invalidity, receives compensation
that ranges from 430,000 to 700,000 euros, according to the different tables used
and independently of the personalisation; for the death of a child the range can
vary from 30,000 to 300,000 euros; some courts give more weight to the death of
a child compared to the death of a spouse, while other courts do the contrary.
This is a situation which affects the basic rights of a person and weakens the
elementary principle of equality, undermining trust in the administration of
justice, threatening the certainty of entitlement, often leaving to chance the entity
of compensation to be expected, hindering conciliation and negotiated out-ofcourt settlements, at the same time fanning controversies and frequently leading
to flimsy self-serving demands (also as a result of deliberate decisions in the form
of “forum shopping”) or instrumental resistance.
Since equity also means equal treatment, compensation for non-asset damage due
to lesions of psychological and physical integrity presupposes the adoption by all
magistrates of uniform assessment parameters which, in the absence of
regulatory provisions (like article 139 of the code of private insurance
companies, for injuries of slight entity caused by the circulation of motor vehicles
and boats), can be found in the tables drawn up by the court of Milan, to be
used according to the circumstances of the actual case (Civil cassation,
sentence no. 12408/11).
On the subject of compensation for non-asset damages, alongside biological
damage it is also necessary to compensate further disadvantages appropriately.
This is what emerges from sentence no. 24016 of 16 November 2011, third civil
section, Court of Cassation.
4.2 Damage with reduction of generic working ability
Damages resulting from reduction of generic working ability, in other words, the
reduction of the injured party’s potential to carry out any type of working activity
is compensated within the framework of biological damage.
On this point, it is important to point out that, in the event of illicit lesions to a
person’s psychological and physical integrity, the reduction of generic working
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ability is legitimately compensated as biological damage – which includes all
the negative effects of the lesion on a person’s normal good health – with the
result that the damage in question cannot form part of independent compensation
as damage to assets, which would be independently settled should such a
reduction of generic working ability be associated with a reduction of specific
working ability, which in turn gives rise to a reduction in earning ability (see
Civil cassation, section III, 27 January 2011, no. 1879; Civil cassation, section III,
1 December 2009, no. 25289).
4.3 Compensation for damage with reduction of specific working ability
The reduction of specific working ability consists of the actual or potential
diminution of the injured person’s incomes due to the injuries suffered.
The code for insurance companies gives the following prescriptions regarding
compensation for this type of damage:
Article 137
Damage to assets
1. In the case of damage to a person, when the settlement of compensation also
includes the effect of temporary inability or permanent invalidity on an income
from regular employment, such income is determined, for employees, on the basis
of work income, increased by tax-exempt incomes and gross of detractions and
welfare contributions required by law, whichever is the higher over the last three
years; and for freelance workers, on the basis of net income whichever is the
higher over the last three years, amongst those declared by the injured party
regarding income tax paid by physical subjects, or by appropriate certification
issued by an employer as required by law.
2. In any case, contrary proof is admitted, but when the result shows that the
income is higher by more than a fifth compared to that resulting from the actions
shown in paragraph 1, the magistrate reports the matter to the appropriate tax
office [...]
In the event of inapplicability of the general criterion as per paragraph 1 of the
above article, for example the lack of any income, a residual criterion is
envisaged:
3. In all other cases, the income that has to be considered for the purposes of
compensation cannot be less than three times the annual amount of the social
pension.
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• Third civil section of the Court of Cassation with sentence no. 23573
of 11 November 2011: housewives are also entitled to compensation for
damage to assets.
Housework too has an economic value, so a housewife who is injured in a road
accident must be compensated not only for biological damage but also for asset
damage providing she can show tangible evidence of her reduced working ability.
In the absence of such proof, compensation for asset damage cannot be settled.
This was decided by the third civil section of the Court of Cassation with sentence
no. 23573 of 11 November 2011.
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Query
For an unemployed student, can
asset damage due to a reduction
in specific working ability be
compensated?
•
Third civil section of the Court of Cassation, sentence no. 25571 of 30
November 2011: an unemployed student is also entitled to
compensation for damage caused by reduced working ability.
An unemployed student is also entitled to compensation for damage caused by
reduced working ability. This was decided by the third civil section of the Court of
Cassation, with sentence no. 25571 of 30 November 2011.
The case involved a woman injured in a road accident while still a minor. At the
time of the first level sentence, no less than nine years after the accident, when
court consultancy was arranged, the woman was still at university and had no
income from work activity. While the first level magistrates granted compensation
for damage caused by reduced working ability, the Court of Appeal rejected this
decision, reasoning that since the woman had no work activity, she could not be
entitled to compensation for such an activity unless it actually existed.
Given that proof of damage rests on the person requesting compensation, and that
it can also be presumptive, providing the reduction in earning ability is proved, the
Supreme Court stated that, when it is necessary to calculate the unfulfilled
earnings of a minor with permanent injuries, compensation for damage
should be calculated on the forecast of future work activity, based on
educational qualifications already achieved or being achieved.
Current legislation distinguishes between generic working ability, understood as
the potential attitude to work on the part of a person who does not have, nor is
about to have, a working income, and specific working ability, that is, the
impossibility for the injured party to carry out their work activity. The generic type
is compensated as biological damage (Civil cassation, section one, 11 November
2008, no. 26973; Civil cassation, section III, 25 November 2010, no. 23259.
Conversely, the loss of specific working ability, according to the Court of
Cassation’s opinion, requires independent compensation with respect to biological
damage (Civil cassation, 18 April 2003, no. 6291, in “Arch. giur. circ. sin. str.”
2003, 948).
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
Injuries causing a reduction in specific working ability, viewed as impaired
assets, must be settled within the framework of damages.
The CTU found permanent after-effects of 27-28% and considering the important
residual function of the articulation of the left knee, asserts that there is a
reduction in the specific working ability of 20%. According to the constant
jurisprudence, the damage from unfulfilled earnings must be effectively proved by
the injured party, according to probatory rules, by providing proof that the
reduction in working ability has led to a reduction in earning capacity. In the case
in question, the injured party claims to have retired before the official date, and the
magistrate, after examining the income tax statements for the previous three years,
found 20% lower earnings, therefore similar to the percentage damage, thus
settling the relative compensation (Court of Vigevano, sentence no. 85/08).
The CTU ascertained a 10% incidence in the reduction of specific working
ability for company managers due to injury. Since the reasons for specific
impairment were not given, and the party did not show any loss of work
income after the accident, the court awarded fair compensation for the loss of
working ability amounting to 50,000.00 euros in relation to the increased
work load as a result of the proven after-effects (Court of Milan, 1472/12,
section five, east Migliaccio).
4.4 Coenaesthesia affecting working ability
Lesions that cause increased tiredness, in other words, a slower recovery of
energy, or the need for the injured party to use more physical energy to carry out a
particular task, gives rise to damage by coenaesthesia affecting working ability.
Increased wear and tear is one of the factors affecting damage to health
(biological damage) which cannot give rise to independent compensation, but
must be assessed as only one of the many components of the overall situation
which is the evaluation of damage to health.
In practice, the corresponding point of non-asset damage is given more weight.
4.5 Subjective moral damages
This is the damage that originates in the distress caused by the accident, usually
taking the form of an exclusively psychological nature with a clear element of
personal blame. Fair compensation has to be quantified taking into account the
seriousness of the problem.
Regarding this type of damage, juridical opinion is still deeply divided, in spite of
the decisions taken by the unified sections of the Supreme Court, with four
contextual sentences of identical content (nos. 26972, 26973, 26974 and 26975
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of 11 November 2008) approving the unified nature of this category of nonasset damage.
The unified sections of the Supreme Court, by means of the four contextual
sentences previously mentioned (nos. 26972, 26973, 26974 and 26975 of 11
November 2008) stated that (Civil cassation, section one, 11 November 2008, no.
26972) “non-asset damage as per article 2059 of the civil code, identified as
damage from injuries to the person without economic relevance, constitutes a
single category which cannot be divided into subcategories.”
However, it should be pointed out that in its practical application, the principles
enunciated by the unified sections are systematically adjusted by the decisions of
the Courts, the Justices of the Peace and the Supreme Court itself:
- “Nothing for the moral damage since it is only micro-permanent impairment”
(Justice of the Peace, Milan, sentence no. 7747 of 27/7/11).
- “... on this occasion, the party suffered [...] permanent after-effects quantifiable
in biological damage of 2.5%.
Given this situation, it seems fair to quantify the physical damage suffered by the
party (at the time, fifty-four years old) on the basis of the tables with the amounts
updated to 17/6/11, for an overall figure of 3,266.50 euros (of which 1,717.00
euros for biological damage, 830.25 euros for partial temporary inability, and
429.25 euros for moral damage [...].” (Justice of the Peace, Milan, sentence no.
8198 of 16/9/2011);
“That said, for the case in point, taking into account the victim’s suffering,
involving the physical impairment and the injuries caused by the accident (shown
by the effective diminishment of psychological and physical abilities determined
by the trauma and by the suffering for which, we repeat, rigorous proof must be
provided) the decision is not to award compensation for moral damage deriving
from micro-permanent impairment, due to the slight entity of the injuries caused
by the damage suffered (1.5%)” (Justice of the Peace sentence no. 8687 of
5/12/2011).
“We agree with the arguments and the conclusions reached by the CTU judging
the method to be correct and without errors of logic or any other type. Therefore,
taking into account the age of the injured party who, at the time of the accident,
was 67 years old, and applying the assessment criteria set out in the ministerial
decree (Ministry of Economic Development) of 24 June 2008, the injured party
W.N. will receive compensation for [...] biological damage of 4.5% amounting to
3,168.73 euros, and moral damage for 1,584.36 euros (according to legal
requirements as per article 2059 of the civil code and 185 of the penal code)”
(Justice of the Peace, sentence no. 25555 of 5/11/09).
4.6 Existential damage
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This refers to impairment which can be objectively ascertained (and not merely
emotive or interior) caused by reference to the “earning capacity” of the
person, which alters their habits and relationships, forcing them to change their
lifestyle and the expression and realisation of their personality in the external
world in terms of social and work relations, with consequent impairment of the
personal values guaranteed by the constitution. (Court of Modena, section I,
11/09/2007, no. 1525)
In determining the non-asset damage to be paid to the victim of a road accident, it
is not sufficient to apply the statistical tables (such as the tables drawn up by the
Court of Milan) but it is necessary to personalise the compensation bearing in
mind the particular features of the case and the true entity of the damage.
All in all – states the Court – the subject of compensation for damage should
be governed by the constitutional principle of effectiveness of compensatory
protection, therefore compensation for biological and moral damage cannot
be paltry or merely symbolical. (Civil cassation, section III, 6 June 2008, no.
15029).
4.7 Damages by death
This refers to the anguish suffered by the victim caused by physical injuries
leading to death after a brief lapse of time, also referred to as damages due to
killing or loss of life.
In jurisprudence, however, there has been – and there still is – a marked
difference of opinion on the subject of how to compensate injuries causing
immediate death or, alternatively, injuries causing death after a brief lapse of
time.
According to a first opinion, somewhat restrictive, given that death concerns a
juridical asset of life, as such different from good health (since loss of life does
not constitute the maximum lesion of the right to health), damages by death
cannot form part of biological damage (Civil cassation, work section, 27 May
2009, no. 12326).
Against this, another opinion stating that damage from immediate death must be
included in the field of moral damage and forms part of the compensation to be
considered in a unitary and all-inclusive manner, personalising the overall amount
and also taking into account the above type of damage, provided there has been a
specific and motivated request by the injured parties. Psychological suffering
characterised by maximum intensity and a limited time span, must be
compensated as moral damage, since it will not degenerate into illness giving rise
to biological damage due to the limited interval of time between injuries and death
(Civil cassation, Section III, 8 April 2010, no. 8360, and Civil cassation,
Section III, 13 January 2010, no. 458).
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To sum up, according to the above opinion, the amount of compensation for
moral damages in favour of the victim’s relatives must include not only the
amount due iure hereditario for the victim’s intense suffering before death, but
also the moral damages subiti iure proprio by the survivors, due to the loss of the
family relationship.
On this subject, the Court of Cassation, with sentence no. 8360 of 8 April 2010,
awarded the relatives of an accident victim the right to compensation as a
“hereditary entitlement” of death damages consisting of the victim’s suffering
caused by physical injuries followed by death after a brief lapse of time. This is
also known as damage by killing or loss of life.
The above sentence concerned a case where the victim’s death was not immediate,
but took place after about half an hour.
Another opinion, with a view not unlike that of the above case, allows
compensation for non-asset damage to the victim’s heirs only when death takes
place after an appreciable interval of time following the accident, since in such a
case there is effective damage to the party’s psychological and physical integrity
which lasts for the rest of their lives (Civil cassation, Section III, 17 January
2008, no. 870, and Civil cassation, Section III, 8 January 2010, no. 79).
The Supreme Court maintains that a period of six days meets this requirement and
is therefore appropriate for compensation claims.
The important element in this case is the situation of the woman’s psychological
anguish, aware of her approaching death. The magistrate’s task is therefore to
assess the amount of non-asset damage to be awarded iure hereditatis to the
victim’s relatives (Civil cassation. section III, sentence no. 4229 of 16 March
2012).
After sentence no. 6754/11, the third section of the Civil Cassation
returned to the question of compensation owed to relatives for a
victim’s death caused by injuries. Sentence no. 10107/11 deals with
the case of an accident victim who, after uninterrupted
hospitalisation for 21 days, dies of the injuries received.
Regarding the settlement of death damages, it should be noted that the calculation
of damages for family losses is based on a system of points drawn up by the Court
of Rome, updated to 2012, under which the amount to be paid is determined by
the attribution of a numerical score to be multiplied by a sum of money
representing the ideal value of a single point of non-asset damage.
The numerical score is determined in relation to the following parameters:
a) Family relationship between the victim and the survivor, on the assumption
that the damage will be greater according to how close the family ties are;
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b) Age of the survivor, on the assumption that the damage will be greater
according to how much younger the survivor is;
c) Age of the victim, on the assumption that the damage will be less according to
how much older the victim was at the time of the accident;
d) Cohabitation of the victim and the survivor, on the assumption that the
damage will be that much greater according to how frequent and constant the
cohabitation was;
e) Composition of the family nucleus, according to which the fewer relatives
who survive, the greater the damage suffered.
The calculation system also takes into account other parameters in order to assess
the compensation in relation to the true situation. In particular the cohabitation of
the victim and the surviving relative may lead to a reduction of up to one third
in the overall score; on the other hand, the fact that the victim was the only
family member and/or the only cohabitant of the survivor may lead to an
increased score.
4.8 Damages for a ruined holiday
Jurisprudence has affirmed the right to obtain compensation for damages deriving
from:
- the impossibility of enjoying a period of holiday;
- a holiday “ruined” by unforeseen events;
- or by difficulties and delays.
Various interpretations and classifications have been put forward for this type of
damage:
• sometimes it is considered a damage of origin “biological”, so to
speak, defined as emotional distress;
at other times, the loss of a holiday is considered as losing the chance
to enjoy a period of relaxation and entertainment, an opportunity that
might not come up again.
While some opinions consider a “ruined holiday” to be an element of material
damage, essentially biological in nature, deriving from a lesion made to an asset
(the holiday), not subject to immediate economic assessment, other opinions
consider it to be part of the non-asset damage, while recognising that it deserves
compensation (App. Bologna, 18 February 2004).
For example, in the case of a road accident which took place just before departure
for holidays, the Court of Milan recognised that the injuries caused a reduced
ability to enjoy the period of rest, awarding fair compensation of 500 euros. “The
reduced possibility of enjoying the holidays (which could be considered – if one
were to indulge in superfluous classification – as part of the category of biological
•
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damage due to temporary invalidity) must be compensated, according to the
magistrate, by the overall amount of 500 euros in current money” (Court of
Milan, 16 September 2005, no. 10090).
The Cassation in penal session also confirmed the possibility of compensating
the moral damage of a ruined holiday. “The magistrate’s decision is legitimate to
award fair compensation for the moral damage caused by a ‘ruined holiday’ also
in the case when the accident happened on the last day of the holiday, since the
holiday should be considered ruined not only in the final part but also as a
memory” (Cassation in penal session, section III, 18 March 2010, no. 19523;
CED Cassation in penal session, 2010, rv 247180).
5 Collaboration by the mandator for better handling of the case compared to
the preclusions of civil cases
5.1 Preclusions before court
5.2 Preclusions before Justice of the Peace
5.3 Summarised table
5.1 Preclusions before court
In order to understand how important it is for the mandator company to
collaborate actively with the mandated service agency, it is useful to examine the
current preclusions in the sentences handed down by the court.
Civil proceedings envisage peremptory terms for the preparatory phases of the
case. Fixing a peremptory term for court activities means that, once the term has
expired, there is preclusion from the proceedings according to article 153 of the
code of civil procedure, and therefore the denial of the power to exercise such
activity.
Article 166
Appearance in court of the defendant
The defendant must appear before the court via an attorney, or personally as
allowed by the law, at least twenty days before the initial hearing on the date set
by the summons, or at least ten days previously in the event of abbreviated terms
according to paragraph two of article 163-bis, that is, at least twenty days before
the hearing fixed according to article 168-bis, paragraph five, registering their file
in the chancellery containing the act of appearance in court as per article 167 with
the copy of the notified summons, the power of attorney and the documents
relating to the case.
Article 167
Statement of defence
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In the statement of defence, the defendant must produce all the defence
material taking a position on the facts of the case on which the request is
based, providing personal details, tax code, the evidence to be presented, and the
documents put forward as communication in order to formulate conclusions.
Under penalty of forfeiture, the defendant must put forward any
conventional requests and the exceptions to the proceedings that cannot be
deduced by the court offices.
If the subject or the title of the conventional request is omitted or absolutely
uncertain, the magistrate will declare it to be null and will fix a peremptory term
for the defendant to complete it. The forfeitures already matured remain fixed, as
well as the rights acquired before the integration.
If the defendant intends to sue a third party, they must declare their intention
in the court appearance document and take steps as per article 269.
Article 269
Suing a third party
[...] The defendant who intends to sue a third party must, under penalty of
forfeiture, declare their intention in the court appearance document and at the
same time they must ask the magistrate to postpone the first hearing in order to
enable the third party to be summoned, as per article 163-bis. [...]
Therefore, in the court appearance document registered in good time, the
defendant must:
- put forward the exceptions to the proceedings that cannot be deduced by the
court office;
- put forward any conventional requests;
- declare the intention to sue a third party.
5.2 Preclusions before Justice of the Peace
With reference to sentences by Justices of the Peace, the question of preclusions is
governed by article 320 of the code of civil procedure which states:
Article 320
(negotiation of the case)
During the first hearing, the Justice of the Peace freely interrogates the parties and
attempts to achieve conciliation.
If conciliation is successful, a written summary of the hearing is made, as per
article 185, last paragraph.
If conciliation is not successful, the Justice of the Peace invites the parties to state
clearly the facts that each puts forward as the basis of the requests, defence
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statements and exceptions, to produce the documents and to request the
evidence to be used.
When the situation is clear from the activities of the parties in the first hearing, the
Justice of the Peace fixes one more hearing in order to provide a further
opportunity
to
produce
and
request
evidence.
[...]
Reading article 320 of the code of civil procedure, makes it clear that the legislator
was trying to simplify and speed up proceedings before the Justice of the Peace,
compared to ordinary cases.
In fact, there is a single moment of time in the proceedings for the first appearance
hearing and the negotiation hearing.
Article 320 of the code of civil procedure states that the Justice of the Peace in the
first hearing freely interrogates the parties and attempts to make a conciliation.
It should be noted that this hearing represents the limit for the preliminary
requests. Beyond this point, all further preliminary activities are considered to be
late, and should they be admitted, the definitive sentence is nullified for violation
of a standard norm.
5.3 Summarised table for better practical collaboration between the
mandator and Avus to obtain a positive result
While handling cases relating to compensation for road accidents, we often find
ourselves dealing with situations where the number of injured people and the
entity of the damages sustained mean that the insurance limits set by law are
insufficient.
This problem creates several important requirements for Avus Italia Srl and the
lawyer who is dealing with the case in court, namely:
1) always consign all the documentation relating to how the accident
happened including the insurance statement, photographs of the damage to the
foreign vehicle, indications of any witnesses, or statements written by witnesses
(with details of identity card) regarding how the accident happened, state whether
the insured person or the injured party has made damage claims for the accident in
question;
2) obtain a copy of the insurance policy as soon as possible so that the
insurance limit can be determined. On the whole, juridical practice tends towards
the idea that anyone who contests the entity of the insurance limit has to prove the
existence of a higher limit; however, since Italy does not have specialised sections,
with very few exceptions, dealing with responsibilities deriving from traffic
circulation, it is advisable to expect uncertainty amongst the magistrates and to
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clarify immediately this important aspect by producing a copy of the foreign
insurance policy;
3) make all the established insurance limits available to those who are
entitled to compensation by means of the “releasing deposit” as per the code of
the insurance companies, or the “releasing sequester” as per the code of civil
procedure;
4) Enable Avus Italia Srl to designate a fiduciary lawyer to follow the penal
action (if required) against the injured party;
5) Remind the injured party or the insured person that if the documents
relating to the damage are not transmitted as quickly as possible, the lawyer
dealing with the case will not be able to submit them to the magistrates;
6) Ensure that the mandator does not issue power of attorney to lawyers to
represent the mandator’s interest when the U.C.I. is already involved.
6 Applicable rights and compensation in favour of foreign citizens
6.1 A first solution: the socio-economic context of the place where the damaged
party resides is irrelevant as regards the settlement of damages not involving
property.
6.2 The preferable solution: the amount of the damage claim must always be
commensurate with the socio-economic conditions of the place where the
damaged party normally resides.
6.3 A case in point subject to the fourth directive (vehicles).
6.4 Residual questions not subject to the fourth directive (vehicles).
6.5 EU regulation no. 44/01: questions regarding the applicability of this norm to
road accidents.
6.6 Direct action against the mandator for the settlement of accident claims, and
the fifth directive.
6.1 A first solution: the socio-economic context of the place where the
damaged party resides is irrelevant as regards the settlement of damages not
involving property.
The expression “international private law”, first used by judge Joseph Story, a
member of the U.S. Supreme Court, indicates the complex legislation governing
private relationships characterised by “extraneousness”, in other words, points of
contact with foreign juridical systems (citizenship, place where the relationship
exists, place where the assets are located) enabling courts to resolve possible
conflicts of law by identifying the juridical system applicable to the case in point.
Clearly there is no doubt that accidents involving foreign counterparts have some
of the above extraneous elements. Until 2007, the reference source was article 62
of law no. 218 of 31 May 1995, entitled obligations arising from accidents and
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illicit acts, which established a double criterion for identifying the juridical
system to be applied:
• firstly, the criterion for the place of the event was taken to be the country
where the harmful consequences of the accident arose (Civil cassation,
unified sections, 21 February 2002, no. 2512; Civil cassation, section III, 8
May 2002, no. 6591)
• secondly and subordinately, the injured party’s decision to opt for the
application of the law of the country where the accident happened, clearly
when this is more favourable (Mosconi, “Diritto internazionale privato e
processuale”, 1997, page 164).
REFERENCE NORMS
Article 62 of law no. 218 of 31 May 1995
Responsibility for an illicit act is governed by the law of the country where
the event took place. However, the injured party can request application
of the law of the country where the harmful consequences of the accident
arose.
If the illicit act involves only citizens residing in the same country, the laws
of that country apply.
It is logical to adjust the compensation for damages with reference to the socioeconomic parameters of the country of residence also considering the different
cost-of-living levels in the various countries.
On the other hand, article 62, paragraph two, states that “If the illicit act involves
only citizens residing in the same country, the law of that country applies”; in
other words, if the person causing the damage and the injured party are both
citizens residing in the same country, the Italian magistrate, without any
discretional power,
has to apply the law
REFERENCE NORMS
of that country.
Considering “14 Regolamento Roma II”
The above
The requisite of certain entitlement and the need to reach fair decisions in
disposition has a
court cases are essential elements in the administration of justice. The
residual application
above regulation sets out the appropriate criteria for achieving these
objectives. Therefore, this regulation provides a general rule together with
following the
specific rules and, in certain cases, a “safeguarding clause” enabling the
adoption in January
magistrate to move away from the rules when it is clear from all the
2009 of Regulation
circumstances that the illicit act shows a closer link with another country.
This set of rules creates a flexible framework for resolving conflicts of
no. 864/2007,
laws. Furthermore, it enables the magistrate to deal with individual cases
known as
in an appropriate manner.
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“Regolamento Roma II”, aimed at introducing uniform norms for resolving
conflicts of laws regarding extra-contractual obligations. The declared
intention of the EU legislator is that the courts of all the member States should
apply the same law in cases of cross-border controversies regarding civil
responsibility in order to foster the mutual recognition of judicial decisions
throughout the European Union.
So, according to article 4, first paragraph of the Regulation, “extra-contractual
obligations
deriving
REFERENCE NORMS
from an illicit act” are
governed by the law of
Considering “17 Regolamento Roma II”
the country in which
The applicable law should be decided on the basis of the place where the
the accident took place;
accident took place, irrespective of the country or countries where the
indirect consequences might arise. Therefore, in the event of lesions to
as far as localisation is
the person involved or damage to assets, the country where the accident
concerned,
it
is
took place should be the country where the personal injuries or the asset
irrelevant to consider
damage occurred.
not only the place
where the accident happened (“the act that gave rise to the damage”) but also the
place, or places, where the indirect consequences came to light. In other words,
the EU legislator had to choose between the theory of conduct and the theory of
the event (Davì, “La responsabilità extracontrattuale nel nuovo diritto
internazionale privato italiano”, Turin, 1997). The EU legislator tended towards
the second situation (lex loci damni) thus reflecting the function that “aquiliana”
responsibility is required to deal with in modern privatised systems. Rather than
blaming the anti-juridical conduct, it offers the means to react and to repair the
lesion to protected interests and to re-assign the resources unjustly subtracted from
the victim. In this sense, choosing the accident as the crucial moment of the illicit
act goes well with the trend towards focusing on the lesions to the person or
damage to assets and the need for compensation, rather than on the reprehensible
conduct that caused the injury (Kreuzer, Tort liability in general, in the
unification of choice of law rules, p. 62).
Article 4, second paragraph, of the “Regolamento Roma II”, going against the
general rule, states that if the presumed perpetrator of the act and the injured party
both habitually reside in the same State (no mention is made of citizenship,
differing from article 62, paragraph 2, law no. 218 of 31 May 1995,) at the time
when the accident occurred, the illicit act will be governed by the law of that
country (lex domicilii comu nis partium). This is a traditional exception to the
criterion of lex loci damni (or lex loci commissi delicti) to be found in many
international and domestic privatised systems whose function is to preserve the
expectations of the parties by ensuring the application of the rules in force in the
social ambience to which they belong.
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Finally, article 4, third paragraph, of the Regulation establishes that, if the
complex circumstances of the case show that the illicit act is clearly linked
more closely with a country that is different from that indicated in paragraphs one
or two, then the law of that different country must be applied. The norm, not
without precedents in the systems of international private law of member States,
constitutes an important instrument of flexibility and shows the legislator’s
intention to allow “individual cases to be treated in an appropriate manner”
(Briere, “Le reglement CE n. 864/07 du 11 juillet 2007 sur la loi applicable aux
obligations non contractuelles, in Journ. droit intern., 2008, p. 52”).
Relevant jurisprudence
Court of Milan, ordinance, 29 March 2004 – Since the illicit act (road accident)
and the damage arising from it (driver’s death) took place in Hungary, the law of
Hungary must be applied, according to article 62 of law no. 218 /95.
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Query
Can the Italian Central Office
(U.C.I.) be considered a substantial
party regarding the application of
paragraph two, article 62, law no.
218 of 31 May 1995, or of the
“Regolamento Roma II”?
This quaestio iuris was examined by the Court of Appeal in Milan (the only
precedent available) which, going against what was decided by the first level
court, established that the national bureau cannot be qualified as an “involved
party” according to article 62, paragraph two, law no. 218 of 31 May 1995, since it
is merely a court representative of the foreign insurance company; consequently
the participation of the Italian Central Office does not prevent the application of
the foreign legal system when all the other parties have the same nationality and
reside in that country (Court of Appeal, Milan, 23 February 2010, no. 351).
Recent pronouncements on juridical legitimacy state that article 62, paragraph
two, law no. 218/1995 cannot be applied in cases where the U.C.I. is summoned
to appear in court. The reasoning is that the Italian bureau’s obligation for
compensation is based on a provision of Italian law, so the law of the country
where the accident happened should be applied, according to article 61 of the
above law (“Dealing with other people’s affairs, enriching oneself without cause,
payment of debts and other legal obligations not otherwise governed by this law,
are subject to the laws of the country where the event giving rise to the obligation
took place”).
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Relevant jurisprudence
Court of Appeal, Milan, 23 February 2010, no. 351 – The Italian Central Office
cannot be qualified as an “involved party” as per article 62, paragraph two, law no.
218 of 31 May 1995, since it merely represents the foreign insurance company in
court.
Civil cassation, section 3, no. 7932 of 5 April 2012 – With respect to the
compensation request put forward by the injured parties, the U.C.I. acts as the
guarantor ex-lege, and therefore can claim against the foreign insurance company
(Civil cassation 25/9/09 no. 20667 and Civil cassation 3/6/1996 no. 5078 both in
motivation). Therefore the U.C.I. is not only a domicile ex-lege, but also a
legitimate passive party (article 126.4 letter c of the code for insurance
companies), in practical terms, the guarantor ex-lege, with its own obligation, in
addition to that of the foreign insurance company, against which it can make
claims if necessary. The UCI’s obligation to compensate the injured parties is
based on the obligatory relationship which is set up, thanks to the convention
between national bureaux and the national law (as per articles 125 and 126 of the
code for insurance companies). This means that, in fact, there are no grounds for
the application of article 62.2 of law no. 218 of 1995.
Contra
Court of Milan, 9 July 2009, no. 8337 – In the case under consideration, it is not
possible to apply article 62, paragraph 2, law no. 218 of 31 May 1995, since all the
parties involved do not have the same residence and nationality, and the U.C.I. is a
juridical subject under Italian law.
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IDENTIFYING THE APPLICABLE LEGAL SYSTEM FOR
ACCIDENTS THAT HAPPENED BEFORE 11 JAN 2009
AN ACCIDENT IN ITALY Reference norms:
Applicable legal system:
INVOLVING CITIZENS
• Article 62, first
•
Law of the place
OF DIFFERENT
paragraph, law no. 218
where the harmful
NATIONALITIES
consequences arose.
of 31 May 1995.
RESIDING IN
•
Law of the place
DIFFERENT
where the accident
COUNTRIES
occurred.
AN ACCIDENT IN ITALY Reference norms:
Applicable legal system:
INVOLVING CITIZENS
• Article 62, second
•
The law of that
OF THE SAME
paragraph, law no.
country applies.
COUNTRY AND
218 of 31 May 1995.
•
The law of that
RESIDING THERE
country also applies when
U.C.I. is summoned, since
it is a court representative
which cannot be qualified
as an involved party, as
per international private
law.
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
IDENTIFYING THE APPLICABLE LEGAL SYSTEM FOR
ACCIDENTS THAT HAPPENED AFTER 11 JAN 2009
AN ACCIDENT IN
ITALY INVOLVING
CITIZENS OF
DIFFERENT
NATIONALITIES
RESIDING IN
DIFFERENT
COUNTRIES
Reference norms:
Applicable legal system:
• Article 4, first
•
The country
paragraph,
where the damage took
“Regolamento Roma
place, independently of
II”.
the country where the
event happened that gave
rise to the damage, and
irrespective of the country
or countries where the
indirect consequences of
the accident came to light.
•
If the complex
circumstances of the case
clearly show that the illicit
act has close connections
with a country different
from that as indicated by
paragraphs 1 or 2, the law
of that different country
applies.
AN ACCIDENT IN
ITALY INVOLVING
PEOPLE WHO ARE
RESIDENTS OF THE
SAME COUNTRY
Reference norms:
Applicable legal system:
• Article 4, second
•
The law of that
paragraph,
country applies.
“Regolamento Roma
•
If the complex
II”.
circumstances of the case
clearly show that the illicit
act has close connections
with a country different
from that as per
paragraphs 1 or 2, the law
of that different country
applies.
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Query
In settling damages for a foreign citizen not
resident in Italy, does the magistrate have to
adjust the amount, or not, to the socioeconomic context where the injured party
normally lives?
6.1 A first solution: the socio-economic context of the place where the
damaged party resides is irrelevant as regards the settlement of damages not
involving property.
A consolidated juridical opinion maintains that the place where the injured party
normally lives is irrelevant to the personalisation of the non-asset damages
awarded (Court of Cuneo, 10 March 2010, no. 119).
Compensation that is not proportional to the cost-of-living in the various countries
is also justifiable in light of the mechanism of mutual recognition (and trust) of the
national compensation systems, identified and supported by the EU decision in
2003 (the reason why each State belonging to the system accepts the application of
the law of the other country, regarding the settlement of damages). (Civil
cassation, section III, sentence no. 7932/2012)
6.2 The preferable solution: the amount of the damage claim must always be
commensurate with the socio-economic conditions of the place where the
damaged party normally resides.
Another opinion states that, in order to determine the amount of non-asset
damages, the magistrate cannot avoid considering the socio-economic features of
the country where the injured party normally lives (Court of Appeal, Bari,
ordinance, 31 October 2007; Court of Conegliano, 8 October 2008, no. 334;
Court of Turin, 6 May 2003, no. 3734; Court of Turin, 21 April 2004, no.
35723).
Since compensation for damages has a reparatory function, it cannot ignore the
economic context in which the injured party normally lives, mainly because “the
sense of fairness deriving from the compensation settlement cannot be different in
consideration of the geographical area where the injured party lives” (Civil
cassation, section III, 14 February 2000, no. 637).
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
Relevant jurisprudence
Opinion tending against adjustment
Civil cassation, Section III, sentence no. 7932/2012 - Compensation that is not
proportional to the cost-of-living in the various countries is also justifiable in light
of the mechanism of mutual recognition (and trust) of the national compensation
systems, identified and supported by the EU decision in 2003 (the reason why
each State belonging to the system accepts the application of the law of the other
country, regarding the settlement of damages).
Opinion tending towards adjustment
Court of Turin, 20 July 2010, no. 4932 – The need to award all injured parties
the same compensation cannot be satisfied by the mere attribution of the same
monetary value independently of the economic context in which the injured party
lives, because such a situation would create an unjustifiable enrichment for those
who live in countries with depressed economies where average prices of the cost
of living index are lower than in Italy and other countries, as is notoriously the
case with Albania. Therefore it is important to establish the purchasing power of
the currency in which the settlement is made, between the two countries involved.
This can be done by using the conversion coefficients shown in the decree issued
by the Ministry of Employment on 12 May 2003 for determining equivalent
income levels for each State, as well as article 38 of law no. 448/2001 for
calculating pension treatments in each foreign country, giving a purchasing power
equal to that of their own social pension awarded and spent in Italy.
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Query
Regarding the adjustment to the socioeconomic context where the injured party
normally lives, is it subject to the arbitrary
decision of the magistrate ?
The magistracy maintains that the adjustment in question must be calculated with
reference to the conversion coefficients shown in the decree issued by the Ministry
of Employment on 12 May 2003 for determining the level of equivalent incomes,
for each State, and to the provisions of article 38, paragraph 1, law no. 448 of 28
December 2001. Even though such coefficients are intended to be used for
calculating pension treatments in each foreign country, giving a purchasing power
equal to that of their own social pension awarded and spent in Italy (Court of
Turin, 20 July 2010, no. 4932; Court of Monza, 2 November 2007, no. 3302),
they can well be applied, with similar reasoning, to the process of matching the
settlement of damages to the socio-economic context where the injured party
normally lives.
Relevant jurisprudence
Court of Turin, 20 July 2010, no. 4932 – It is necessary to establish the purchasing power of the
currency in which the settlement is made for the two countries involved, making use of the
conversion coefficients set out in the decree issued by the Ministry of Employment on 12 May
2003 for determining the level of equivalent income, for each State, and as per article 38 of law no.
448/2001 for calculating pension treatments in each foreign country, giving a purchasing power
equal to that of their own social pension awarded and spent in Italy.
Court of Monza, 2 November 2007, no. 3302 – The adjustment, far from being merely an
arbitrary decision by the magistrate, must be made using the conversion coefficients set out in the
decree issued by the Ministry of Employment on 12 May 2003 for determining the level of
equivalent income, for each State, and as per article 38 of law no. 448/2001 for calculating pension
treatments in each foreign country, giving a purchasing power equal to that of their own social
pension awarded and spent in Italy.
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AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”
6.3 A case in point, subject to the fourth directive (vehicles).
?
il
Quesito
Query
To whom should the request for compensation
be addressed when a vehicle registered in Italy
is involved in an accident in a foreign
country?
Following the introduction of the fourth directive (vehicles), if the accident took
place in the territory of a country belonging to the Charter system, between two
vehicles registered in one of the States forming part of the European Economic
Space, the injured party can request compensation for damages from the person
responsible for the accident, by addressing the insurance company where the
vehicle that caused the accident is insured, or the mandated representative of the
insurance company in the country where the injured party lives.
The above-mentioned directive introduced the obligation (article 4) for all
insurance companies with registered offices in a State of the European Economic
Space, who provide guarantees against risks deriving from vehicle circulation, to
nominate a mandated representative, with full powers to represent the mandating
company in all matters concerning damages in the out-of-court phase, for accident
compensation in all States of the European Economic Space apart from the State
where their head office is located.
On receiving the request, the mandated representative must formulate, within
three months (article 4 of the directive), their offer of compensation, or they must
inform the injured party in writing of their refusal to do so, giving reasons such as:
- failure to ascertain responsibility
- contested responsibility
- failure to quantify the damage.
If the mandated representative does not formulate the offer in good time, or does
not give sufficient reasons for refusing to do so, or if the foreign insurance
company has not appointed a mandated representative in Italy (remembering that
it is always possible to involve the competent judicial authorities as per EU
regulation no. 44/01 – more about this later), the injured party must send a
registered letter with notification of receipt to what is known as the indemnity
body in their own country (in Italy this function is carried out the “Concessionaria
Servizi Assicurativi Pubblici S.p.A.”) who will take on the task of handling the
accident claim directly (article 6 of the directive) with the obligation to take a
decision within sixty days of receiving the request.
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Translation (from left to right):
Settlement and substitution / Italian indemnity body / substitutes / Foreign
indemnity body / Settlement of damages / Insurance company of person
responsible for accident / Person responsible for accident / The injured party
6.4 Residual questions not subject to the fourth directive (vehicles).
Since the fourth directive (vehicles) is a European norm, clearly it does not apply
in all the cases where one of the vehicles involved in an accident is registered in a
State not forming part of the European Economic Space.
If the accident was caused by a vehicle not registered in one of the countries of the
European Economic Space but, anyway, took place on the territory of a State
which is a member of the Green Card system, the request for compensation should
be addressed to:
• the insurance company of the person responsible for the accident
• the national Bureau of the State where the event occurred if the vehicle that
caused the accident is registered in another country.
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ACCIDENTS THAT HAPPEN ABROAD
AN ACCIDENT THAT HAPPENED If the vehicle is registered in the
If the vehicle is registered in a different
ABROAD WITH A VEHICLE THAT same country where the accident
country with respect to where the
WAS NOT REGISTERED IN A
happened
accident happened
COUNTRY OF THE EUROPEAN
•
The injured party must
•
The injured party must address
ECONOMIC SPACE
address the request for compensation the request for compensation to the
to the insurance company of the
Bureau of the country where the
person responsible for the accident.
accident happened.
On the other hand, if the accident took place in a country which is not a member
of the Green Card system, the person who claims to be injured can address the
request against the responsible party to the insurance company that provided
guarantees at the time of the accident, taking into account the legislation of the
country where the accident happened or, in any case, based on the norms of
international private law.
If the accident took place in one of the countries of the European Economic Space
but with a vehicle which is unidentified, uninsured, or for whom it is impossible
to identify the insurance company within two months of the accident, then the
person involved can address the request for compensation to the Italian Central
Office, which will handle the accident as the national indemnity body, instead of
the “Concessionaria Servizi Assicurativi Pubblici S.p.A.” – which manages the
guarantee fund for victims of road accidents.
6.5 EU regulation no. 44/01: questions regarding the applicability of this
norm to road accidents.
It has already been pointed out that the fourth directive (vehicles) has an explicitly
out-of-court perspective since it does not give the person involved the possibility
of pursuing the case judicially in their own country against the decisions regarding
the settlement (in other words, whether an appeal is justified or not, or whether
the offer of compensation is appropriate). On this subject, the EU Regulation no.
44/01 of 22 December 2000, which came into force on 1 March 2002, identifies
the criteria of connection for choosing the appropriate international forum.
Regarding general criteria, the above EU norm is based on the principles set out
during the Brussels convention (article 2 on general jurisdiction at the
defendant’s place of residence, and article 5 on special jurisdiction at the
defendant’s place of residence), however it introduces a wholly new element when
it states that (combining the dispositions of article 11, second paragraph, and
article 9, first paragraph, letter b) the jurisdiction of the forum of the party’s
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domicile at the request of the injured party against the insurance company,
without placing said party in the category of contracting party for the insurance
policy of the insured person or beneficiary.
But the injured party, according to article 9 of the Regulation, is neither the
insured person nor the beneficiary and, therefore, doubts have been expressed
about whether this disposition can be applied when the judicial action is brought
by the person who has suffered an injury in a road accident.
6.6 Direct action against the mandator for the settlement of accident claims,
and the fifth directive.
Article 151 and subsequent articles of the code for insurance companies bring
together the dispositions as per articles 2 and subsequent articles of legislative
decree no. 190 of 30 June 2003 (entitled “Actuation of directive 2000/26/CE
regarding insurance for civil responsibility arising from the circulation of motor
vehicles, which also modifies directives 73/239/CEE and 88/357/CEE).
With this legislative decree, the legislator implemented what is known as the
Fourth Directive (vehicle insurance), on the settlement of damages caused by road
accidents taking place in a member State of the European Union, different from
that where the injured party normally lives.
The system introduced by directive no. 2000/26, actuated by legislative decree no.
190/03 and now contained in, obligates all “stable” insurance companies (that is,
operating as a stable organisation in an EU country) to appoint in each of the other
EU countries, a mandated representative for the settlement of damages, to whom
injured parties can address their claims.
The discipline regarding “intra-community road accidents” (as per article 152 and
subsequent articles of the code for insurance companies) assumes the joint
existence of all the following elements:
(a) the victim resides in an EU member country;
(b) the damage was caused by a vehicle that:
(b’) is insured by a stable company in an EU country which is different
from where the victim normally lives, in other words, a company with head office
in a third country which is also a member of the green card system;
(b’’) is normally kept in an EU country which is different from where the
victim normally lives.
The last paragraph of article 151 of the code for insurance companies enables the
victim to bring an action for compensation directly against the insurance company
of the person responsible for the accident.
The mandated representative for settling the damages is a body representing the
insurance company, which is required by law to:
(a) receive the request for compensation;
(b) prepare the case and put forward an offer of compensation;
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(c) pay the indemnity if it is accepted by the victim.
To carry out these activities, the mandated body must have the power to
represent the insurance company, so that all actions taken are imputable to the
insurance company itself. Therefore, the relationship is a mandate with
representation.
The law is somewhat ambiguous (or rather, reticent) about the possibility of the
victim being able to bring an action directly against the mandated body, in the
name of and on behalf of the insurance company.
This possibility would seem to be excluded by article 153 of the code for
insurance companies, which states that if the mandated body does not make an
offer within three months of receiving the request for indemnity, “the injured
party can address the Italian indemnity organisation as per article 298”.
Some opinions on this subject tend to agree with the exception of lack of passive
legitimacy put forward by the mandated organisation.
This solution was adopted by the magistrate Dott. Caniato who, in an action
brought by an injured German person resident in Italy following an accident that
happened in Germany, against the driver who caused the accident and Avus Italia
Srl, the mandated organisation in Italy of the foreign insurance company, made the
following statement:
“Whereas Mrs Martina Enrica Elly Gotze has brought an action before this court
against the company Avus Italia Srl and Mr Jurgen Eisenhut, requesting
compensation of damages relating to assets and non-assets, suffered by herself
and her three children (minors) as a result of a road accident in Germany on
14/04/2009, as well as asset damage of lost earnings suffered by her husband Mr
Vinci quantified in Euro 4,000.00 (as assignment of credit between spouses).
The Avus company appeared before the court claiming lack of passive legitimacy
since it is a service company acting merely as a mandated organisation only to
deal with controversies ex article 152 of the code for insurance companies.
Avus produced its chamber of commerce certificate in court [...] showing that it is
a service company and not an insurance company “tacitly excluding the activities
for which the law requires prior authorisation, permits or membership of
professional associations. [...]
However, the court feels there are good reasons to summon the insurance
company of the vehicle driven by the defendant Mr Eisenhut Juergen, in light of
the considerations on passive legitimacy put forward in the statement of defence
by Avus Italia Srl.
Given that the provision of article 107 of the code of civil, is aimed at protecting
the public interest and the economy of sentences, it is an instrument that can also
be used in controversies when “the magistrate feels bound to induce or authorise
the injured party to extend their request against the third party indicated as
policy-holder in the relationship” (Civil cassation no. 04/707) [...]
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The court orders the intervention of the insurance company for civil
responsibility in road accidents of the defendant Mr Eisenhut Juergen,
indicated by the defendant as WGV under German law” (Court of Busto Arsizio,
detached section in Gallarate, ordinance of 17 January 2012, Dr Caniato).
On this point, the magistrate Dr Costa of the court of Pordenone stated, as part of
the sentence R.G. 581/2011, that only the mandated organisation was taken to
court.
Regarding the lack of passive legitimacy put forward by the defendant Avus Italia
Srl, the magistrate authorised “the Albe Assurance company of Basle to be
summoned to court” at the request of the other party, with an ordinance issued on
27 May 2011.
7 The direct indemnity
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