Effectiveness of termination of a health insurance contract by the policyholder for a full-year insured person

The effectiveness of the termination of a medical expenses insurance contract by the policyholder for a not represented by the policyholder ge-legally adult dependents under § 205 para. 6 1 set SGA does not require proof of an uninterrupted Krankenversicherungsschut-zes for dependents.

BGH JUDGMENT IV ZR 140 / 13 of 18. December 2013 termination health insurance

VVG § 205 Abs. 6

The effectiveness of the termination of a medical expenses insurance contract by the policyholder for a not represented by the policyholder ge-legally adult dependents under § 205 para. 6 1 set SGA does not require proof of an uninterrupted Krankenversicherungsschut-zes for dependents.

BGH, judgment of the 18. December 2013 - IV ZR 140 / 13 - OLG Cologne
LG Cologne
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The IV. Civil Senate of the Federal Supreme Court has, through the chair of Judge Mayen, the Judge Harsdorf-Gebhardt, the Judge. Karczewski, Lehmann and the judge Dr. med. Brockmöller to the hearing of the 18. December 2013
recognized for right:
The revision against the judgment of the 20. Civil Senate of the Higher Regional Court of Cologne from the 8. March 2013 will be rejected at the defendant's expense.
By rights
offense:
The parties dispute the validity of the termination of a co-insurance in a medical expenses insurance concluded by the plaintiff at the defendant. The contract initially included the 29. November 1991 born son of the plaintiff involved as a co-insured. In November 2011, the defendant informed the plaintiff that the son was being redeployed to the 1 adult rate. January 2012 an increase in contributions from 180,58 € to 397,91 € with. The plaintiff then announced the co-insurance of his son with letters from the 27. November 2011 to 31. December 2011. He also directed his son by e-mail from the 24. November 2011 on the requirement to reassure themselves now. The defendant informed the claimant by letter from 2. December 2011 with, the notice of his son will not take effect until he has proof of follow-on insurance
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yield to. With attorney writing from the 8. In December 2011, the plaintiff asked his son to provide health insurance coverage himself, agreeing to reimbursement. The son shared a lawyer's letter from the 14. December 2011 with, he will endeavor to insurance in the student rate, while the change to another insurer is not eligible. In fact, he did not conclude a new health insurance contract in the subsequent period, so that the defendant informed the claimant by letter from 12. January 2012 and 21. February 2012 announced that it could not confirm the effectiveness of the termination of the contract for his son.
The plaintiff has sued the defendant for the assertion that co-insurance for his son has become 31. December 2011 has expired. He has also demanded the payment of pre-trial law fees. The district court dismissed the claim. The Oberlandesgericht upheld the application for annulment and dismissed the remainder of the application. The revision of the defendant is directed against this.
Reasons:
The appeal is unsuccessful.
I. The Court of Appeal, whose decision is published in r + s 2013, 391, has executed the notice of termination of the claimant of the 27. November 2011 reported that the crane
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insurance with effect on 31. December 2011 ended. The effectiveness of the termination does not depend on the proof that the son of the applicant is insured with a new insurer without interruption. The compulsory proof of an endowment insurance, which is regulated in § 205 para. 6 VVG, does not apply to co-insured persons of full age. The policyholder is not subject to the restriction of the right of termination under § 205 para. 6 VVG when terminating an insurance policy by which the insured third party fulfills its own insurance obligation. That's what the law says. For the conclusion of a new contract for the insured person, the policyholder would only be able to legally represent it. For a full-year co-insured, he does not have it in hand, for the insured person to conclude a new health insurance contract. Apart from the fact that the law should not demand something legally impossible from the policyholder, if the insured person does not sign a new contract, the latter would be forced to continue the contractual relationship on a permanent basis. This would constitute a grave violation of his discretionary freedom. Sufficient protection of the insured person in the event of termination of the co-insurance by the policyholder would be provided by § 207 para. 2 VVG with the right of the insured provided for therein, the contract itself as the policyholder continue to reach.
II. That withstands legal review.
The plaintiff was entitled to co-insurance of his adult son with effect to the 31. December 2011 without having to prove a seamless follow-up insurance for this.
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1. In accordance with § 205 para. 6 sentence 1 VVG, unlike paragraphs 1 to 5, the insurer may terminate an insurance that fulfills an obligation under § 193 para. 3 sentence 1 VVG only if he agrees with another insurer for the insured person concludes a new contract that satisfies this obligation. According to § 193 para. 3 sentence 1 VVG, every person domiciled in Germany is required to be bound by an insurance undertaking authorized to conduct business in Germany for itself and for the persons legally represented by it, insofar as they can not conclude contracts themselves. to conclude and maintain a health insurance for the conditions specified therein. The purpose of this rule is to ensure that the insured person has seamlessly adjacent insurance cover if he cancels his previous contract (see BT's printing 16 / 4247 page 68, as well as the Senate's decision of the 12.) September 2012 IV ZR 258 / 11, VersR 2012, 1375 Rn. 21; MünchKomm-VVG / Hütt, § 205 Rn. 58; HK-VVG / Rogler, 2.Rep. § 205 Rn. 31).
2. The question as to whether or not proof of end-of-life insurance by the policyholder is required in the termination of the medical expenses insurance contract for a full-year co-insured in accordance with § 205 para. 6 sentence 1 VVG is assessed differently.
a) Case law and literature predominantly assume that the obligation to provide proof does not exist in these cases, since the insurance obligation is expressly limited to the policyholder himself and to persons legally represented by him in accordance with § 193 para. 3 sentence 1 VVG (LG Stuttgart r + s 2013, 84 to terminate a
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Medical expenses insurance contract in which the adult's daughter of the policyholder was co-insured; LG Hagen ZfS 2011, 40 in the case of co-insurance of the divorced spouse; AG Düs-seldorf VersR 2013, 572 to co-insure a minor baby child without legal representation; Langheid in Römer / Langheid, VVG 3. Ed. § 205 Rn. 18; Reinhard in Looschelders / Pohlmann, VVG 2. Ed. § 205 Rn. 22; Roessler, VersR 2013, 1478, 1481 f.). The counter-concept assumes that even the full-year co-insured person falls under § 193 para. 3 sentence 1 VVG and therefore the proof of a follow-up insurance protection must be provided (Rogler, jurisPR VersR 3 / 2011 Note 3; HK-VVG loc.rn. 31, further evidence for Rößler, VersR 2013, 1478, 1479).).
b) In any event, the former view is correct. In the case of the cancellation of sickness benefit insurance, the policyholder shall not be required to provide proof of seamless health insurance cover for a legally represented co-insured person not legally represented by him.
aa) The dispensability of the proof, however, can not be justified by the fact that the insured person of full age does not have an insurance obligation in accordance with § 193 para. 3 sentence 1 VVG. This provision does not use the term "policyholder", but requires any person domiciled in Switzerland to maintain health insurance cover for himself and his / her legal representatives. In that regard, it is recognized that this compulsory insurance can also be done by co-insurance of a full-year insured person (Voit in Prölss / Martin, VVG 28, Aufl § 193 Rn 9; § 205 Rn 43; Rogler, jurisPR-VersR 3 / 2011 Note 3).
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bb) However, it does not follow from this that the policyholder would be prevented from terminating an insurance contract for a co-insured person of age. By § 205 para. 6 sentence 1 VVG to the insured a seamlessly adjacent insurance protection is to be made possible. This objective is achieved by § 207 para. 2 sentence 1 in conjunction with para. 1 VVG. According to this, the insured person is entitled, if the policyholder terminates the insurance relationship as a whole or for individual insured persons, to declare the continuation of the insurance relationship in his own name within two months. In order to guarantee this right of continuation, § 207 para. 2 sentence 2 VVG stipulates that the termination only becomes effective if the insured person has become aware of the notice of termination. The full-year co-insured is therefore - what has happened in the case of a dispute after the error-free determinations of the Court of Appeal - to inform of the termination by the policyholder. He then has the right to ask for the continuation of the contract in his own name. Contrary to the opinion of the revision, the adult co-insured is therefore by no means without any health insurance protection. Rather, it is in his hands to explain the continuation of the contractual relationship. Hereby he fulfills at the same time his obligatory obligation from § 193 para. 3 sentence 1 VVG. Even if this insurance obligation can be met by co-insurance, this does not change the fact that the compulsory insurance covers the adult co-insurer himself and not the policyholder. The co-insured of full age is insofar as the person referred to in § 193 para. 3 sentence 1 VVG domiciled in Germany (see LG Stuttgart, 2013, 84, LG Hagen ZfS 2011, 40).
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In a different understanding of § 205 para. 6 sentence 1 VVG § 207 para. 2 sentence 1 and 2 VVG would have no own scope for the adult co-insured more. If the termination of the policyholder in accordance with § 205 para. 6 VVG would only be effective if it provided proof of uninterrupted insurance protection for the insured person, it would be subject to the insured person's right of entry in § 207 para. 2 VVG and the requirement of his knowledge of the termination of the policyholder.
cc) Against the requirement of proof of an uninterrupted health insurance cover as a condition of termination of the policyholder for a full-year co-insured further argues that the policyholder is not able to do without a power of attorney of the adult insured person for this a connection insurance in the sense of § 205 Para. 6 sentence 1 VVG. Under the principle of proportionality, the law must not impose any conduct obligations on the policyholder which he alone can not provide and which are legally impossible for him without the cooperation of a third party. Otherwise, the limit of reasonableness would have been exceeded (see Jarass in Jarass / Pieroth, Basic Law 12, Article 20 No. 86, Dreier / Schulze-Fielitz, Basic Law 2, Edition Art. 20, no. 184). That's how it would be here.
Legal representation, as mentioned in § 193 para. 3 sentence 1 VVG, does not exist in such cases. On the other hand, if the audit refers to the fact that the policyholder does not conclude a health insurance contract in the name of the co-insured, so that it does not require any legal or contractual power of representation, it is true that co-insurance in one
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Medical insurance contract for an insurance for third party account and thus a real contract in favor of third parties within the meaning of § 328 para 1 BGB acts (Senate judgment of 8 February 2006 IV ZR 205 / 04, VersR 2006, 686 Note 25). However, this is not about the fact that the policyholder, in order to comply with an obligation under § 205 para. 6 sentence 1 VVG, would be required to conclude another insurance contract as policyholder in his own name and the adult third in this as an insured person. An insurance contract obligation to conclude such a contract in its own name does not exist. On the contrary, the insured third-party third party is itself subject to compulsory insurance in accordance with § 193 para. 3 sentence 1 VVG and thus generally obliged to conclude and maintain an insurance contract in his own name. Even if he can comply with his compulsory insurance by being insured with a policyholder, this does not change the fact that the compulsory insurance covers him.
Contrary to what the Board of Appeal thinks, in cases in which the adult member with the same rights refuses to take out his own insurance contrary to the legal obligation, the policyholder is entitled to sue him for the conclusion of such insurance and by him does not adequately protect the contributions paid up to that point. The right of termination - and thus the freedom of contract - of the policyholder would be unreasonably undermined if he was overburdened by the risk of legal action and any incapacity of the co-insured, although the objective of the statutory provision, the co-insured a seamlessly adjacent insurance coverage
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to allow - as stated above - is already sufficiently ensured by the continued right provided for him in § 207 VVG.
dd) Contrary to the view of the revision, it is irrelevant whether the plaintiff is under an obligation to pay the premiums for a health insurance. In the relationship between the policyholder and the insurer, this family law relationship between the policyholder and the insured does not matter. The decision on the effectiveness of a termination in accordance with § 205 para. 6 sentence 1 VVG in the relationship between the policyholder and the insurer does not depend on whether and to what extent the policyholder is legally obliged under the maintenance of the insured to cover the costs of the health insurance to take over. The full-year insured third party is himself under insurance contract law to comply with his compulsory insurance under § 193 para. 3 sentence 1 VVG. Another question is whether the policyholder is required to pay him the costs incurred.
ee) The risk that in the case of the authorization of a termination of the policyholder for the co - insured even without proof of follow - up insurance, the previously insured adult third party of its compulsory insurance under § 193 para. 3 sentence 1 VVG is not sufficient, is not a specific risk that only in such cases. There is also the risk that insured persons will not conclude an insurance contract contrary to § 193 para. 3 sentence 1 VVG. In order to counteract this, the legislator has, among other things, introduced the obligation to pay the premium surcharge in § 193 para. 4 VVG. In any case, the risk that the adult
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In the event of the termination of the contract by the policyholder itself, no insurance contract is concluded that can not be counteracted by the fact that the policyholder is in fact made impossible to terminate such a contract. This would entail a disproportionate interference with the contractual freedom of the policyholder.
Mayen Harsdorf-Gebhardt Karczewski
Lehmann Brockmöller
lower courts:
LG Cologne, Decision of 10.10.2012 - 23 O 88 / 12 -
Cologne Higher Regional Court, Decision of 08.03.2013 - 20 U 218 / 12 -

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