Direct Action Insurer: Direct Claim against Liability Insurer

As an injured party, you have the right under certain circumstances to directly address the insurer of the liable party. This right is called the direct action and is statutorily regulated in article 7:954 of the Dutch Civil Code. This option provides important protection for victims of damage.

What is a Direct Action against the Insurer?

A direct action against the insurer is the right of an injured party to directly institute a claim with the liability insurer of the damage causer, without the intervention of the insured itself. This means that as a victim, you can address not only the damage causer but also directly their insurer.

This right is laid down in article 7:954 paragraph 1 DCC: The injured party has its own right to payment vis-à-vis the insurer up to the amount of the insured sum. This provision gives you as an injured party an independent claim right that is separate from the insured.

Why is the Direct Action Insurer Important?

The direct action offers various benefits for injured parties:

Better certainty of payment: Insurers generally have more financial capacity than individuals or small businesses
Faster handling: You do not have to wait for the liable party to compensate the damage
Protection in case of bankruptcy: Even if the insured goes bankrupt, your claim against the insurer remains
Direct negotiation: You can directly discuss damage compensation with the insurer

Statutory Basis: Article 7:954 DCC

Article 7:954 DCC forms the legal basis for the direct action. The main provisions:

Paragraph 1: The injured party has its own right to payment vis-à-vis the insurer up to the amount of the insured sum.

Paragraph 2: The insurer may invoke the same defences against the injured party as against the insured, with the exception of defences relating to the insured's non-compliance with obligations towards the insurer.

Paragraph 3: In the event of bankruptcy or suspension of payments of the insured, the injured party may still exercise its claim against the insurer (separatism).

Scope of the Direct Action

The direct action applies to various types of liability insurances:

Motor vehicle liability insurance (mandatory motor vehicle liability insurance)
Business liability insurance (AVB)
Professional liability insurance
Private liability insurance (AVP)
Product liability insurance

Conditions for a Direct Action Insurer

To successfully institute a direct action against the insurer, various conditions must be met:

1. Liability of the Insured

There must be liability of the insured for the damage incurred. This means you must be able to demonstrate that:

The insured has committed a tort (article 6:162 DCC)
There is contractual liability
Statutory liability exists (e.g., risk liability)

2. Valid Insurance Contract

A valid liability insurance must exist that covers the damage. Check whether:

The insurance was in force at the time of the damage-causing event
The damage-causing event falls under the policy coverage
The insured has paid its premiums
No exclusion grounds apply

3. Coverage under the Policy

The damage must fall within the coverage of the insurance agreement. Note:

Insured amounts and maxima
Exclusions in the policy conditions
Deductibles
Territorial limitations

Practical Examples of Direct Action

Example 1: Traffic Accident

You are hit by a motorist who runs a red light. You suffer whiplash complaints and your car is a total loss. Instead of personally addressing the driver, you can directly file a claim with their motor vehicle liability insurer. The insurer is obliged to compensate your damage up to the insured amount.

Example 2: Workplace Accident

A plumber causes water damage during work in your home by damaging a pipe. You can directly address the business liability insurer of the plumbing company, without first having to summon the company itself.

Example 3: Professional Error by Lawyer

Your lawyer makes a mistake as a result of which you lose a case and suffer significant damage. You can directly address the professional liability insurer of the lawyer for compensation of your damage, even if the law firm has since gone bankrupt.

Example 4: Product Liability

A defective product from a manufacturer causes damage. Even if the manufacturer itself is no longer solvent, you can address the product liability insurer via direct action.

Defences of the Insurer in Direct Action

The insurer may defend against your direct action with the same arguments it could also raise against the insured, such as:

No liability: The insured is not liable for the damage
Exclusions: The damage falls under an exclusion ground in the policy
Limits: The damage exceeds the insured amount
Causality: There is no causal connection between the conduct and the damage

Important: The insurer cannot invoke defences that exclusively relate to the relationship with the insured, such as:

The insured has not reported the damage
The insured has overdue premium payments
The insured has breached its duty of disclosure

These internal defences cannot be invoked against you as an injured party.

Comparison: Direct Action vs. Indirect Claim

| A

### Arslan & Arslan Advocaten **Arslan & Arslan Advocaten** provides professional legal guidance and support for your legal matters. - Website: [www.arslan.nl](https://arslan.nl) - Email: [info@arslan.nl](mailto:info@arslan.nl) - Free initial consultation