Il fine giustifica i mezzi? Polizze claims made tra «primo», «secondo» e «terzo» contratto

The essay examines the claims-made policies from the perspective of general (« P2P »), business-to-consumer (« B2C ») and business-to-business (« B2B ») contract law, after considering the impact of this type of coverage on the insurance companies and policyholders. As well known, the claims-made formula covers only for claims made during the insurance period, in derogation from the so-called “loss occurrence” model outlined by the civil code, whereby the policy covers for claims arising from incidents that occur while the insurance is in force (regardless of when the claim is reported). Unlike the latter, the former is currently very common in professional liability policies and can leave a gap in insurance coverage, especially in case of long-tail claims that take years to manifest. In a move to protect policy holders, the Italian Corte di Cassazione recently ruled on the validity of claims-made clauses, invoking general principles of contract law. To avoid critical problems resulting from this approach, the author suggests to apply instead the consumer code, stretching the legal definition of consumer, or better yet to apply the law protecting businesses who are in a weak bargaining position, like the one that prohibits the abuse of economic dependence.