When considering to litigate against an insurer, you are likely in a complex situation. Your legitimate claim has been unjustly rejected or your coverage suspended.
You take out insurance for financial security when disaster strikes. Yet, in practice, insurance companies regularly invoke complicated policy conditions or alleged non-disclosure to avoid paying out. This can cause significant financial damage and great uncertainty.
You are not powerless then. You have various legal means to claim your rights. Do not immediately accept the first rejecting position of your insurer. Take the right steps in a well-considered manner. In this article, we discuss the phases of a dispute, from objection to the court. We explain when it makes sense to take steps and how you can prepare optimally.
Why litigating against an insurer may be necessary
The decision to litigate against an insurer is rarely taken lightly. It is often the only way to get the compensation you are entitled to.
Insurance companies have teams of experienced lawyers and loss adjusters. Their task is to critically assess claims and limit the claims burden. This creates an unequal battle. Without the right legal knowledge, you as a policyholder can easily lose out.
Proceedings may be necessary when the insurer sticks to an unreasonable interpretation of the policy conditions. Also when they unjustly accuse you of insurance fraud. Moreover, a rejection can lead to a registration in the incident register. This has far-reaching consequences for your ability to take out new insurance policies.
By taking legal action, you force the insurer to justify their decision before an independent body. A judge assesses the case objectively and looks not only at the policy conditions, but also at the reasonableness of the situation. If you are dealing with a rejection of damage by an insurer, it is advisable to have your file assessed by an expert.
The first phase: objecting and negotiating
Before you take the step to litigate, it is advisable to first go through the internal complaints procedure of the insurance company. Start with a formal and well-founded notice of objection against the rejecting decision. Clearly set out why you disagree with the insurer’s position.
Substantiate your arguments with relevant evidence, such as photos of the damage, witness statements, or expert reports from independent experts. The goal is to convince the insurer to reconsider their position, without immediately starting a formal legal procedure.
In this phase, there is often room for strategic negotiations. Sometimes an insurer is willing to reach a compromise or make an ex gratia payment to avoid a lengthy legal battle. A specialized lawyer can be invaluable in this phase. They can draft the notice of objection for you with the right legal arguments and conduct the negotiations on your behalf. If the internal complaints procedure does not lead to the desired result, you will receive a final letter and the external legal avenues are open to you.
Filing a complaint with the Kifid as an alternative
If you cannot reach an agreement with the insurer in mutual consultation, you do not have to go straight to court. For consumers, there is an accessible alternative: the Financial Services Complaints Institute (Kifid). The Kifid is an independent body that settles disputes between consumers and financial service providers.
A procedure at the Kifid is generally faster and less formal than a civil procedure. The costs for filing a complaint are very limited. This lowers the threshold to claim your rights. To file a complaint with the Kifid, you must first have fully completed the internal complaints procedure.
During the Kifid procedure, the Disputes Committee hears the arguments of both parties and then makes a ruling. In many cases, this ruling is binding. This means that both you and the insurer must abide by the decision.
Bindingness offers certainty, but has a downside. After a binding ruling, you can in principle no longer go to court for the same dispute. It is therefore crucial to present your case at the Kifid well and fully substantiated right away.
When is the step to the civil court inevitable?
Although the Kifid offers an excellent alternative for many insurance disputes, there are situations in which going to the civil court is inevitable. This is the case, for example, when your claim exceeds the financial competence limit of the Kifid, or when you as a larger company cannot go to the Kifid.
Going to court is also necessary in complex cases requiring extensive witness hearings or expert investigations. Litigating in the civil court is formal and often lengthy. The procedure follows strict statutory rules, as laid down in the law and available for consultation via wetten.overheid.nl.
The procedure begins with the issuing of a writ of summons by a bailiff. In it, you formulate your claim and the legal basis. The insurer is then given the opportunity to respond in writing by means of a statement of defense. This is often followed by an oral hearing. The judge discusses the case with the parties and investigates whether a settlement is still possible.
Due to the complexity and formal requirements of a civil procedure, assistance by a lawyer is mandatory in most cases. An experienced insurance law attorney determines the legal strategy and represents you during the hearing.
The crucial role of the burden of proof in insurance disputes
In any legal proceeding, and in particular in insurance disputes, the burden of proof plays a decisive role. The main rule in Dutch civil procedural law is: he who asserts, must prove. Are you asserting that you are entitled to a payment under the policy? Then you must in principle prove that the insured event has taken place and that the damage is the result of it. In practice, providing conclusive evidence is often a challenge.
Does the insurer invoke an exclusion ground, for example by stating that there is non-disclosure when taking out the insurance? Then the burden of proof for this rests with the insurer. They must conclusively demonstrate that the exclusion ground applies.
Collecting and securing evidence is therefore of the utmost importance from the moment the damage occurs. Take extensive photos immediately, keep all damaged objects, and note the contact details of witnesses. A procedure may seem very strong based on your story, but without the necessary evidence, the chance of success is significantly smaller. An insurance law attorney can advise you on which pieces of evidence are crucial and how best to collect them.
Costs and risks of legal proceedings
An important aspect to consider before deciding to litigate against your insurer are the costs and the associated financial risks. A legal procedure can entail significant costs. First of all, there are the lawyer’s fees, which can mount up considerably depending on the complexity of the case and the duration of the procedure.
In addition, you owe court fees to the court. The amount depends on the nature and size of your claim. Are you put in the wrong? Then you can be ordered to pay the legal costs of the opposing party. You then not only bear your own costs, but also reimburse part of the insurer’s lawyer’s fees.
Fortunately, there are ways to limit or finance costs. Do you have legal expenses insurance? Then there is a good chance that it will cover the costs of the procedure. If you do not have legal expenses insurance and a lower income, you may be eligible for subsidized legal aid.
At Arslan & Arslan Advocaten, we always discuss the expected costs and financial risks transparently prior to a procedure, so that you can make a well-considered decision about the next steps in your file.
The importance of specialized legal assistance
Insurance law is an extremely complex and specific area of law. New legislation and case law constantly change it. Interpreting complicated policy conditions, fathoming exclusion clauses, and navigating formal procedures requires in-depth knowledge and experience.
If you decide to litigate against an insurer, you are taking on a professional party with significant legal resources. To maximize your chances of success in this unequal battle, the assistance of a specialized insurance law attorney is indispensable.
An expert lawyer not only takes the complex legal work off your hands, but also offers strategic insight and objective advice. They critically analyze your file, expose weak spots in the insurer’s defense, and build a strong, legally substantiated argumentation.
In addition, they take over the communication with the insurer, the Kifid, or the court from you, which saves you a lot of stress and time.
At Arslan & Arslan Advocaten, we guide you optimally in your dispute. We immerse ourselves in your situation, map out the possibilities, and map out the best strategy for a successful outcome.
Frequently Asked Questions
Can I litigate against my insurer if my claim is rejected?
Yes, you can take legal action after a rejection. The first step is a formal objection to the insurer. If that does not lead to a solution, you can file a complaint with the Kifid or start a civil procedure at the court. A lawyer will advise you on the most promising route.
What does a procedure against an insurance company cost?
The costs vary greatly depending on the chosen route. A procedure at the Kifid is relatively cheap. Going to the civil court entails more costs, including court fees and lawyer’s fees. If you have legal expenses insurance or are eligible for subsidized legal aid, these costs can largely be covered.
How long does a legal procedure against an insurer take?
The duration of a procedure depends on the complexity of the case and the chosen body. A procedure at the Kifid takes an average of six to twelve months. A civil procedure at the court can take a year to several years. Your lawyer can give you a realistic estimate based on your file.
Read also
- When can an insurer refuse to pay out?
- Objection against insurer: what can you do in case of a rejection?
- Cancellation of insurance: consequences and what you can do
Need help?
Are you dealing with a rejected claim or are you considering litigating against your insurer? Do not stand alone. The specialized lawyers of Arslan & Arslan Advocaten have years of experience in insurance law and are happy to help you further. We critically assess your case and advise you on the best next steps. Contact us for a free initial consultation and discover what we can do for you in your dispute with the insurance company. We are ready for you.