When your claim is rejected due to non-disclosure (verzwijging), it feels like a slap in the face. You have paid premiums, suffered loss and counted on the payout you believed you were entitled to. But the insurer rejects your claim on the ground that, when taking out the insurance, you failed to provide relevant information or provided it incorrectly. This happens to more people than you might think, and the rejection is by no means always justified. In this article you will read what non-disclosure (verzwijging) entails, when an insurer may reject your claim, and which steps you can take to challenge the rejection.
What is non-disclosure (verzwijging) in insurance?
Non-disclosure means that, when applying for insurance, you failed to provide certain information or provided it incorrectly. It concerns information that is relevant to the assessment of the risk the insurer assumes. Think of not reporting a medical condition for a life insurance, concealing previous water damage for a contents insurance, or not disclosing a criminal record for a motor insurance. The statutory basis is set out in Article 7:928 of the Burgerlijk Wetboek (Dutch Civil Code). This Article provides that the policyholder is obliged, before the contract is concluded, to communicate all facts that he knows or ought to know and which he knows or ought to understand are relevant for the insurer’s assessment of the risk to be insured. This is also called the duty of disclosure (mededelingsplicht).
When may the insurer reject your claim due to non-disclosure?
An insurer cannot reject every claim for non-disclosure just like that. The law sets specific conditions that must be met before the insurer can rely on a breach of the duty of disclosure.
The insurer must have asked questions An important principle is that, at the time of application, the insurer must have asked targeted questions. In principle, the policyholder is only obliged to answer questions posed by the insurer on the application form. If the insurer has not asked a question about a particular subject, in many cases the insurer cannot rely on non-disclosure with regard to that subject. There is an exception for facts that the policyholder knew or ought to have understood were relevant for the insurer, even without being asked.
The undisclosed information must be relevant
Not every unreported circumstance justifies rejection of the claim. The undisclosed information must be relevant to the risk assessment. The insurer must demonstrate that it would not have entered into the insurance, or would have done so on different terms, if it had had the correct information
at its disposal. If the insurer would also have concluded the insurance with the correct information, the claim cannot be rejected for non-disclosure.
Intent to deceive
The consequences of non-disclosure depend on whether there was intent to deceive.
If the policyholder deliberately withheld information with the aim of misleading the insurer, the insurer may terminate the contract and refuse any payment. If there was no intent to deceive, the consequences are less far-reaching. In that case, the insurer must demonstrate what cover it would have provided if it had had the correct information, and the payout is adjusted accordingly.
Common situations in which claims are rejected due to
non-disclosure In practice there are various situations in which insurers invoke non-disclosure to reject a claim. It is useful to know these situations so that you can assess whether the rejection of your claim is justified.
Medical information not disclosed
For life insurance and disability insurance you are often asked about your medical history. Not reporting prior treatments, chronic conditions or psychological complaints can lead to rejection. Yet not every medical circumstance is relevant. If the undisclosed condition is unrelated to the claim, the insurer may not be able to reject the claim.
Criminal record concealed
Many application forms contain questions about your criminal record. Failing to disclose prior convictions or fines can be regarded as non-disclosure. Here, it matters whether the question was drafted clearly and unambiguously. Vague or broadly worded questions can work in your favour.
Previous claims history not disclosed
When taking out a new insurance policy, you are often asked about previous claims. Not mentioning earlier claims can lead to rejection of a new claim for non-disclosure. The insurer can check your claims history via the CIS, which means inaccurate statements come to light relatively quickly.
Your defences against a rejection for non-disclosure
If your claim has been rejected due to non-disclosure, you have several options to challenge the rejection. The chance of success depends on the specific circumstances of your case.
Dispute that there was non-disclosure
You can argue that you did not know, or did not reasonably need to know, the information concerned. If, for example, you were unaware of a medical condition because it had not yet been diagnosed, you could not have concealed it. You can also argue that the questions on the application form were unclear and that you could reasonably interpret them differently.
Dispute the relevance
The insurer must demonstrate that the undisclosed information was essential to the acceptance decision (underwriting). If the insurer cannot prove that it would not have concluded the insurance or would have done so on different terms, the rejection will not stand. This defence regularly succeeds, because insurers cannot always substantiate that the undisclosed information would actually have influenced their underwriting policy.
Rely on proportionality
Even if it is established that there was non-disclosure without intent, the insurer must respond proportionately. The insurer may not refuse the entire payment if it would have concluded the insurance on the basis of correct information, albeit on different terms. In that case, the payment must be calculated based on the cover the insurer would have provided.
Time limits for non-disclosure
The insurer cannot rely on non-disclosure indefinitely. The law provides that the insurer must invoke the consequences of non-disclosure within two months after it has discovered the non-disclosure. If the insurer waits longer, it loses the right to rely on non-disclosure. It is therefore important to determine when the insurer became aware of the alleged non-disclosure and whether it acted in time. In addition, the insurer loses the right to terminate the contract for non-disclosure if more than five years have passed since the contract was concluded. After this period, the insurer can no longer cancel the policy on the ground of non-disclosure, unless there was intent to deceive.
The procedure at the Kifid
If you cannot resolve the matter with your insurer, you can lodge a complaint with the Financial Services Complaints Institute. Kifid handles disputes between consumers and financial service providers. The disputes committee can issue a binding decision on whether the insurer rightly rejected your claim on the ground of non-disclosure. A Kifid procedure is generally faster and cheaper than going to court.
Counter-expertise in non-disclosure cases
If the insurer bases its rejection on an expert report or an investigation by an external agency, you have the right to have a counter-expertise (contra-expertise) carried out. An independent expert can assess whether the conclusions of the expert engaged by the insurer are justified
or not. In many cases, a counter-expert reaches different or more nuanced conclusions, which can considerably strengthen your challenge to the rejection. The costs of a counter-expertise can be recovered from the insurer if your procedure is successful.
The influence of the intermediary in non-disclosure cases
If you took out your insurance through an insurance intermediary or adviser (assurantietussenpersoon), this can affect the assessment of the alleged non-disclosure. The intermediary has a duty of care towards you and must properly inform you about the importance of providing full information. If the intermediary did not adequately point out the importance of certain information, or if the intermediary filled in the application form on your behalf and omitted information, the insurer may not be able to attribute this fully to you. In such cases, the insurer can less easily rely on non-disclosure, because the error is not attributable to you alone.
Difference between non-disclosure and insurance fraud
It is important to know the distinction between non-disclosure and insurance fraud. Non-disclosure concerns failing to provide, or incorrectly providing, information when taking out the insurance. Fraud generally concerns deliberately misleading the insurer when submitting a claim. The consequences of fraud are generally more serious than those of non-disclosure without intent. In cases of fraud, the insurer can forfeit the entire right to payment and register you in the Extern Verwijzingsregister (External Reference Register).
The court and the interpretation of application forms
In many non-disclosure cases, the dispute revolves around the interpretation of questions on the application form. The court applies the principle that unclear or ambiguous questions must be interpreted in favour of the policyholder. This is the so-called contra proferentem rule. An insurer that asks unclear questions can less readily rely on non-disclosure if the policyholder could reasonably interpret a question differently.
In addition, the court looks at the context in which the application form was completed. Was there time pressure? Did the policyholder have sufficient opportunity to read the questions carefully? Were the questions asked orally by an intermediary, or in writing via an online form? All these circumstances play a role in assessing whether the policyholder actually breached the duty of disclosure.
Subsidised legal aid in non-disclosure cases
Proceedings against your insurer do not have to be unaffordable. If your income is limited, you may be able to rely on subsidised legal aid through the Raad voor Rechtsbijstand (Legal Aid Board). With a toevoeging (legal aid certificate) you only pay a personal contribution, and the government covers most of the lawyer’s fees. This way, you can stand up for your rights even on a limited budget.
Have your rejection assessed
A rejection of your claim for non-disclosure is not always justified. Insurers sometimes reject claims too quickly or apply too broad an interpretation of the duty of disclosure. A specialised lawyer can assess whether the rejection holds up legally and advise you on the most promising strategy to challenge it. Has your claim been rejected for non-disclosure and would you like to know whether you still have options? Contact us for a no-obligation assessment of your case. Our lawyers have extensive experience in insurance matters and are happy to help safeguard your rights. The sooner you take action, the greater the chance of a favourable outcome.
Also read
- Duty of disclosure in insurance (mededelingsplicht)
- Opzetclausule (intent clause)
- Objection against the insurer
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