Insured duty to restrain consequences of the insured event in the contemporary European jurisdictions


Author explores the content of the duty and consequences of insured breach of the legal duty to undertake measures aimed at restraining prospective claim consequences of the event being taking place or, which has already occurred, according to the solutions accepted in a number of the European laws regulating non-Marine insurance, that have been reformed in last seventeen year, solutions of the Principles of the European Insurance Contract Law, which have been adopted in 2015 as the document for harmonizing European insurance contract law and, particularly, the content of the insurer’s legal duty to reimburse the insured those expenses. Author, then, compares solutions for these two duties with the article 1444 of the Working text of the Civil Code Draft of Serbia of 15 May 2015 (thereafter: CCD). In order to establish how much provisions on the subject matter in the CCD are close or differ from those in the European jurisdictions and if they should be changed, amended or left out or improved to achieve modern European laws and / or meet needs of the Serbian insurance. Author uses research of the insured legal duty to restrain the damage from the insured event to point out areas in which it is converging with its legal or contractual duty to carry out preventive measures or abstain from acts inducing the insured event.
After thorough comparative examination, author has proposed a comprehensive reformulation of the article 1444 of the CCD in which: 1) item 1 gives a content description of the basic duty that the insured has while discharging duty of saving: to take all the possible measures to restrict consequences of the insured event occurring or, which has already taken place, that also embraces other measures, which undertaking are provided for by law and other rules; 2) item 2 regulates a content description of the insured to follow the insurer’s instructions about the measures that should be taken in order to limit the insured event consequences; 3) item 3 regulates the insurer’s rights when the insured breach duties, making up a duty of averting adjusted to the form and degree of the insured for breach by application of the general principle of proprotionality and with exclusion of the breach in light negligence; 4) item 4 excludes the insurer’s rights in case of the missing causal link connected with the consequence because of the non-fulfillment of the duty of saving; 5) item 5 provides for the insurer’s duty to reimburse the insured expenses for averting and damage incurred during saving, with a precise provision which expenses or damage are covered; 6) item 6 provides for the amounts for the expenses and indemnity that the insurer must pay the insured for taking such measures above the insured limit, except for the underinsurance and 7) item 7 provides that the aforementioned rules may not be changed to the detriment of the insured, i.e. that the provisions in items 1 – 6 are semi-mandatory.