Which pre-existing conditions you must disclose, why vague questions work to the detriment of the insurer, and where the line between disclosure and fraudulent misrepresentation lies.
Is your disability insurance company accusing you of concealing an illness when you took out the policy? A breach of the duty to disclose only leads to a loss of coverage if the insurer specifically asked about it, you are at fault, and they properly informed you of the consequences. Especially with vague questions, minor issues, and long-standing ailments, the accusation often doesn't hold water. Rogert & Ulbrich will review your case and defend your insurance coverage.
What the pre-contractual duty of disclosure actually requires
The pre-contractual duty of disclosure obligates you to truthfully disclose certain circumstances when taking out insurance. This is regulated in Section 19 of the German Insurance Contract Act (VVG). A crucial limitation, which many policyholders are unaware of, is that you only have to disclose information that the insurer has explicitly requested in writing.
Since the reform of insurance contract law, there is no longer a general, spontaneous duty to disclose information. Today, the insurer bears the risk of unclear or missing questions. What they don't specifically ask about, they can hardly hold against you later. The first step in any defense is therefore to examine the application: How exactly was the question formulated?
From his previous work on the insurance side, lawyer Dario Kovac knows how, in the event of a claim, evidence is retrospectively sought. Whether this constitutes a justified claim... Rejection of benefits The outcome depends on the specific wording of the question.
Is your insurer accusing you of providing false information? First, check whether the health questions were clear and presented in writing.
Which pre-existing conditions must actually be reported – examples from practice
Only information requested by the insurer must be disclosed, and even then, only within the scope of the specific question. Some typical dispute scenarios illustrate how narrowly this must be interpreted:
- Vague health questionsIf the insurer asks generally about complaints or impairments without specifying them, the ambiguity works against them. If reasonable policyholders understand a question differently, the insurer usually cannot draw any conclusions from a seemingly incorrect answer.
- Minor illnessesA single cold, a flu-like infection, or a minor bruise without lasting effects is generally irrelevant unless explicitly asked about. Portraying such trivial matters as serious deception rarely works.
- Old complaintsIf the insurer asks about treatments received in the last five years, older, cured conditions do not need to be disclosed. Adhering to the requested timeframe is not a mistake.
- Pre-existing mental health conditionsDisputes frequently arise regarding undisclosed mental health treatments, such as individual counseling sessions, a brief crisis, or a past, mild depressive episode. The crucial factor here is precisely what questions were asked, whether a condition requiring treatment was present, and whether you were able to recognize its significance. Blanket accusations are ineffective in these situations as well.
- Knowledge of the intermediaryIf an intermediary advises someone to omit information when filling out an application, their knowledge can be attributed to the insurer. Case law considers the intermediary, in this respect, to be the insurer's eyes and ears.
In the event of a claim, insurers often portray any undisclosed diagnosis as a concealed fact. Whether this accusation holds water depends on the specific question asked, not on the mere existence of a previous diagnosis.
Are you unsure whether a pre-existing condition was subject to mandatory disclosure? Have the application and wording of the question reviewed before you submit your statement.
The legal consequences: withdrawal, termination or contract adjustment
The insurer's rights depend crucially on your degree of fault. The law stipulates the consequences in stages:
- Intentional or grossly negligent conductThe insurer may withdraw from the contract (§ 19 para. 2 VVG). In cases of gross negligence, the right of withdrawal is forfeited if the insurer would have concluded the contract under different conditions even if aware of the negligence.
- Simple negligence: Here, the insurer may only terminate the contract (§ 19 para. 3 VVG) and not withdraw retroactively.
- No faultIf you could not have known about the circumstances, you are spared the need for withdrawal and termination. At most, a contract adjustment for the future is possible.
Furthermore, there is the issue of causality. According to Section 21 Paragraph 2 of the German Insurance Contract Act (VVG), the insurer remains obligated to provide benefits if the undisclosed circumstance was neither the cause of the occupational disability nor of its extent. Therefore, a concealed knee injury does not justify a refusal to provide benefits if you are occupationally disabled due to a mental illness. However, this limitation does not apply in cases of fraudulent concealment.
Is the insurer claiming a cancellation of the contract? Check whether the undisclosed illness is actually related to your occupational disability.
When the insurer loses its rights
Even if there is a breach of the duty to disclose information, the insurer can lose its rights. Three points are particularly important in practice:
- Duty to informThe insurer must have informed you of the consequences of a breach of the duty of disclosure by means of a separate written notification when you submitted your application (§ 19 para. 5 VVG). If this notification is missing or hidden, the insurer generally cannot invoke the right to rescind or terminate the contract.
- deadlinesThe insurer must exercise its rights within one month of becoming aware of the breach (§ 21 para. 1 VVG). Furthermore, these rights are excluded after five years, or after ten years in the case of intentional or fraudulent breach (§ 21 para. 3 VVG).
- Lack of causalityThe insurer remains liable for benefits despite the injury if the circumstance was irrelevant to your occupational disability.
These points are often overlooked in rejection letters. Whether the accusation is valid is therefore a question of... Contract interpretation and breaches of duty, which can be checked line by line against the legal requirements.
Has a notification pursuant to Section 19 Paragraph 5 of the German Insurance Contract Act (VVG) been provided and have the deadlines been met? This question often determines the entire insurance coverage.
Simple breach of the duty to report or fraudulent intent? The crucial distinction.
The most severe option is the avoidance of the contract due to fraudulent misrepresentation pursuant to Section 22 of the German Insurance Contract Act (VVG) in conjunction with Section 123 of the German Civil Code (BGB). This differs fundamentally from a simple breach of the duty to disclose information.
Fraudulent intent requires a subjective element: you must have knowingly provided false information and at least tacitly accepted the possibility of influencing the insurer's decision. Simply forgetting a treatment or a misunderstanding is insufficient. Case law requires concrete proof of this intent to deceive and does not accept general assertions.
The consequences of fraudulent misrepresentation are severe: the contract is considered void from the outset, the threshold of causation does not apply, and it can be challenged for up to ten years. Insurers therefore frequently resort to this accusation, even when the necessary conditions are not met. However, the burden of proof for fraudulent misrepresentation rests entirely with the insurer.
Is your insurer accusing you of fraud? They must prove this serious accusation. Have their claims refuted by a lawyer.
What you should do if the insurer makes the accusation
If your insurer accuses you of violating your duty to disclose information, a structured approach is crucial. These are the important steps now:
- Secure application and questionsObtain a copy of your insurance application and check how the health questions were specifically worded.
- Check notice and deadlines: Clarify whether the insurer has issued the notification pursuant to Section 19 Paragraph 5 of the German Insurance Contract Act (VVG) and has complied with the one-month deadline.
- Clarify causalityDetermine whether the illness in question is actually related to your inability to work.
- Do not accept the accusation of fraud.Demand a specific explanation. General accusations are not enough.
- Don't explain anything without thinking it through.Do not submit any written statements until the legal situation has been clarified.
This article is part of our series on disability insurance. You can find an overview of our work on our website. Lawyer specializing in disability insurance.
The sooner the allegation is investigated, the better. Have your case assessed while the deadlines for responding are still open.
Rogert & Ulbrich – Your lawyers in insurance law
Rogert & Ulbrich defend policyholders nationwide against allegations of breach of disclosure obligations. Attorney Dario Kovac, who is familiar with insurers' review and rejection strategies from his previous work on the insurers' side, serves as the contact person. We combine this insider knowledge with the firm's extensive consumer protection experience from major cases in banking, capital markets, and automotive law. This allows us to engage with insurers on equal footing.
We obtain the application form and terms and conditions, review the wording of the questions, the obligation to provide information, and the deadlines, and assess whether the allegation is valid. In the Examination and enforcement of claims arising from insurance contracts We represent you out of court and, if necessary, in court. We involve any existing legal expenses insurance early on and obtain the coverage confirmation for you.
Has your disability insurance company contested your contract due to allegedly incorrect health information? Get in touch and secure your rights.
