Intentional reluctance of the insured: clarification in sight for insurers – Insurance

Obtaining nullity for reluctance or intentional misrepresentation by the insured on the basis of article L. 113-8 of the insurance code is never easy. This only occurs after a long probationary process weighing entirely on the insurer. The latter must indeed demonstrate, first, the existence of sufficiently precise questions asked of the insured, then, that the answers provided personally by the latter turned out to be inaccurate, then, that this initial false declaration or the reluctance as to to a subsequent modification was made intentionally, and, finally, that these had an impact on the opinion of the insurer (v. equal., A. Pélissier, obs. ss Civ. 2e, Nov. 17, 2016, No. 15-24.819, RGDA 2017. 37). Add to this that most of these conditions are subject to the sovereign assessment of the judges on the merits and it will be understood that there is something to discourage the action of the most reckless. This is how an author was recently able to explain the observation of a significant reduction in litigation in this area by the “weariness of insurers who perhaps no longer see the point of encountering a rejection” (D .Krajeski, Civ.2e, 9 Dec. 2021, n° 19-22.366, RCA 2022. Comm. 88). A glimmer of hope could, however, come from a judgment rendered on June 16, which is all the more interesting since it is intended for publication in the bulletin (Civ. 2eJune 16, 2022, no. 20-20.745, D. 2022. 1204 ).

In this case, having already been the subject of a first censure by the Court of Cassation (Civ. 2e, 7 Feb. 2019oh 18-10.658 NP, RCA 2019. 147, obs. H. Groutel), an SCI, in order to protect itself against the risk of unpaid rent for a lease entered into on September 1, 2010 with Mmy M. and B., had entered into an insurance contract with two insurers governed by the old “rental risk guarantee” system (replaced by the Visale system since 1er Jan. 2016). However, in parallel, the manager of the SCI had also concluded on September 15, 2010, in a personal capacity tells us the judgment, another lease contract on the same property but, this time, with Mme M and her fiancé, MO

Later, the insured SCI, claiming that the initial tenants had not honored their rents between September 1, 2011 and December 31, 2013, requested a guarantee from its insurers for the amount of the unpaid rents. As noticed…

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