InsuranceCorporate Insurance15.02.2022 Newsletter
Health questions in insurances: reading out to customer suffices
When an insurance customer is asked health questions, the text form is deemed to be fulfilled if the insurance broker reads the questions out loud to the applicant and the latter is then given the completed form for his review. This was confirmed by the Higher Regional Court [Oberlandesgericht - OLG] of Hamm (decision of 23 August 2021, I-20 U 123/21).
The factual situation
An applicant had concluded an occupational disability insurance policy at the office of an insurance broker. For the application, the broker had read the health questions on the PC screen posed by the insurance company out loud to the applicant and then entered his answers into an input mask. During this questioning, the applicant concealed an ankle injury. The applicant himself was unable to view the actual questions on the screen, however. The broker then presented him with a printed copy of the completed form for him to sign, and the insurance contract was concluded.
When the applicant later claimed benefits from the insurance, the insurance company denied him these benefits on grounds of the prior injury that had since become known. The applicant objected that the health questions had not been posed to him in text form in accordance with Section 19 (1) sentence 1 German Insurance Contracts Act [Versicherungsvertragsgesetz - VVG] and that the concealment of the prior injury was therefore irrelevant.
The decision of the OLG Hamm
The OLG Hamm ruled in the insurance company’s favour. Although it is correct that a prior illness only has to be stated if the insurer asks for it in text form, the text form is already deemed fulfilled if the insurance broker verbally asks the applicant questions from the insurance company about significant risk circumstances and has the applicant answer these questions.
It is not necessary for the applicant to have to read the health questions in order to answer them. Rather, the text form is fulfilled if the insurance broker reads out the questions in the application in a clearly understandable manner and then presents the completed form to the applicant for his review and signature. The decisive factor is that the questions are gone through carefully, are not answered under time pressure and, if necessary, that any queries can be answered by supplementary reading.
Summary and further information
The Senate of the OLG Hamm confirms the established case law, according to which the reading aloud of health questions satisfies the text form requirement of Section 19 (1) sentence 1 VVG if the applicant, despite not being able to simultaneously read the questions himself, is presented with a completed record containing his answers for review and signature.
The concept of an insurance broker reading out questions in a manner that fulfils the formal requirements originates from the so-called eyes and ears jurisprudence of the BGH (BGHZ 102, 194). According to this, an insurer obtains knowledge of facts that are communicated to the insurance broker by the policyholder.
Anna-Catharina von Girsewald
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