In a decision published in March 2021 (see BGH, judgment of 10.03.2021 – IV ZR 309/19), the BGH clarified that the obligation of any liability insurer to assume liability must be examined separately even if a claim for damages is established in the insolvency table. In the case at hand, insolvency proceedings were opened over the carrier’s assets before a transport claim was settled. The insolvency administrator established the injured party’s claim for damages in the insolvency table. The injured party then turned to the insolvent carrier’s transport liability insurer with reference to the established claim.
If insolvency proceedings are initiated against the assets of a tortfeasor with liability insurance, the injured party is generally entitled to a claim against the liability insurer. From a legal perspective, this arises from a right to separate satisfaction of the insolvency estate’s claim for indemnification against the liability insurer. The BGH has now ruled that the factual justification of the claim for damages must still be reviewed even if the insolvency administrator has recognized the claim and established it in the insolvency table. The liability insurer is not bound by the findings of the insolvency administrator.
Conclusion
The decision, which is of equal interest to transport and insolvency lawyers, is convincing and clarifies an issue that has been the subject of some debate in the literature. It is up to the liability insurer to decide whether it recognizes the claim for damages. A decision by the policyholder or its insolvency administrator is not sufficient to bind the liability insurer.
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Dr. Jan Hermeling
hermeling@tigges.legal
+49 211 8687 138