Försäkringsbolagets lojalitetsplikt vid skadereglering - Särskilt om individuellt tecknade företagsförsäkringar
Sammanfattning: In this paper I explore the significance of the duty of loyalty for insurance companies while managing insurance claims. A duty of loyalty is not legally defined in statutory law and no general legal provision applicable to all contracts exists that imposes a duty of loyalty upon a contracting party. No such provision exists in the Insurance Contracts Act (SFS 2005:104). Nonetheless, a duty of loyalty may be regarded as a general legal principle. A general legal principle consists of ideas and values that should permeate legal considerations and that they, as such, may both impose contractual obligations and be of significance while determining lex lata. In legal doctrine, a duty of loyalty is defined as an obligation for one contracting party to reasonably regard the interests of the opposing party. This general duty of loyalty is associated with other specific obligations, such as a duty to inform and a duty to contribute. However, an obligation to regard the interests of the opposing party, and other obligations stemming from such a general duty, is to a high degree dependent on the presence certain of loyalty inducing circumstances. In this paper I contend that these circumstances are present in insurance contracts, meaning that a duty of loyalty as a general legal principle manifests itself, and is necessary, in such contracts. Further, an insurance company may receive a claim from several different legal persons. Policyholders and other insured persons derive their rights directly from the insurance contract. No contractual relationship exists, however, between the insurance company and other injured persons that may be entitled to submit a claim to the insurance provider. As a duty of loyalty is contractually based, I contend that it only exists vis-à-vis policyholders and other insured persons. In this paper I argue that certain obligations that stem from a general duty of loyalty already follow from existing legal provisions. Furthermore, these obligations must be upheld by insurance providers towards all subjects entitled to indemnification, i.e. policyholders, insured persons and certain injured parties. The obligations follow partly from provisions in the Insurance Contracts Act, partly from an obligation to observe sound insurance standard while handling claims. Sound insurance standard is an obligation derived from public law meaning that it, as a general rule, cannot in itself impose contractual obligations. However, in this paper I contend that sound insurance standard may indirectly impose certain contractual obligations. Furthermore, sound insurance standard and a duty of loyalty overlap each other with regards to the raison d’être behind these provisions. In this paper I conclude that (i) a duty of loyalty exists in insurance contracts, (ii) that an obligation to inform and to contribute already follow from existing legal provisions, and (iii) that a duty of loyalty as a general legal principle therefore has limited independent significance for insurer provider’s claim managing practices with regards to these specific obligations.
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