One spouse deliberately starts a fire in the family home. Both spouses own the property and are insured under the same fire insurance policy.
An employee intentionally causes damage to a third party. The employer is held civilly liable for that damage.
A driver intentionally causes an accident with a vehicle owned by another insured person.
In those circumstances, can the insurer refuse cover to everyone insured under the same insurance contract?
Not automatically.
Intent under Belgian insurance law is personal in nature. In principle, only the insured who personally and intentionally caused the insured event loses the right to cover.
The personal intent of one insured cannot therefore automatically be raised against other insured persons who were not involved in causing the insured event.
In brief
- Article 62 of the Belgian Insurance Act applies to the person who intentionally caused the insured event.
- Intent by one insured does not automatically affect every other insured under the same policy.
- A family relationship, joint ownership or common insurance policy is not sufficient to attribute one insured’s intent to another.
- A person who is merely civilly liable for the conduct of another has not, for that reason alone, intentionally caused the insured event.
- The insurer must establish separately for each insured that the intentional conduct can personally be attributed to that person.
- Another insured may nevertheless lose cover where that person participated in the intentional act or instructed another person to cause the damage.
The starting point under Article 62 of the Belgian Insurance Act
Article 62, first paragraph, of the Belgian Insurance Act provides:
“Notwithstanding any clause to the contrary, the insurer cannot be required to provide cover to the person who intentionally caused the insured event.”
The wording of the provision is important.
It does not state that every insured event involving intent falls entirely outside the scope of the insurance contract. It provides that the insurer is not required to provide cover to the person who intentionally caused the insured event.
The refusal of cover is therefore linked to the individual insured who voluntarily and consciously intended to cause damage.
The intentional act of one insured does not automatically cause every other insured to lose the right to cover. It must be assessed separately for each insured whether that person personally acted intentionally.
For a discussion of the meaning of intent under Belgian insurance law, see our earlier article: When Is an Insured Event Intentionally Caused under Belgian Insurance Law?
First determine who is claiming cover
When assessing the personal nature of intent, the first question is who is claiming the insurance benefit.
The policyholder, insured and beneficiary are not necessarily the same person.
- The policyholder is the person who concludes the insurance contract.
- The insured is the person whose interest, person or liability is covered by the contract.
- The beneficiary is the person entitled to receive the insurance benefit under the contract.
A single insurance contract may also cover several insured persons.
Under a fire insurance policy, for example, both spouses may be insured in respect of their interest in the property. Under comprehensive motor insurance, both the owner and an authorised driver may qualify as insured persons. A liability insurance policy may also cover several members of a household or business.
For each person separately, the insurer must therefore consider:
- that person’s capacity under the insurance contract;
- which interest or liability is covered by the contract;
- whether that person personally and intentionally caused the insured event;
- whether that person participated in preparing or carrying out the intentional act.
The judgment of the Belgian Court of Cassation of 8 May 2014
The Belgian Court of Cassation expressly confirmed the personal nature of intent in a judgment of 8 May 2014.
The case concerned a vehicle owned by a man and insured under a comprehensive motor insurance policy with AG Insurance. His wife was also an insured person under the insurance contract.
The wife intentionally caused an accident with the insured vehicle.
The owner subsequently claimed compensation from AG Insurance for the damage to the vehicle under the comprehensive insurance cover. He had not personally caused the insured event and no intentional act was alleged against him.
AG Insurance nevertheless refused cover. The insurer relied on a policy clause providing that no compensation was due where the insured event had been caused intentionally by an insured person.
The Court of First Instance accepted that reasoning. It held that the owner could not claim under the comprehensive insurance policy because his wife, who was also an insured person, had intentionally caused the insured event.
The Court of Cassation set that decision aside.
According to the Court, the right to insurance cover may only be denied to the insured who personally committed an intentional act.
The personal intent of one insured cannot cause another insured, who did not personally act intentionally, to lose the right to cover.
A policy clause cannot be applied in such a way that the personal intent of one insured is automatically raised against every other insured under the policy.
In this case, the owner of the vehicle had not been involved in intentionally causing the accident. Since no intentional conduct was alleged against him, the insurer could not refuse him comprehensive cover solely because of his wife’s personal intent.
The key lesson from the judgment
The judgment confirms that, where several persons are insured, the position of each insured must be assessed separately.
The relevant question is not merely whether someone insured under the policy intentionally caused the insured event.
For every person claiming cover, it must be determined whether that person personally:
- voluntarily and consciously intended to cause damage;
- performed the act that caused the damage;
- instructed another person to cause the damage;
- acted as a co-author or accomplice;
- otherwise personally participated in causing the intentional insured event.
It is therefore not sufficient that:
- the person responsible and the other insured are covered under the same policy;
- they are spouses, relatives or members of the same household;
- the other insured owns the damaged property;
- the other insured may be civilly liable for the damage;
- the policy states that intent by “an insured person” is not covered.
The insurer must establish why the person against whom cover is refused personally acted intentionally or personally participated in causing the intentional insured event.
What does this mean for co-insured persons?
Where several people are insured under the same insurance contract, each insured has, in principle, an individual right to cover.
The insurer may refuse cover to the insured who intentionally caused the damage. It cannot automatically use that person’s intent to refuse cover to another insured.
The mere fact that both persons:
- are insured under the same policy;
- own the same property;
- belong to the same household;
- are active within the same business;
- are held liable for the same damage;
is not sufficient to attribute one person’s intent to the other.
The insurer must make a separate legal and factual assessment for each insured.
Spouses and co-owners
The personal nature of intent is particularly relevant where spouses or other co-owners jointly insure an asset.
Suppose two spouses jointly own a property and are both insured under the fire insurance policy. One spouse deliberately starts a fire. The other spouse was not involved in starting it.
The insurer may rely on Article 62 of the Belgian Insurance Act against the spouse who started the fire. It does not automatically follow that the other spouse also loses the right to cover.
The fact that a person is the spouse, co-owner or co-insured of the person responsible is not sufficient to attribute that person’s personal intent to the other insured.
The judgment of the Belgian Court of Cassation of 8 May 2014 illustrates the same principle in the context of comprehensive motor insurance. The owner of the vehicle retained his right to cover, even though his wife, who was also insured under the policy, had intentionally caused the accident.
For each insured separately, it must therefore be determined whether that person personally acted intentionally and whether their own interest is covered by the relevant insurance cover.
Vicarious liability is not personal intent
The personal nature of intent is also important where a person is civilly liable for the conduct of another.
The law may make one person liable for damage caused by someone else. This is generally referred to as vicarious liability.
Examples include:
- the liability of an employer or principal for an employee or agent;
- the liability of parents or other persons exercising authority over a minor;
- the liability of a legal entity for certain conduct of its corporate bodies;
- the liability of a principal tenant for certain conduct by a subtenant.
The fact that a person is civilly liable for another person’s intentional act does not mean that the liable person personally and intentionally committed that act.
Liability for another person’s conduct and the attribution of intent under insurance law are separate questions.
The insurer cannot therefore automatically raise the personal intent of the person who caused the damage against someone who is only vicariously liable.
Employer and employee
An employee may intentionally cause damage to a customer, colleague or third party while carrying out work.
The employer may, subject to the applicable conditions, be held liable for that damage. It does not follow that the employer personally and intentionally caused the insured event.
Where the employer is held liable solely in its capacity as principal, the insurer cannot automatically use the employee’s personal intent to refuse cover to the employer.
The assessment may be different where the employer personally:
- instructed the employee to cause the damage;
- consciously participated in the intentional act;
- decided that the damage should be caused;
- committed a separate intentional act that caused the insured event.
In that situation, the employer may have committed an intentional act of its own rather than being merely liable for the conduct of the employee.
Parents and minor children
The same distinction may arise under private-life liability insurance.
Where a minor intentionally causes damage, the insurer may, subject to the applicable conditions, rely on the personal nature of that intentional act against the minor.
It does not automatically follow that the insurer may also refuse cover for the parents’ liability.
The parents have not personally and intentionally caused the insured event merely because a statutory rule of liability applies to them.
The position may be different where a parent personally participated in causing the insured event, instructed the minor to act or committed an intentional act of their own.
Whether the minor’s intent may be raised against the injured party is a separate legal question. It concerns the injured party’s direct action against the liability insurer and will be examined in another article.
Tenant, subtenant and occupant
Several persons may also be involved in the same insured risk in a tenancy relationship.
Where a subtenant or occupant deliberately starts a fire, the principal tenant may potentially be held civilly liable for the resulting fire damage.
That potential liability does not mean that the principal tenant personally started the fire or intended to cause damage.
The insurer cannot therefore attribute the personal intent of the subtenant or occupant to the principal tenant without additional evidence.
It must establish that the principal tenant personally:
- participated in starting the fire;
- instructed another person to start it;
- consciously assisted in preparing or carrying out the act;
- intended to cause damage through an act or omission of their own.
Contractual or statutory liability for the subtenant is not sufficient in itself.
Can a director’s intent be attributed to a company?
The assessment is more complex in relation to legal entities.
A company necessarily acts through natural persons, including directors, managers, senior officers and employees. The intentional act of one of those persons is not, however, automatically the intentional act of the company.
A distinction must be made between:
- a situation in which the company is merely liable for the conduct of a director or employee; and
- a situation in which the intentional conduct can be regarded as an act of the company itself.
Where an employee or director intentionally causes damage for purely personal reasons, the company may potentially be liable for that conduct. That is not necessarily sufficient to treat the company itself as the intentional author for insurance purposes.
The assessment may be different where the decision to cause damage:
- was taken on behalf of the company;
- originated from the persons determining its policies;
- was connected to the company’s own operations or interests;
- must, in the particular circumstances, be regarded as conduct of the legal entity itself.
The natural person’s formal title is not necessarily decisive. Their actual role, decision-making authority and responsibility within the organisation may also be relevant.
The insurer must establish why the intention of the natural person should, in the particular circumstances, be regarded as the company’s own intent.
When can a co-insured nevertheless lose cover?
The personal nature of intent does not mean that an insured will always retain cover merely because that person did not physically perform the act that caused the damage.
The insurer may also rely on Article 62 against another insured where it proves that this person was personally and intentionally involved in causing the insured event.
This may be the case where the insured:
- personally caused the damage;
- acted as a co-author or accomplice;
- instructed another person to cause the damage;
- consciously assisted in preparing or carrying out the insured event;
- intended to cause damage through an omission of their own;
- took the intentional decision as an act of the business itself.
The decisive point remains that the insured concerned personally intended to cause damage.
Can the policy extend one insured’s intent to every insured?
An insurance contract cannot neutralise the personal nature of Article 62 by providing that intent by one insured automatically causes every other insured to lose cover.
The Belgian Court of Cassation confirmed this in its judgment of 8 May 2014.
A policy clause could not be applied to exclude the owner of the vehicle from cover because of the intentional conduct of his wife, while no intentional act was alleged against the owner himself.
This does not prevent an insurance contract from containing other valid provisions defining the scope of cover.
It therefore remains necessary to determine:
- who is insured under the policy;
- which interest or liability is covered;
- whether the damage falls within the scope of the cover;
- whether a separate and valid exclusion applies.
Such a provision cannot, however, be used as a collective forfeiture under which the personal intent of one insured automatically affects every other insured.
Who must prove personal attribution?
An insurer refusing cover on the ground of intent bears the burden and risk of proof.
The insurer must establish not only that the insured event was caused intentionally, but also that the intentional conduct can personally be attributed to the insured against whom cover is refused.
It is not sufficient to show that:
- another insured acted intentionally;
- the persons concerned are relatives or business partners;
- the insured is civilly liable for the person who caused the damage;
- the insured could benefit from the insured event;
- the insured owns the damaged property.
There must be concrete evidence of the insured’s personal involvement and intention to cause damage.
The position of the injured party is a separate question
The personal nature of intent primarily concerns the relationship between the insurer and the various insured persons.
A separate question is whether a liability insurer may raise its insured’s intent against an injured party bringing a direct claim against the insurer.
This is a distinct legal issue.
The answer depends, among other matters, on:
- the nature of the liability insurance;
- whether the insurance is compulsory or non-compulsory;
- Articles 150 and 151 of the Belgian Insurance Act;
- any specific statutory protection afforded to the injured party.
The enforceability of intent against an injured party will therefore be examined in a separate article.
Practical checklist
Where one insured has intentionally caused the insured event, at least the following questions should be examined:
- Who is claiming cover?
Is it the person who caused the damage, another insured, the policyholder, an owner or a beneficiary? - What is that person’s capacity under the policy?
Is their own interest or liability covered by the insurance contract? - Did that person personally intend to cause damage?
Or are they only being held liable because of their legal or factual relationship with the person who caused the damage? - Was there personal participation?
Did that person commit, prepare, instruct or consciously assist in carrying out the act? - Is the liability merely vicarious?
Liability for another person’s conduct does not automatically constitute a personal intentional act. - What evidence does the insurer rely upon?
Personal involvement and an intention to cause damage must be established by concrete evidence. - Does another relevant policy provision apply?
A separate valid exclusion must be distinguished from an impermissible extension of one insured’s personal intent.
Conclusion
Intent by one insured does not automatically cause every other insured under the same insurance contract to lose the right to cover.
Article 62 of the Belgian Insurance Act applies to the person who intentionally caused the insured event. The insurer must therefore assess and establish separately for each insured whether that person voluntarily and consciously intended to cause damage.
A family relationship, joint ownership, contractual relationship or vicarious liability is not sufficient to attribute the personal intent of the person responsible to another insured.
The outcome may be different where the other insured participated in causing the insured event, instructed another person to act or committed an intentional act of their own.
The judgment of the Belgian Court of Cassation of 8 May 2014 clearly illustrates that principle. The owner of a comprehensively insured vehicle could not be denied cover solely because his wife, who was also insured under the policy, had intentionally caused the accident.
The distinction is highly relevant in practice. It determines whether the insurer may refuse cover only to the person who intentionally caused the insured event or also to another insured who was personally involved in causing it.
Frequently asked questions
Does one spouse lose cover when the other spouse deliberately starts a fire?
Not automatically. The insurer must establish that the spouse claiming cover was personally involved in starting the fire or personally and intentionally intended to cause damage.
Can an employee’s intent be raised against the employer?
Not where the employer is merely civilly liable for the employee. The position may be different where the employer instructed the employee, consciously participated in the conduct or committed an intentional act of its own.
Does an owner lose comprehensive motor cover when another insured driver deliberately causes an accident?
Not solely for that reason. According to the judgment of the Belgian Court of Cassation of 8 May 2014, the driver’s personal intent cannot automatically be raised against another insured owner who did not personally commit an intentional act.
Can a policy provide that intent by one insured affects all insured persons?
A policy cannot override the personal nature of Article 62 by treating one person’s intent as a collective forfeiture of cover for every other insured.
Is a director’s intent automatically the company’s intent?
No. It must be determined whether the company is merely liable for the director’s conduct or whether the intentional act can be regarded as a decision or act of the company itself.
