Poorly advised insured: what repair?


Lhen bankers distribute insurance to, for example, guarantee loans, they must, just like insurers, check that the contract they offer to their client is suited to their needs. If they make him sign an unsuitable contract, do they owe him compensation? This is the question posed by the following case.

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In 2006, Mr.me X, executive assistant in Switzerland, took out two mortgages with the Banque Populaire to buy a house in France. The bank asks her to join the group insurance that she has taken out with Allianz Vie, without drawing her attention to the fact that her contract will not guarantee any work stoppages linked to the aggravation of an autoimmune disease (Gougerot-Sjögren syndrome), for which she has been followed since 1991. Nine years later, when the evolution of the disease imposes on Mme X to stop working, Allianz refuses to enforce its guarantee, relying on the exclusion clause of its contract.

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Mme X then summons the Banque Populaire, so that it may be condemned, for “lack of advice”, to pay him 100% of the indemnity that would have been owed by the insurer. To prove that the bank made him “losing a chance” to be compensated correctly, it must, according to traditional case law, demonstrate that this chance existed, that is to say that: firstly, there was a contract covering its risk on the market; and that, secondly, better informed, she would probably have subscribed to it, since she then had the means to do so, given her significant income as a cross-border worker.

From 60% to 0%

However, the Banque Populaire contests its first demonstration, according to which the broker Creditsexchange could have proposed a suitable contract, subject to a “300% surcharge”. The tribunal de grande instance of Lyon renders a judgment by Salomon: it says that the fault of the bank must be repaired by the payment of 60% of the indemnity contractually provided for. But Lyon Court of Appealwhich espouses the bank’s point of view, excludes any compensation.

Mme X appeals in cassation. His lawyer, Mr.e Jean-Pierre Ghestin, argues that the loss of chance must “enable the right to compensation, without the borrower having to demonstrate that, better informed and advised, he would have taken out certain insurance guaranteeing the risk incurred”. He invokes two recent judgments, which censured the traditional double demonstration requirement.

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Judgment 18-25.440 of May 20, 2020published in Newsletter judgments of the civil chambers”, aims at the first demonstration: it censures a decision of the Lyon Court of Appeal, according to which the insured, victim of an accident at work, “ not [démontrait] not that, fully informed, he could have contracted another insurance which would have covered him against incapacity for work “.

Lstop 19-24.467 of June 27, 2021 is aimed at the second demonstration. He censors a decision of the court of appeal of Montpellier, according to which the insured, a farmer who suffered from low back pain – a disease excluded by his contract –, ” not [démontrait] not that he would have accepted to settle a necessarily more expensive insurance, if the banker had given him more warning “. Neither of these two cases has yet been retried by the courts of reference.

On September 15, 2022, (21-13.670, decision also published in the “Bulletin of the judgments of the civil chambers”), to the surprise of many jurists, the Court of Cassation agreed with him: it quashed the appeal judgment and referred the parties to the differently composed court of Lyon , to retry the case. The percentage of compensation that it will retain (90% or 5%) will make it possible to verify whether justice intends, really, to better sanction the offending lender.

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