the prescription of insurance actions.
Prescription terminates the insured's right of action against his insurer for the latter to come as a guarantee.
Knowing the cardinal principles surrounding this principle is the guarantee of having recourse to one's law.
The prescription is
"The extinction of a right, by the lapse of a certain period of time and under the conditions determined by law".
In common contract law, this period is 5 years. In insurance law, the prescription is 2 years, we say that the prescription is a biennial prescription [8]. The parties to an insurance contract cannot reduce or increase the period of this limitation, contrary to common contract law, but they can waive it when, for example, the insurer accepts the compensation proposal from its insured, or when 'he takes charge of the trial. The insurer has the obligation to mention the existence of this limitation period in his insurance contract, so that it is enforceable against his insured (article R112-1 of the Insurance Code supplemented by a leading judgment of 2 June 2005 [9]). Four questions then arise, that of the application of the limitation period, that of the starting point of the limitation period, that of the interruption and that of the suspension of the warranty.
- The question of the application of the prescription and therefore of Article L114-1 of the Insurance Code is important:
- When the action referred to does not fall within the scope of the insurance contract, then it is not subject to the two-year limitation period. And it is therefore the common law prescription that applies;
- When the action referred to falls within the scope of the insurance contract, then it is subject to the two-year prescription.
The Insurance Code does not list these actions. Case law makes a casuistic analysis. Thus, the direct action of the insured does not come within the scope of the insurance contract, but the action for nullity falls into this category;
- The question of the starting point of the two-year prescription is very important because it is from this date that the two-year period will start. Fixing this date means fixing the period of time during which the insured and the insurer can initiate legal action;
- Interruption of prescription [10] is a “stopping of the course of prescription for causes determined by the law which retroactively erases the time elapsed before the interrupting fact so that if, after this fact, the prescription begins again, the earlier period no longer counts ”. In short, after an interruption, a new period of 2 years runs.
There is an interruption of the prescription in the following cases:
- appointment of an expert following a claim (with the presence of the insurer during the appraisal). As soon as the expert is appointed, a new limitation period begins. This means that the interruption does not concern the time of the expertise, this time is included in the new deadline;
- send a registered letter with acknowledgment of receipt in the event of a dispute concerning the payment of the premium or the settlement of the claim;
- a summons to justice, even before an arbitral tribunal and even in the event of referral to the wrong jurisdiction, until the end of the trial;
- an act of forced execution such as a court decision;
- recognition of the right to guarantee.
- The suspension of the limitation period is a "temporary halt in the course of the limitation period in favor of certain persons (minors, adults under guardianship) or between certain persons (between spouses) or for various causes determined by law, which, unlike the interruption does not destroy the effects achieved and results in an extension of the period corresponding to the suspension time ”. That is, the suspension stops the elapsing of the limitation period. As soon as the suspension is lifted, the previous period (eg 6 months) expires again. It is not a new period that starts as in the interruption of the limitation period.
The prescription is suspended in three cases:
- Inability to act,
- The insurer triggers the trial management clause,
- Sending a letter from one party to the other mentioning the use of mediation.
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