Refusal of any “distorting contractualisation” of article L. 113-9 of the insurance code – Insurance

The authors would like, first of all, to warmly thank Advocate General Philippe Brun for the very kind communication of the opinion rendered under this decision, rendered on May 11, 2022 by the third civil chamber relating to a contract of insurance taken out by an architect. Such a policy covers the consequences of the possible involvement of its professional civil liability (RCP) following claims and actions made by customers or injured third parties. A (too) significant dispute concerns this type of contract, in particular those proposed by the Mutuelle des architectes français (MAF), which do not appear to be a model of clarity, concerning both the distinction between the conditions and the exclusions of guarantee (see. R. Bigot and A. Cayol, Execution of work in violation of town planning rules: an indirect exclusion clause in the architect’s insurance, ss Civ. 3e, April 20, 2022, n° 21-16.297, Dalloz news, May 24, 2022, obs. R. Bigot and A. Cayol; D.2022.792 ), and the termination clauses based on Articles L. 113-9 and L. 113-10 of the Insurance Code. It is on this last point that the commented judgment provides useful details.

In this case, spouses, project owners, concluded with an architect, insured with the MAF, a project management contract relating to the fitting out of a barn. A company is entrusted by the architect with the “structural work, floor and wall coverings” lots. From the start of the work, disorders appeared on the foundations of the preserved walls and on the new foundations. After obtaining an expert report, the project owners summon the architect, his insurer (the MAF) and the builder for the purpose of repairing their damages. The Court of Appeal having rejected their claims, they are appealing in cassation. Although several arguments raised were rejected by the Court of Cassation (in particular with regard to the relationship between Articles L. 113-10 and L. 113-9), the latter quashed the decision of the trial judges for violation of the Article L. 113-9 of the Insurance Code, on the grounds that the insurance contract cannot derogate from its public order provisions by providing for another method of calculating the proportional reduction.

Articulation between articles L. 113-10 and L. 113-9 of the insurance code

According to settled case law, when the application of Article L. 113-10 of the Insurance Code is expressly stipulated in the policy, the sanction provided for therein (additional indemnity within the limit of 50% of the omitted premium) is the only one to be able to play, article L. 113-9 cannot be invoked (Civ. 1D, 18 Feb. 1997, no. 95-12.650, RGDA 1997. 747, note Favre-Rochex). This is also the case when, without expressly referring to Article L. 113-10, the contract substantially repeats the mechanism it provides (R. Bigot and A. Cayol, Application exclusive de l’article L. 113 -10 of the insurance code, the sanction mechanism of which is substantially repeated in the policy, ss Civ. 2eNov. 26, 2020, n° 18-10.190, Dalloz news, Jan. 5, 2021).

The contracting authorities thus maintained, in their appeal, that the trial judges would have deprived their decision of a legal basis with regard to Articles L. 113-9 and L. 113-10 of the Insurance Code, and Article 1134, now 1103, of the Civil Code, by not investigating whether the mechanism provided for in the contract, although without expressly referring to Article L. 113-10 of the Insurance Code, did not provide for a sanction substantially resuming the mechanism provided for by this text, which would have excluded the insurer from relying on the rule of proportional reduction of indemnity provided for by article L. 113-9 of the same code. Indeed, Article 8.2.1.2 of the general conditions of the insurance policy provided in this case, under the “sanctions relating to the non-provision of declarations of professional activity”, that at…

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