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Reinsurance Working Party

Questionnaire 8: Limitation Period in Reinsurance

 

Title:                 

First Name: Last Name:

Job Title: Company:

Address:

 

Email :

Fax: Phone:

Professional Qualifications/ Memberships:

Which National Chapter are you a member of?

QESTIONS:

A. Limitation Period - General:

  1. What is the limitation period for civil (i.e. contractual monetary) claims?

  2. When does the limitation period commence?

  3. Do the following circumstances or facts affect the commencement or the running of the limitation period:

    (a) Where facts which constitute the cause of action were unknown to the Plaintiff?
    -Are there any specific provisions regarding fraud or deceit ?
    (b) The Defendant's admission to the Plaintiff's rights.
    What constitutes such admission?
    (c) Plaintiff's personal status (minor, mentally disturbed, marital status/guardian between Plaintiff and defendant).
    (d) Residence of a party (defendant or plaintiff) outside the jurisdiction - how does this influence the limitation period?
    Are there any other factors which may affect the limitation period?

  4. Are the parties free to change, by agreement, the length of the limitation period?

    (a) If yes, what form, if any, is required by law (e.g. in writing, separate document, etc.)?
    (b) Does the law set the minimal limitation period which cannot be stipulated against?

  5. How is the limitation period classified in your jurisdiction - is it procedural or substantive law?

    (a) Subject to your answer to the above, what are the implications of the limitation period on the legal right of a plaintiff - does it abolish the right? or is it still valid but cannot be sued in court?
    If it is valid - what may such barred right serve for (defence, set-off, etc.)?=
    (b) In a multi-national matter, which law will apply to the limitation period - the law of the contract or the law of the forum hearing the claim?
    (c) Are the parties at liberty to stipulate on the applicable legal system applying to limitation?

  6. According to your jurisdiction, when is the correct time to raise the time bar plea ?

    (a) What are the results of not arguing the time bar plea at the correct time?
    (b) Is it possible to cure the omission of not raising the plea on time?

  7. Whether the limitation period can be suspended where fraud was perpetrated by the defendant after time had begun to run ?

B. Limitation Period - Insurance Claim:

  1. How is an insurance claim classified in your jurisdiction ?

    (a) Is it classified as part of the general Contract Law or is it dealt with separately under a specific law.
    (b) Is a reinsurance claim classified the same way?

  2. Are there provisions in your jurisdiction which set out specific conditions concerning limitation period of an insurance claim?

    (a) Are the parties free to stipulate against these provisions?
    In what form?
    (b) What is the limitation period of an insured’s claim against an insurer?
    (c) What is the limitation period for the insurer’s claim, for instance:

    (1) against the insured, e.g. premium, or
    (2) against another insurer e.g. double insurance or
    (3) against third party - subrogation claim

  3. Is there any difference between Liability insurance and Property insurance when determining the commencement date of the limitation period?

    (a) What is the date of the insured event in Property insurance?
    (b) What is the date of the insured event in Liability insurance.

  4. How does the date of filing of a Third Party claim against an insured influence the limitation period of the insured's claim against the insurer in Liability insurance?

  5. Where the damage occurs or is revealed not on the date of the occurrence - how does this influence the calculation of the limitation period in Property insurance claims?

  6. Is the allegation of limitation period as a defence argument subject to the principles of good faith?

    (a) What will be considered as bad faith on the part of insurers, when raising the argument of limitation period?

  7. Does the exchange of correspondence between insurer and insured, or the fact that negotiations are held concerning the claim, influence the calculation of the limitation period?

  8. Does the insurer's agreement to pay on account payments and/or the appointment of an expert/assessor affect the calculation of the limitation period?

  9. Assuming that the policy provides for pre-conditions which should be met prior to the maturity of the insured's right for policy benefits -

    (a) When does the limitation period begin to run, e.g. from the date on which all the policy conditions are fulfilled, or from the date of the occurrence?

C. Limitation Period - Reinsurance Claim:

  1. Are there specific rules in your jurisdiction concerning limitation period for reinsurance claims?

    (a) Are the parties at liberty to stipulate against these provisions?
    (b) In the event that there is no specific express provision in your jurisdiction, what are the relevant rules applicable to limitation period of reinsurance claims?

  2. When does the Limitation Period begin to run in reinsurance claims?

    (a) Are there any differences between Property reinsurance and Liability reinsurance concerning the determining of the date on which the cause of action occurred ?

  3. How is a reinsurance policy classified in your jurisdiction ?

    (a) Is it classified as a liability policy of insurance for the reinsured or is it classified as an indemnification contract?
    (b) What are the implications of that classification on the limitation period in general, and in particular, on the date from which this period begins to run?

  4. Assuming that the reinsured acknowledged the insured’s right to insurance benefits:

    (a) Does this acknowledgment have any effect on the limitation period of the reinsured’s claim against the reinsurer and if so - how?

  5. Is there any connection and dependence, in your jurisdiction, between the limitation period on the insured’s right against the insurer to that of the reinsured against the reinsurer?