Conflicting expert opinions form a complex legal issue that frequently occurs in civil proceedings and insurance matters. When experts draw different conclusions about the same facts, uncertainty arises that can affect the outcome of a case. In this blog, we discuss the legal aspects of conflicting expert opinions, the consequences for your legal position, and how Arslan & Arslan Advocaten can assist you with this.
Conflicting expert opinions arise when two or more experts independently prepare a report on the same subject but arrive at different or even opposing conclusions. This can occur, for example, with damage assessment, medical expertise, or technical evaluations. The difference in findings may stem from differing interpretations, methods, or interests. It is important to realize that conflicting expert opinions complicate the assessment of facts and present the judge with a difficult task.
The role of the judge in conflicting expert opinions
In the Dutch legal system, it is up to the judge to assess which expertise is the most convincing and reliable. The judge can interrogate the experts, appoint additional experts, or even engage a so-called ‘third-party expert’ (deskundige derde) to weigh the different expert opinions. It is crucial that the judge makes a well-considered decision, carefully analyzing all expert reports. However, this process can be time-consuming and requires legal expertise to optimally protect the client’s interests.
Conflicting expert opinions in insurance cases
In insurance law, conflicting expert opinions are common, for example, with damage claims or in the assessment of fraud. An insurer may engage its own expert who arrives at a different conclusion than the expert appointed by the insured. This can lead to a dispute about compensation or even to the rejection of the claim. In such situations, it is important to know the rights of the insured and to know how you can object. Arslan & Arslan Advocaten can advise you on the legal options and help you protect your interests. You can read more information on this topic in our blog Rejection of damage by insurer – what can you do?
How can you deal with conflicting expert opinions?
When you are faced with conflicting expert opinions, it is important to proceed strategically. First of all, it is advisable to carefully choose your own expert and ensure that the report is clear, substantiated, and consistent. In addition, engaging an independent third-party expert can help bridge the differences. It can also be useful to seek legal advice to determine which steps you can take, such as requesting a court-appointed expert. Arslan & Arslan Advocaten has extensive experience in guiding clients in such situations.
The legal consequences of conflicting expert opinions
The presence of conflicting expert opinions can lead to a delay in the proceedings and increases the risk of uncertainty about the outcome. In some cases, it can also affect the burden of proof and the degree of persuasion required to prove a certain position. It is therefore essential to seek legal assistance in a timely manner, so that your interests are safeguarded. Our lawyers will help you analyze the expert opinions and draft a solid litigation strategy.
Why conflicting expert opinions require a careful approach
The concept of conflicting expert opinions is not only a common phenomenon in legal proceedings but also an important point of attention for professionals involved in conflicts. By recognizing this problem, you can better anticipate possible complications. Do you want to know more about how conflicting expert opinions can affect your case? Then contact our specialized lawyers for expert advice.
Practical tips for conflicting expert opinions
- Ensure an expert with demonstrable experience and an impartial attitude.
- If possible, request a counter-expertise to test the reliability of the reports.
- Document all communication and findings carefully.
- Consider mediation or an amicable settlement to avoid lengthy proceedings.
- Engage legal help in a timely manner to strengthen your position.
For more background information on submitting complaints and engaging dispute committees, we gladly refer you to Filing a complaint with Kifid – your rights, step-by-step plan and tips and to the official website of Kifid.
Legal framework, counter-expertise, and the role of the third expert
The legal basis of counter-expertise under Article 7:959 of the Dutch Civil Code (BW)
When an insured and an insurer are diametrically opposed due to divergent damage reports, the statutory right to counter-expertise forms a crucial instrument to uncover the factual truth. Under Article 7:959 paragraph 1 of the Dutch Civil Code (Burgerlijk Wetboek), the insured has in principle the right to consult their own expert at the expense of the insurer to determine the nature and extent of the damage. This statutory provision aims to protect the vulnerable position of the insured against the factual and financial superiority of a professional insurer, who typically engages its own damage expert first. For consumers, this right is of semi-mandatory law, meaning that contractual clauses in the policy conditions that deprive or unreasonably restrict this right are void.
The law stipulates that the reasonable costs of this counter-expertise are to be borne by the insurer, unless the costs were incurred unnecessarily or the insured acted unreasonably. In practice, however, disputes regularly arise over what exactly constitutes ‘reasonable costs’ and whether the engaged counter-expert is sufficiently independent and certified, such as being registered with the Dutch Institute of Registered Loss Adjusters (NIVRE). When the primary expert of the insurer and the counter-expert of the insured reach fundamentally different conclusions about, for example, the cause of a fire, the technical repair costs, or the medical causality in an accident insurance policy, a legal impasse arises that requires careful management.
Conflicting reports and engaging a binding advisor or arbitrator
If the expert reports of both parties contradict each other and an amicable settlement is not reached, many insurance conditions provide for a specific dispute resolution scheme. Parties can then agree to jointly appoint a third, independent expert or arbitrator. This third expert issues a further report that is often designated by the policy as binding on the parties. Under Dutch law, this legal mechanism qualifies as a binding advice (bindend advies) within the meaning of Article 7:900 of the Dutch Civil Code, adopting a settlement agreement whereby parties bind themselves to the determination of facts by a third party.
Engaging a binding advisor entails far-reaching legal consequences. Because a binding advice is in principle virtually unassailable and can only be annulled by the civil court under very exceptional circumstances – for example, when the decision-making would be unacceptable according to standards of reasonableness and fairness or if there are serious procedural defects – insured parties must be mindful of the definitive nature of this step. It is therefore of the utmost importance to seek legal advice in advance on whether it is wise to agree to a binding advice procedure or to submit the case directly to the court or a dispute committee.
Dispute resolution via Kifid and the civil court
When parties cannot reach an agreement together and no binding dispute resolution scheme is included in the policy, the dispute can be submitted to the Financial Services Complaints Tribunal (Kifid) or to the competent civil court. The Disputes Committee of Kifid assesses whether the insurer could reasonably rely on its own expert report and whether the refusal to pay the claim in whole or in part can be sustained. Various rulings by Kifid show that insurers bear a heavy burden of motivation when they bypass the report of an expert of the insured in favor of their own expert.
Should a binding ruling by Kifid or a judicial procedure be unavoidable, the following essential procedural points of attention apply to insured parties:
- Carefully check whether the policy conditions contain specific expiration periods or obligations for reporting counter-expertises.
- Verify whether the engaged experts possess the required certification and demonstrable objective expertise within the specific damage area.
- Ensure a conclusive burden of proof and record all correspondence with both the insurer and the experts in writing.
- Engage legal assistance in a timely manner to assess whether a judicial expert examination under the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) is necessary.
Under Article 194 of the Dutch Code of Civil Procedure, the civil court can, ex officio or at the request of the parties, appoint an independent expert when the submitted party experts contradict each other. The judgment of such a court-appointed expert is generally weighed heavily by the judge, making a careful procedural setup and substantive refutation of conflicting reports decisive for the ultimate legal success.
For the current principles, you can consult the statutory regulation on wetten.overheid.nl.
Frequently Asked Questions
What can you do if you are faced with conflicting expert opinions?
You can engage your own expert, object to a report, or ask the judge to appoint an independent third expert. It is advisable to seek legal support in this regard.
How does the judge deal with conflicting expert opinions?
The judge assesses the various reports and can appoint additional experts. Ultimately, the judge determines which expertise is the most convincing and reliable.
Can conflicting expert opinions lead to a procedural delay?
Yes, it can lead to a delay because the judge needs more time to compare the reports and possibly engages additional experts.
Read also
- Rejection of damage by insurer – what can you do?
- Filing a complaint with Kifid – your rights, step-by-step plan and tips
- Insurance law lawyer: expert help with conflicts
Need help?
At Arslan & Arslan Advocaten, we understand how complicated conflicting expert opinions can be, and we are ready to expertly assist you. Contact us for a free initial consultation and discover what we can do for you.