Telecom fraud insurance - denial?
Author | Lawyer Guo Xiangfeng
Intermediate people's court: exempt the insurer from the obligation, increase the liability of the insured, and fail to fulfill the obligation of exemption notification, the exemption clause is invalid, and the insurer has no right to refuse compensation!
Interpretation (2) of the Supreme People's Court on Several Issues Concerning the Application of the Insurance Law of the People's Republic of China and Paragraph 2 of Article 17 of the Insurance Law of the People's Republic of China stipulate that the exemption clause exempting the insurer from the obligations that the insurer should undertake according to law and increasing the liability of the policyholder and the insured shall not be effective if the insurance company fails to submit valid evidence to prove that the insurer has fulfilled the obligation to inform the policyholder of the exemption matters.
Recently, the author received a property insurance contract dispute caused by the refusal to insure telecommunications fraud insurance:
Based on the consideration that telephone fraud means cannot be prevented in recent years, the policyholder purchased the bank card security insurance (electronic fraud version) of an insurance company through the mobile Alipay platform. During the valid period of the insurance contract, the policyholder encountered online fraud in the process of matching capital and investing in stocks, and then reported the case to the insurance company and the police respectively.
After the police filed a criminal case for the crime of illegal use of information networks, the insurance company refused to pay on the grounds that it was exempt from liability.
After understanding the case, the author believes that: when concluding the insurance contract, the insurer provided the standard clause, and did not make any explanation to the policyholder for the content of the capital stock investment that exempts the insurer from liability. Therefore, the exemption clause has no effect.
To support my point of view, the author searched and found the following cases, and then shared them with readers.
basic case
On February 19, 2019, policyholder A insured a "Taiping 2019 Family Portrait" protection insurance in Taiping Property Insurance Company with himself as the insured and mother B as the subsidiary insured. The family property insurance protection content in the insurance liability includes parental fraud prevention liability insurance, and the insurance amount is 50,0
00yuan.
Insurance terms: due to phone or SMS fraud and online payment through bank transfer, remittance or third-party network payment platform, resulting in loss of funds balance in the insured's account, after the insured reports to the public security organ, the insurer shall, according to the insurance contract, bear the insurance liability within the scope of the insurance contract for the actual account loss in capital that occurs within 15 natural days before the insured reports the case.
The insurer is not responsible for compensation for the insured's losses in capital and losses other than 15 natural days before reporting the case to the public security organ.
On June 15, 2019, B filed a claim with the insurer, and the defendant replied that the claim needs to be reported to the public security organ.
On June 21, 2019, B reported to the public security for being defrauded: after he lost money in stock trading, he copied his bank account to the mobile bank through the QR code link sent by the instructor and linked his Agricultural Bank of China account, and used the money on the account to recharge and buy "soot" products many times. After the purchase has just started to appreciate, he can withdraw cash; after a large number of purchases, he found that the platform could not log in, and no one in the WeChat group spoke.
As of the time of the police report, a total of 76,000 yuan had been cheated.
On July 16, 2019, the Public Security Bureau issued a certificate: B reported the case of being deceived, which is now under investigation and has not yet been solved.
On July 24, 2019, the insurance company officially issued a notice of refusal to pay B: due to telecommunications fraud, losses caused by bank transfer or other means other than 15 days before the report are not covered by insurance liability.
First instance judgment:Limited insurance company to compensate B fraud prevention liability insurance of 50,000 yuan.
The people's court of first instance held that:
The insurer's prompt and clear statement of the content of the standard contract and the exemption clause is an active obligation, and the time for the prompt and clear statement of the behavior should be at the time of the conclusion of the contract, so as to facilitate the policyholder or the insured to make a contracting choice.
The defendant, Taiping Property Insurance Company, failed to provide evidence that it provided the insured with the insurance standard clause when entering into the contract, nor did it provide evidence that it fulfilled its obligation to prompt or clearly explain the concept, content and legal consequences of the relevant exemption clause, so that the insured could understand the true meaning and legal consequences of the clause.
Therefore, the defendant argued that the reason why B did not report the case within 15 natural days of the fraud and was not liable for compensation could not be established, and the "clause exempting the insurer from liability" had no legal effect on plaintiff B according to law.
second-instance Judgment:The appeal of Taiping Property Insurance Company was rejected and the first-instance judgment was upheld.
The Intermediate People's Court held that:
Although the insurance contract signed by both parties stipulates that "the insured shall not be compensated for losses other than 15 natural days before reporting the case to the public security organ," according to Article 9 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Insurance Law of the People's Republic of China and Article 17, Paragraph 2 of the Insurance Law of the People's Republic of China, the agreement of this clause is an exemption clause that exempts the insurer from the obligations that should be borne by the law and increases the liability of the policyholder and the insured.
The appellant has not submitted valid evidence to prove that the insurer has fulfilled the obligation to inform the policyholder of the prompt explanation of the exemption matters, so the exemption clause is not effective, and the appellant shall bear the insurance liability of 50,000 yuan in accordance with the insurance contract.
Judgment of August 28, 2020: Dismiss the appeal and uphold the original judgment.
Lawyer Guo said:If the insurer fails to fulfill the obligation to inform, the exemption clause will not be effective! This case is similar to the case represented by the author, the difference is that both the risk and the reporter in this case are the mother of the policyholder, while the two cases represented by the author are both the policyholder himself; the same point is that the victims of both cases were found to have been deceived when the financial and stock trading online platform was closed, and in fact the funds were successfully deceived when they were transferred to the designated account of the platform.
According to Article 12 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Insurance Law of the People's Republic of China (2): For insurance contracts concluded through the Internet, telephone, etc., the people's court cannot determine that the insurer has fulfilled the obligation of prompt and clear explanation, including: the insurer cannot prove that it has prompted and clearly stated the clause exempting it from liability in the form of ① webpage, ② audio, ③ video, etc.
Whether it is the informant in this case or the policyholder in the case represented by the author, the reason for the insurance company's refusal to pay is the exemption clause in the insurance contract. Because the insurance application methods in both cases are completed online through the Internet, the insurance company must provide evidence to prove that he has prompted and clearly explained to the policyholder the terms of exemption from liability in the form of webpages, audio, video, etc. Otherwise, the insured's losses within the scope of the insurance agreement must be fulfilled according to law.
The author firmly believes that as long as a fair ruling is made, the insured's insurance interests will definitely be protected by law!
Lawyer Profile
Lawyer Guo Xiangfeng
Senior Partner of
Final execution + insurance refusal rights protection expert
Main focus: non-performing asset major cases (major, difficult, and complex personal or company claims), various insurance claims, refusal to settle claims disputes.
WeChat: 15338767776
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