Direktkrav vid ansvars- och rättsskyddsförsäkring

Sammanfattning: In accordance with the doctrine of privity of contract, a contract can only confer rights and impose obligations on the contracting parties and only they can seek enforcement of the contract. With regard to liability insurance this means that the injured party must present his or her claim to the insured tortfeasor who then in turn may or may not chose to utilise the insurance. The primary purpose of the liability insurance is to protect the insured against the consequences of damage liability. However, indirectly the insurance also benefits the injured party since the possibility of receiving compensation won’t depend on the economic means of the tortfeasor. In some circumstances the Swedish Insurance Contracts Act permits the injured party to present a claim for compensation from the liability insurance directly to the insurance company. Such direct action is only permitted in specific circumstances, e.g. when the insured is obligated by law to have liability insurance, when the insured is bankrupt or under public debt renegotiation and when the insured is a dissolved legal entity. These rules can be said to illustrate the legislative ambition of emphasising the reparative function of damages, especially when the liability insurance represents the only possibility for the injured party to recover damages. The primary purpose of the legal expenses insurance is to cover costs, e.g. legal counsel fees, of legal action brought by or against the insured. Indirectly, however, the insurance also serves as security for the counsel’s claim for compensation, the opponents claim for litigation costs etc. With regard to legal expenses insurance the doctrine of privity of contract states that only the insured has legal standing to demand compensation under the insurance agreement. In practise, however, the Swedish Supreme Court has established that a contract of legal expenses insurance is in fact a third party agreement in favour of both the insured and the counsel. The counsel therefore has an independent right to compensation from the insurance. This essay examines and evaluates the Swedish rules regarding direct action under the liability and legal expenses insurance. The study concludes that legislative reform is needed if the current rules should fulfil their intended purposes. Moreover the tendency of emphasising the interests of the injured party ought to warrant further expansions of the right to direct action against liability insurers, especially when the claimant is the weaker party. However, to create different rules based on the identity and strength of a third party, in a regulatory system otherwise based on the identity of the policyholder, would be seemingly difficult. Therefore the only feasible solution may be to give injured parties a general right to direct action against the insurers. The implementation of such rules should nevertheless be preceded by a thorough analysis of its consequences for the workings of the insurance companies in order to avoid a surge in insurance premiums which might have a negative effect on the spreading of liability insurance coverage in Sweden.