Direct action claims against liability insurers is a distinctive feature of several jurisdictions, with relevant consequences for the insurer, who may face claims from unknown parties in unknown jurisdictions, subject to procedural rules which were never contemplated in the insurance contract. In some jurisdictions (like France or Spain) the direct action is well established and largely enforced, in other states third party rights are granted only in certain limited cases.

Under Dutch law for instance, third parties only have direct rights of action against an insurer if they have suffered damages resulting from death or personal injury, whilst there is no scope for direct action by injured parties which suffer material or financial damages. In Italy, third parties have no right of action, but there are significant exceptions in Compulsory Motor Accident Insurance Law and to some extent in the civil code, and a new form of direct action has been introduced very recently by a law of 2017 regulating medical malpractice.

This market briefing will aim to provide an overview of the most significant developments in the legislation and case-law of several jurisdictions, addressing issues typically arising in transnational direct actions against the insurer, i.e. validity and enforceability of jurisdiction clauses, choice of law, validity vis-à-vis the third party of cover exclusions and limits, claims procedure, warranties.

Our Speakers:

Claudio Perrella, Senior Partner of LS and head of the department of International Contracts and Insurance Law. Fluent in English and French, Claudio’s practice involves a wide range of insurance and reinsurance areas across all lines of business. Claudio advises insurers and reinsurers in relation to coverage disputes and subrogated recovery actions arising from claims for business interruption, major casualties, property and product liability risks. He is also regularly involved in liability claims on behalf of both insurers and manufacturers. He is an accomplished and well-known lecturer, both nationally and internationally, on the legal aspects of shipping, trading and insurance; Claudio has been for several years IUMI (International Union of Marine Insurance) Professional Partner for Italy and is a Member of PLUS Professional Liability Underwriting Society. Claudio is recommended by Who’s Who among the world’s leading shipping lawyers.

Anna Masutti, Senior Partner of LS. Anna is Professor at the University of Bologna, Faculty of Law, is also visiting professor at the European University Institute (EUI) in Fiesole and is legal advisor for business enterprises and public institutions, national and international manufacturers, both for contentious and non-contentious matters, in insurance, product liability, international trade as well as European law. She is a regular speaker at national and international seminars and conferences (such as ANIA, Italian Insurance Companies Association, IBA, ICAO, EALA) as well as a regular contributor to several Journals and Reviews, both national and international. Anna is editor of The Aviation & Space Journal and member of the Aviation Committee of IBA (International Bar Association); she is recommended by Who’s Who Legal.

Henri Najjar, Attorney-at-law registered at the Paris Bar. He holds a Master Degree in Business Law (Paris II, Assas), a LLM in Maritime Law, Insurance Law and International Trade Law (Southampton, UK). Founding Partner of DelViso-Avocats law firm, with offices in Paris and Marseilles and partnership offices in Ajaccio and Douala, Henri advises and handles litigation in connection with the insurance, international trade and maritime practice. He represents various insurers in marine and non-marine matters, as well as P&I clubs, freight forwarders and carriers and has developed an expertise in the set-up of agencies and joint ventures worldwide, as well as in insurance court surveys. He regularly speaks at international conferences and contributes to legal publications.