This blog explains:
- when the limitation period starts to run,
- how it can be interrupted,
- when the interruption ends,
- and what recent case law says about clear and unambiguous notification by the insurer.
The direct action of the injured party against the liability insurer
Under Article 150 of the Belgian Insurance Act, the injured party has an independent direct right of action against the liability insurer of the person responsible for the damage.
What is the limitation period for this right? And when does it start?
The limitation period for the direct action of the injured party against the liability insurer is:
- five years from the harmful event, or
- five years from the day on which an offence was committed (where applicable).
If the injured party proves that they only became aware of their right against the insurer at a later moment, the limitation period begins to run from that moment. However, in any case, it expires ten years after the harmful event or, in case of an offence, ten years after the day on which it was committed.
Interruption: one clear compensation request may be enough
The injured party can interrupt the limitation period of their direct action. To do so, they must inform the insurer of their intention to seek compensation.
Important points to note:
- Interruption is not subject to formal requirements: a letter, an email, or a request made through a lawyer may suffice. As long as it is clear that the injured party is seeking compensation, the interruption is valid.
- No need to mention the legal basis: the injured party does not need to state the legal ground of their claim. A clear request for compensation is enough.
- A subrogated insurer can rely on the acts of interruption performed by the injured party.
When does the interruption end?
The interruption does not end automatically. The law places the responsibility on the insurer.
The limitation period only begins to run again once the insurer:
- decides to indemnify or refuses indemnification, and
- communicates that decision to the injured party in a clear and written manner.
This notification must therefore be:
- written,
- clear,
- unambiguous,
- and contain a genuine and definitive decision on compensation.
Only then does a new limitation period begin to run.
When does a notification fail to meet these requirements? Some practical examples:
- A letter stating that the insurer does not yet have sufficient information to take a position is not a definitive decision. There is no clear yes or no. The interruption therefore continues.
- A reference in an expert report such as “agreement on figures without any admission of liability” is also insufficient. The insurer does not take a position on the compensation request. The interruption does not end.
- A communication in which the insurer merely states that the insured’s liability has not yet been proven is not a clear and unambiguous refusal. It only indicates uncertainty. The limitation period does not restart.
By contrast, the interruption does end if the insurer explicitly states that it will not indemnify, or if it proceeds with indemnification. From that point on, a new five-year limitation period begins to run.
The role of the subrogated insurer
When the injured party’s own insurer (for example, an all-risk construction insurer) pays the compensation, that insurer is subrogated to the rights of the injured party. It then holds the same direct right against the liability insurer as the injured party.
This has two important consequences:
- The limitation period begins to run from the harmful event, not from the date of payment by the insurer.
- Any interruption by the injured party also benefits the subrogated insurer.
The subrogated insurer therefore does not receive a “new” limitation period, but steps into the existing legal position of the injured party, including all rules on limitation and interruption.
Practical lessons for claims handlers and legal teams
This case law leads to several practical insights:
- Interruption occurs more easily than many assume: a simple compensation request may suffice. Do not wait for formal litigation to assess limitation.
- The threshold to end an interruption is high: the interruption only ends with a clear, unambiguous, and written decision on compensation.
- “Under investigation” is not a decision: communications stating that the file is still being examined, or that liability is not yet proven, do not end the interruption.
- Limitation is file-specific: years of correspondence do not mean the limitation period restarted. Everything depends on the content of the insurer’s communications.
Conclusion: interruption is simple in theory, but delicate in practice
The mechanism of interruption protects both the injured party and the subrogated insurer, but only if the correct conclusions are drawn from the written communications exchanged between the parties.
In summary:
- The basic limitation period is five years from the harmful event (or the offence).
- The limitation period is interrupted once the insurer becomes aware of the injured party’s intention to seek compensation.
- The interruption only ends with a clear, unambiguous, and written decision on compensation or refusal.
- Doubt, investigation, or provisional statements do not suffice.
- The subrogated insurer takes over the injured party’s rights, including the same limitation rules.
Need help analysing limitation issues in a specific claim?
At Amankwah Law, we help insurers and claims handlers manage complex files with clarity and efficiency. We identify limitation deadlines, analyse interruptions, and translate this into a concrete strategy.
Would you like to review the limitation period in your file? Feel free to get in touch.