Right of recourse: prerequisite and burden of proof

A recent ruling by the Supreme Court of Cassation reminds us of some unfailing concepts governing the RCA

The case.On 9.09.2007, two motorcyclists collided head-on and both lost their lives.In 2010, the relatives of one of the two drivers sued, as co-obligor, the co-owner of the motorcycle driven by the other driver, as well as the insurance company.Appearing in court in a timely manner, the insurance company argued that at the time of the accident the driver was not qualified to drive the vehicle, as he held only a “B” license, but not also an “A” license, which is required to drive motorcycles. For these reasons, he concluded for the rejection of the plaintiff's claim, by virtue of the clause in the liability insurance contract, insofar as it excluded coverage in the event of an accident caused by a driver who was not qualified to drive.The Supreme Court of Cassation, in ruling No. 4756 of Feb. 22, 2024, addressed the issue, identifying the scope, content and prerequisite of the right of recourse. Decision.Article 144, second paragraph, of the Insurance Code grants the insurance company the right of recourse against the person who has the capacity of “insured” (i.e., pursuant to Article 2054 of the Civil Code, the owner, or co-owner, driver, usufructuary, purchaser under a reservation of dominion agreement, or user).All of the above persons fall into the category of “insured,” on the sole condition that they have driven the vehicle with the consent of the owner. As a result, all of them will be eligible for insurance coverage in the event of a claim, and all of them will be exposed to recourse action if the conditions are met.However, the courts of legitimacy clarify that the prerequisite for this right can be found in the contract: that is, the holder of the right of recourse can act only if there is a risk delimitation clause. And if a risk delimitation clause were missing in the insurance contract, recourse cannot be exercised, because the prerequisite would be lacking.Therefore, the basis of this right is a contractual covenant, the action of which is contractual in nature, and, like all judgments arising from the contract, the liability insurer has the burden of proving that the contract contains a risk delimitation clause, such that in the specific case it can refuse or reduce payment. For further study:- Civil Cassation, Judgment No. 4756/2024;- Article 144, second paragraph, Insurance Code.