Settlement of damages in Italy for road accidents involving foreign vehicles

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1 Settlement of damages in Italy for road accidents involving foreign vehicles 1 Claims procedure, the Italian bureau, claims for out-of-court damages against the U.C.I. 1.1 The Italian bureau 1.2 Claims for out-of-court damages against the U.C.I. 1.3 New code for private insurance companies 2 The judicial phase of settling damages 2.1 Mediation procedure 2.2 Competence of Justices of the Peace and the Courts 2.3 Combining direct action with that of article 2054 of the civil code 2.4 The introductory phase of the judgement 3 Significant legal questions and exceptions raised in judgements against the U.C.I. 3.1 Existing contrasts between legal prescriptions, in particular the code of private insurance companies and judicial decisions. 3.2 The settlement of material damages, ongoing contrasts in jurisprudence referring to what is known as technical stoppage, payment of VAT on estimates, establishing commercial value of vehicle before the accident. 3.3 Passive legitimacy of the U.C.I. (Italian Central Office). 3.4 Stolen foreign vehicle that causes an accident. 3.5 The maximum level of catastrophic damages and the claims limit set by U.C.I. 3.6 The joinder of parties according to article 140 of the insurance code. 3.7 The releasing sequester in the event of an over-the-limit accident aimed at avoiding conviction for appropriate and inappropriate mismanagement. 3.8 Summoning a foreigner (who is also owner of the vehicle) and the insurance company at the U.C.I. without any vocatio in ius against the U.C.I. but with preliminary notification to the U.C.I. consortium. 3.9 The hold-harmless summons by the U.C.I Formal interrogation of the summoned foreigner in default The international rogatory The probatory value of the CAI form signed by a foreigner Ceding credit following a road accident, material damages and injuries The indivisibility of the settlement procedure for material damages and claims for injury damages. The U.C.I. does not allow separation of claims The burden of specific contestation (article 115 of the code of civil procedure. 1

2 4 Settlement of damages for injuries (micro-permanent and macropermanent) 4.1 Biological damage 4.2 Damage with reduction of generic working ability 4.3 Damage with reduction of specific working ability 4.4 Coenaesthesia affecting working ability 4.5 Subjective moral damages 4.6 Existential damages 4.7 Damages by death 4.8 Damages for a ruined holiday 5 Collaboration of the mandator for better handling of the case compared to the preclusions of civil cases 5.1 Preclusions before court 5.2 Preclusions before Justice of the Peace 5.3 Summarised table 6 Applicable rights and compensation in favour of foreign citizens 6.1 A first solution: the socio-economic context of the place where the damaged party resides is irrelevant as regards the settlement of damages not involving property. 6.2 The preferable solution: the amount of the damage claim must always be commensurate with the socio-economic conditions of the place where the damaged party normally resides. 6.3 A case in point subject to the fourth directive (vehicles). 6.4 Residual questions not subject to the fourth directive (vehicles). 6.5 EU regulation no. 44/01: questions regarding the applicability of this norm to road accidents. 6.6 Direct action against the mandator for the settlement of accident claims. 7 The direct indemnity 2

3 1 The claims procedure, the Italian bureau, requests for out-of-court settlements submitted to the UCI 1.1 The Italian bureau 1.2 Requests for out-of-court settlements submitted to the UCI 1.3 The new code for private insurance companies 1.1 The Italian bureau EXAMPLE If a French vehicle, travelling through Italy, comes into collision with an Italian vehicle, the injured party can request payment of the damages by the Italian bureau (UCI), which will pay what is due, then charging the French bureau which, in the end, will obtain reimbursement from the French company which issued the green card. The bureau has two functions: on the one hand, it deals with claims for damages occurring within its territory by anyone who has suffered damage caused by a vehicle registered abroad and having a green card (handling bureau), and on the other hand, guarantees to reimburse, to the equivalent bureau in the country where the accident happened, the amounts paid to the damaged parties when the vehicle that caused the accident is covered by a green card issued under its responsibility (paying bureau). The operation of the system is guaranteed by the fact that all the bureaux have signed an international convention, called Uniform Agreement between Bureaux, which identifies the rights and obligations of the adherents. The main points of the above convention are as follows: payment of compensation for damages by the bureau of the country where the accident happened, in its capacity as handling bureau, by applying the national laws (lex loci commissi delicti) and the exclusive competence of the handling bureau to interpret such laws; reimbursing the handling bureau for the amounts paid by the insurer of the vehicle that caused the accident, with the subsequent substitution of the bureau, of which the insurer is a member, as the paying bureau in the event of their default. 3

4 Handling bureau, the organisation in the country where the accident happened, receives the request for default and, having verified the existence of the assumptions listed in point an and in point quantum, pays the compensation established by the damaged party. Paying bureau, the organisation that issued the Green Card, guarantees to repay the amounts advanced by the handling bureau to the damaged party. The insurer who drew up the insurance contract for the damaged vehicles reimburses the paying bureau. 4

5 Query Is a vehicle registered in a country that does not recognise the green card system allowed to transit in Italian territory? For all vehicles registered in countries that do not recognise the green card system, it is necessary to draw up a frontier-issued temporary policy, known as a pink card, at the point-of-entry customs office; it can be used in all EU countries according to article 125, paragraph 3, letter (a), of the insurance code which refers the discipline of this particular contract to specific regulations. These regulations were issued with a ministerial decree (Decree of the Ministry for Economic Development no. 86 of 1 April 2008), article 6 of which contains the following dispositions: the contract can only be issued for vehicles travelling in Italy temporarily; the duration of the contract is not less than fifteen days and not more than six months; the contract is stipulated with insurance companies authorised to operate in Italy, the automobile civil responsibility branch, who collaborate with the Italian Central Office of which they are members. Finally, it is important to know that the ISVAP has explicitly forbidden this type of contract for vehicles registered in countries of the European Union (Report on ISVAP s activities for year 1996, volume I, page 225). 1.2 Requests for out-of-court settlements submitted to the UCI Article 22 of law no. 990 of 24 December 1969, states that the feasibility of the judicial request put forward by the injured party in order to obtain compensation for the harm suffered following a road accident, depends on the prior consignment of a request for compensation, with a minimum content shown in the above norm, as well as a deadline fixed at sixty days as a general rule; failure to meet this deadline leads to the closure of the controversy with a standard formula. 1.3 The new code for private insurance companies The new code for private insurance companies (legislative decree no. 209/2005) recognises the need for the obligation of prior request to the insurance company as a condition for further proceedings and subsequent judicial action, if any, but with some significant new features. First and foremost, this provision is contained in just one article of law no. 990/69, and has been used in several norms and adapted to specific situations of the 5

6 various compensation actions concerning both the quality of the injured party and the passive subject. The new norm is not limited to requiring the delivery of the notification letter but, differently from law no. 990 of 24 December 1969, states that the compensation action can be put forward only after sixty days, or ninety days in the case of damages to the person, from the date when the injured party requested compensation from the insurance company, by registered letter with delivery notification having followed the rules set out in article 148 (article 145 of the insurance code); it is no longer sufficient to deliver the compensation request; to achieve its aim, the request must be prepared according to the rules shown in the above article. On the other hand, article 148, paragraph 5 of the insurance code states that, in the case of an incomplete default letter, the insurance company can request the necessary integrations thereby suspending the terms for the proposal of offer and, indirectly, for proposing the application. Relevant jurisprudence Formalised orientation Court of Rome, section. XII, 15 July 2010, Dott. Ranieri It is true that the notification letter contains the analytical reconstruction of the accident in question and the report by the Carabinieri but it is also true that while it indicates the various fractures suffered by the injured party, it does not say whether there has been full recovery or not, or what permanent lesions there are, since the injured party is still in hospital on the date of the request, as shown above; no medical certificates are attached (except for the police report) nor, importantly, medical attestation proving recovery with or without permanent lesions as requested by the new norm with the result that the action must be barred to further proceedings. Relevant Anti-formalised jurisprudence orientation Court of Nola, 4 December 2007, Dott. Notaro It should be pointed out that linking the damaged parties, regarding further proceedings of the application, to the specific elements required by article 148 of the insurance code, meets the need of enabling the insurance company to evaluate analytically the resulting compensation which the accident could lead to; this fact, regarding the information required in the above disposition, shows an attempt to align the amount of the damages shown in the notification letter and the amounts put forward in court hearings, since it is no longer permissible to indicate such 6

7 amounts generically and all-inclusively. In fact, as has been pointed out by previous commentators, notwithstanding the forecast of more stringent conditions regarding the contents of the notification letter, the new norm limits the number of situations which previously allowed the existence of equivalent circumstances, to the extent that the condition of moving on to further proceedings seems to have been met. Therefore, following the notification of the damaged party, in cases where the insurance company has taken practical steps to start the procedure for settling the damages, it seems unlikely that the situation is barred from further proceedings. Notification letter against the U.C.I. Justice of the Peace, Marigliano, 15 February 2007, Dott. Chianese The request for compensation, given the peculiarity of representation by the Italian Central Office (U.C.I.), does not have to be accompanied by all the information listed in article 148 of the insurance code, but must contain only the description of the fact and the willingness to allow the items to be viewed. At the same time, it is difficult to expect a foreign damaged party to show an Italian tax code for the simple reason that the cited article presupposes that the document has been issued by the tax office, while a foreigner is unlikely to have an Italian tax code. 7

8 Query Does the notification letter against the U.C.I. have to contain particular formalities? The possibility of initiating judicial action depends on the correct formulation of the notification letter as well as the passage of time known as spatium deliberandi which, following the coming into force of the fifth directive (vehicles) regarding accidents involving foreign counterparts, is three months from the date when the handling bureau receives the notification letter. There is no doubt, however, about the irrelevance of requesting a tax code from foreign parties since they are unlikely to have one (Justice of the Peace, Marigliano, 15 February 2007, Dott. Chianese). After sending the request for compensation, the Italian bureau verifies the insurance coverage and appoints an Italian insurance company or an appropriate service agency to deal with the accident. In the event of judgement, neither of these bodies has passive legitimacy (Court of Lecco, 13 December 2006, no. 876; Justice of the Peace, Milan, 10 October 2007, no ) so they cannot be summoned to appear before the A.G.O. in the event of a judicial controversy, as will be seen in the following sections. 8

9 2 The judicial phase of settling damages 2.1 The mediation procedure (slides) 2.2 Competence of Justices of the Peace and the Courts. 2.3 Combining direct action with that of article 2054 of the civil code 2.4 The introductory phase of the judgement 2.1 The mediation procedure (slides) 2.2 Competence of Justices of the Peace and the Courts Article 7 of the civil code, in the form resulting from the approval of law no. 69/2009, states verbatim: The justice of the peace is responsible for cases relating to movable goods whose value does not exceed five thousand euros, and when the law does not attribute the case to another magistrate. The justice of the peace is also responsible for cases relating to compensation for damages caused by the circulation of vehicles and boats, provided that the value of the controversy does not exceed twenty thousand euros. [...]. The subsequent article 8 sanctions the residual competence of the court: The court is responsible for dealing with all cases that do not fall under the responsibility of another magistrate. With reference to the composition of the court, it should be noted that the court always takes decisions as individual judgements except in the cases shown in article 50-bis of the code of civil procedure which do not include road accidents, where the case is submitted to the court s opinion as a collegial group. By contrast, the Justice of the Peace always consists of an individual magistrate. An outsider who knows little about the Italian judicial system might not understand the substantial difference determined by this division of competence amongst ordinary judicial authorities as individual figures. On this subject, apart from some divergences of opinion about the proper proceedings before such bodies (see later sections), it is important to note that: - the court is made up of stipendiary magistrates (giudici togati), that is, professionals who are permanently employed by the Italian State as judges, selected periodically by public competition convened by the Ministry of Justice amongst graduates in jurisprudence who have also gained an appropriate diploma from the schools of specialisation after a course lasting two years. - the position of Justice of the Peace is held by honorary judges, that is, personnel who are external to the judiciary, appointed by the Minister of Justice following a selection process by qualifications, convened by the President of the Court of Appeal by districts, amongst graduates in jurisprudence who are qualified to practise the legal profession (lawyers) or who have carried out judiciary functions or have taught juridical subjects at universities or held responsible positions in the 9

10 chancelleries, over thirty years of age and under seventy. The Justice of the Peace is appointed for a period of four years, renewable for a further four years. 2.3 Combining direct action and that as per article 2054 of the civil code As previously mentioned, article 126, paragraph 2, letter b) of the code for private insurance companies (identical to article 23 of law no. 990 of 24 December 1969) sanctions the Italian Central Office as per paragraph 2, letter b), paragraph 3, letters b) and c), and paragraph 4 of article 125, for the purpose of settling damages caused by the circulation of motor-driven vehicles and boats in Italy, to take on the domicile of the insured party, for civil responsibility and their insurance company. On this matter, in claris non fit interpretatio, there are no margins of interpretation, therefore the injured party who wishes to carry out direct action will have to sue both the above consortium U.C.I. and the owner of the foreign vehicle, requesting notification of the preliminary indictment only to the head office of the U.C.I.. However, it often happens that the injured party asks the court to order compensation for damages to be paid not only by the national bureau but also by the summoned foreigner with the link of solidarity. In this case, there is a combination (civil cassation, 9 May 2007, no ) of two different actions: a direct one according to article 144 of legislative decree no. 209 of 7 September 2005; another one ex article 2054 of the civil code against the person responsible and/or owner of the foreign vehicle (obviously not subject to the maximum limit of indemnity ex lege see section 2). with the immediate consequence that notification of the preliminary indictment to the latter cannot be made at the head office of the UCI consortium according to code of private insurance companies but has to be requested ex article 142 of the code of civil procedure (court of Milan, 1 July 2010, no. 8719). Relevant jurisprudence Combination of two different actions: direct and ex article 2054 of the civil code. Majority opinion Court of Milan, 24 June 2010, sentence no Request for conviction to pay compensation for damages not only for the national bureau but also for the summoned foreigner with solidarity link. In this case there is a combination (civil cassation, 9 May 2007, no ) of two different actions: a direct one according 10

11 to article 144 of legislative decree no. 209 of 7 September 2005, and another one ex article 2054 of the civil code against the person responsible and/or the owner of the foreign vehicle with the immediate consequence that notification of the preliminary indictment to the latter cannot be made at the head office of the UCI consortium according to the code of private insurance companies but has to be requested ex article 142 of the code of civil procedure; this reasoning, on the one hand, does not prejudice the rights of the injured party who can always resort to direct action without being forced to pay for notification abroad (translating document, finding address, etc), on the other hand, it protects the injured party who might suffer the consequences of a judicial order without even having had the satisfaction of the pending judgement beforehand. Minority opinion Justice of the Peace, Milan, 23 April 2010, sentence no The U.C.I. summons the driver and foreign owner in order to obtain the sentence of payment in its favour. the U.C.I. has acknowledged, in effect, the inexistence of the notification of the preliminary indictment against the summoned foreigner who has taken not only direct action against the U.C.I. but also action ex article 2054 of the civil code against the person responsible. Reading the preliminary indictment leads to the conclusion dissenting from the opinion of the U.C.I. that the other party did not put forward the necessary joinder of parties through direct action against the U.C.I. and the foreign insurance company, therefore the notification to the foreign joinder was properly carried out at the U.C.I. 2.4 The introductory phase of the judgement It has already been pointed out that the Italian Central Office cannot be compared to an insurance company but, on the contrary, should be recognised as a representative of the foreign insurance company during the proceedings a circumstance that has implications also from the procedural point of view. In fact, the injured party, in taking action against the U.C.I. consortium, must observe several particular formalities which, if not respected, can result in the closure of the proceedings with a standard formula. 11

12 Query Does the party claiming to be injured, who intends cite the UCI, have to respect the terms for foreign residents or for residents within the territory of the Italian Republic? Article 126 of legislative decree no. 209/2005 (code of private insurance companies), paragraph 3, states that: In order to undertake direct action for NORMATIVE REFERENCES Article 163 bis, first paragraph of code of civil procedure, Between the notification date of the citation and that of the preliminary hearing there must be a free period of not less than 90 days if the place of notification is in Italy, and 150 days if the place is abroad. compensation against the Italian Central Office, the terms as per article 163-bis, first paragraph, and 318, second paragraph, of the code of civil procedure, have been doubled, resulting in 180 days for cases heard in court, and 90 days for cases heard by a justice of the peace. Relevant jurisprudence Opinion more in favour of the U.C.I. Court of Appeal, Milan, third civil section, in the case of RG no. 3935/2006, ordinance 15 December 2009 The court examined the acts and the documents of the case and found that the term for appearance at the hearing, as per article 6, no. 2, no. 8 letter b), and no. 9 of law no. 990 of 24 December 1969 in relation to article 163 bis of the code of civil procedure, was not observed by the appellant in citing the Italian Central Office, domicile ex lege of the foreign owner and the foreign insurance company, that they did not appear in court, and that according to article 291 of the civil code, there must be a renewal of the appeal notification to the latter to appear at the hearing on 14 December 2010 at hrs respecting the special term cited, with the following motivation: the court orders the appellant to renew the notification of appeal, respecting the special term currently of (90x3=) 270 free days, taking into account public holidays. Opinion leaning more towards the constitution Court of Milan, 11 th section, RG. no /2006, ordinance 6 October 2008 In the light of article 126 of legislative decree no. 209/2005 which assigns a term for appearance of 180 days when taking legal action against the Italian Central 12

13 Office, the magistrate sets the date for a new hearing. Court of Varese, RG no. 5166/2008, ordinance 11 December 2009 The magistrate, having listened to the parties, comments that, according to article 126 of legislative decree no. 209/2005, in order to take direct action for compensation against the Italian Central Office, the terms have been doubled, as per article 163 bis first paragraph and 318 second paragraph of the code of civil procedure, resulting in 180 days for judgement before the court and 90 days before the Justice of the Peace, accepting the justification of such terms in order to provide more time for the U.C.I. to prepare its case, the above norm, also due to its later date with respect to article 3 of law no. 102 of 21 February 2006, is considered to prevail over article 415 paragraph 6 of the code of civil procedure. There is also the fact that the extension of employment legislation to controversies regarding road accidents does not change the subject of the case but remains closely linked to codification no. 209/2006. In terms of relevance, because of the subject matter, that norm prevails, either for the criterion of speciality or for the chronological criterion. The procedural mistake relating to the terms for appearing at the hearing renders the notification null. However, since the case involves the Italian Central Office, article 164 paragraph three of the code of civil procedure applies by analogy, and a new hearing has to be set, respecting the terms for appearance. TAKING LEGAL ACTION AGAINST THE U.C.I. What terms for appearance at the hearing must a party observe when taking legal action against the U.C.I.? Opinion leaning towards the constitution: 180 days for cases before the court 90 days for cases before the Justice of the Peace Opinion more in favour of the U.C.I.: 270 days for cases before the court 135 days for cases before the Justice of the Peace 13

14 3 Significant legal questions and exceptions raised in judgements against the U.C.I. 3.1 Existing contrasts between legal prescriptions, in particular the code of private insurance companies and judicial decisions. 3.2 The settlement of material damages, ongoing contrasts in jurisprudence referring to what is known as technical stoppage, payment of VAT on estimates, establishing commercial value of vehicle before the accident. 3.3 Passive legitimacy of the U.C.I. (Italian Central Office). 3.4 Stolen foreign vehicle that causes an accident. 3.5 The maximum level of catastrophic damages and the claims limit set by U.C.I. 3.6 The joinder of parties according to article 140 of the insurance code. 3.7 The releasing sequester in the event of an over-the-limit accident aimed at avoiding conviction for appropriate and inappropriate mismanagement. 3.8 Summoning a foreigner who is also owner of the vehicle, and the insurance company at the U.C.I. without any vocatio in ius against the U.C.I. but with notification of the preliminary indictment to the U.C.I. consortium. 3.9 The hold-harmless summons by the U.C.I Formal interrogation of the summoned foreigner in default 3.11 The international rogatory 3.12 The probatory value of the CAI form signed by the foreigner Ceding credit following a road accident, material damages and injuries The indivisibility of the settlement procedure for material damages and claims for injury damages. The U.C.I. does not allow separation of claims The burden of specific contestation (article 115 of the code of civil procedure). 3.1 Existing contrasts between legal prescriptions, in particular the code of private insurance companies and judicial decisions. Notwithstanding the extreme clarity of the norms, recent jurisprudence from the court of Milan disregards the informative principle of article 148 of the code for private insurance companies. 1. For accidents involving only damage to material things, the request for compensation, presented according to the ways shown in article 145, must be accompanied by the declaration form as per article 143 containing the tax codes of those entitled to compensation, as well as the place, dates and times when the damaged items are available for visual inspection in order to ascertain the scale of the damage. Within sixty days of receiving this documentation, the insurance company makes a suitable offer to the injured party for the compensation, or specifies the reasons why it is not possible to make such an offer. The term of sixty days is reduced to thirty days when the declaration form has been signed by all the drivers involved in the accident. 14

15 2. The obligation to make a suitable offer to the injured party for damage compensation, or to specify the reasons why it is not possible to make such an offer, also applies to accidents that caused personal injuries or death. The compensation request must be presented by the injured party, or by entitled persons, according to the ways shown in paragraph 1. The request must contain the tax codes of those entitled to compensation and the description of the circumstances under which the accident happened, and must be accompanied, for the purpose of enabling the insurance company to ascertain and evaluate the damage, by personal data relating to age and occupation of the injured party, their income, the entity of the injuries suffered, with a medical certificate showing recovery with or without permanent impairment, as well as a statement as per article 142, paragraph 2, or in cases of death, by the family status certificate of the victim. As an example, here is a first degree case which was held in May 2012 by the tenth civil section of the Milan court. The magistrate decided not to apply the exception of no further proceedings, for violation of the aforementioned norm, put forward by UCI s defence counsel, on the following grounds: The exception of no further proceedings raised by the UCI referring to the problem of presumed failure to respect the spatium deliberandum, has been overcome since the proceedings show that UCI itself produced a series of compensation requests formulated at the end of July 2007 and in early August, and that on 27/11/2007, Avus Italia Srl, the service company delegated by UCI to handle out-of-court negotiations for the accident, gave notice of having received a series of documents, and complaining about not receiving other documents; the complex questions, also at later stages, involved in negotiating the case make it clear that UCI s failure to draw up a compensation proposal was not so much due to incompleteness of the documentation, but rather to the complexity of the case, determined by the many deaths and the number of injured people. On the other hand, the aim of the norms, which UCI refers to, is to encourage outof-court definition of compensation cases, certainly not to encourage instrumental sentences of no further proceedings. (Court of Milan, section 10, sentence no. 5149/12 of 3/5/12, Dott.ssa Ilarietti) Without going into a detailed examination of the case in point, it is useful to note that, examining the documentation referred to by the magistrate, it emerges that: for an accident which happened on 1/7/07, the first requests for damages were dated 24/7/07 and 7/8/07 (referring to damages on a large scale since the accident which happened on 1/7/07 caused five deaths and many injured people). According to the law, the insurance company, once having received the full documentation in cases of personal injuries, has 90 days to formulate the 15

16 compensation offer; therefore, considering the dates on the letters, the proposal for judicial action could have taken place after 24/10/07. But Avus Italia Srl, delegated by UCI to handle out-of-court negotiations, already on 8/8/07 interrupted the term, informing the counterpart that it was impossible to formulate a compensation offer due to the lack of documentation required by the law as per article 148, paragraph 2, of the insurance code, in particular: information about the work activity of the injured party (the notification also required information about damage to assets); income of the injured party as shown on appropriate fiscal documentation; appropriate medical documentation showing the entity of the injuries (the notification also required information about biological damage to the injured party and heirs); medical certificate showing recovery with or without permanent lesions. All the elements required by the law and by the UCI, via the delegated agency, to be able to formulate an offer were never received. These elements were not present in the various notification letters (for example, certificate of recovery) and could never have been included, for the simple reason that some of the injured parties were still temporarily incapacitated and on sick leave when the preliminary notification of judgement was made to the UCI. Therefore, the injured parties, through their conduct have prevented a possible out-of-court definition of the controversy, and the judgement took place in open violation of the disposition as per article 148 of the code for private insurance companies, paragraph 2, since the UCI never received a certificate of recovery from the injured parties, and documentation regarding incomes. In the magistrate s opinion, [...] the aim of the norms, which UCI refers to, is to encourage out-of-court definition of compensation cases, certainly not to encourage instrumental sentences of no further proceedings. According to the court of Milan, article 148 of the code for private insurance companies would lead to an unsanctioned obligation. 16

17 OPINION F. Pintucci, Sinistri stradali con veicolo straniero (Road accidents involving foreign vehicles), published by Giuffrè, 2011, Officina del diritto - Too often the equivocal nature or rather the incompleteness of the norms regarding the essential nature or otherwise of specific requisites already indicated by the law as necessary for the formulation of a compensation request, enables the magistracy to exchange places with the law-maker sanctioning some legal principles almost as if the Italian juridical system were not founded on codified norms but rather on the principle of stare decisis which is the basis of common law. 3.2 The settlement of material damages, ongoing contrasts in jurisprudence referring to technical stoppage, payment of VAT on estimates, establishing commercial value of vehicle before the accident. Damages due to technical stoppage Regarding material damages, there are two contrasting opinions in jurisprudence about compensation for what is known as technical stoppage and its fair settlement. According to the first opinion, this item of damages can be fairly settled by the magistrate: - It is also fair to pay the company L.P.I. SpA a further amount of twenty euros (in today s currency) per day of technical stoppage, considering that it was not possible to use the vehicle for which the owners had paid the relative registration tax and compulsory insurance [...] (Justice of the Peace, Milan, sentence no of 18/01/2012); - Damages due to technical stoppage suffered by the owner of the vehicle can be fairly settled, independently of specific proof and in the absence of contrary indications. What matters is that the injured party has been denied the use of the vehicle for a certain period of time, without considering the effective use (Justice of the Peace, Milan, sentence no of 9/3/11); Then there is a second and contrary opinion which denies compensation for damages due to technical stoppage on the basis of the following assumptions: 17

18 - Nothing can be settled regarding technical stoppage which cannot be considered in re ipsa since explicit proof is required in this sense (Civil Cassation section III, 6/2/02 no. 1627; sense (Civil Cassation II, 09/8/2011 no ) not provided in the case in point. (Justice of the Peace, Milan, civil section ten, sentence no. 76/2012 of 23/01/12, Dr Mari); - the court of legitimacy has also backed this opinion: considering that, contrary to the currently held view, damages due to technical stoppage cannot exist in re ipsa, due to the fact that a vehicle was not used by the owner for a certain period of time. Damage due to technical stoppage also has to be proved, like every other type of damage. The proof must concern not only information on when the vehicle was not used in relation to the dates when it was unavailable to the owner, but also information regarding the owner s effective need to use the vehicle, so much so that the impossibility of using it caused damage, because for example the owner was unable to carry out a particular work activity or because alternative transport means had to be used (civil cassation, 19 November 1999 no ). Such circumstances do not appear in the appeal and cannot even be deduced, except for the work activity of the appellant. (Civil cassation, 7 August 2011, no ). Payment of VAT on estimates There are also contrasts in jurisprudence regarding refunds of Value Added Tax (VAT) when presenting in court a simple estimate of expenses. - Since compensation for damages extends to accessory and consequential charges, if damages are settled on the basis of the expenses required to repair a vehicle, the amount also includes VAT, even though the repairs have not yet taken place and if the injured party, by occupation, is entitled to refund or detraction of the VAT paid since the repair firm must apply it by law (presidential decree no. 633, article 18 of 26 October 1972) on the invoice to the client (Civil cassation, 14 October 1997, no ). (Court of Cassation, section III, sentence no. 1688/2010); A different opinion, on the contrary, states that VAT is not refundable, in the absence of rigorous proof of effective payment: - Note that the amount excludes VAT which is not due on works not carried out (the document is only an estimate not an invoice) (Justice of the Peace, Milan, sentence no of ). - VAT is not refunded because it has not been paid by the party, since the vehicle has not been repaired, nor have damages for technical stoppage been paid for the same reason (Justice of the Peace, Milan, sentence no of ). - Finally, VAT must be recognised as an integral part of the compensation for damages due to road accidents, however, only in the case of effective payment, 18

19 documented by presenting the original invoice and not by a simple estimate of expenses (Justice of the Peace, Milan, sentence no of 22/6/12) Settling the pre-accident value of the vehicle in cases where repairs would be uneconomical An opinion in jurisprudence, reflecting legitimacy and merit, on the subject of uneconomical repairs, admits the possibility for the magistrate in question of sentencing compensation for damages by equivalence ex article 2058, paragraph 2, of the civil code, in cases where a specific request could lead to repair costs that exceed the value of the vehicle before the accident. Compensation for damages by equivalence involves restoring the commercial value before the accident subtracting the residual value of the damaged vehicle, while reintegration in specific form consists of a sum of money corresponding to the expenses required to repair the vehicle, independently of the cost of uneconomical repairs. On this subject, there are opinions that forcibly deny compensation for damages when the cost of the repairs exceeds the value of the vehicle before the accident. For example, see the decision by the Justice of the Peace, Milan, sentence no. 4138/2004, where the magistrate expressly declared that: the principle that finds application is shared by jurisprudence, according to which the debtor cannot be burdened by a compensation which is too heavy with respect to that affirmed by the principle sanctioned by article 1227, paragraph II of the civil code, which justifies the exclusion from the compensation package of amounts paid out in excess of the value before the accident. There are also contrary opinions through which the magistrates accept requests for integral compensation of damages also in cases of uneconomical repairs, though with evaluations to be carried out case by case. This magistrate considers [...] that recognition in a specific form represents, without a doubt, a more valid and substantial settlement figure, taking into account the usefulness of the vehicle: in fact, the figure of 3, euros certainly does not represent a sufficient amount to buy a vehicle with the same characteristics as the one involved in the accident, before it was damaged [...]. In conclusion M.A. must be sentenced to pay the residual amount of 1, euros to the party C.A.G.S... (Justice of the Peace, Milan, sentence no of 22/6/12; Court of Padua, sentence no of 15 February 2010). 3.2 The passive legitimacy of the U.C.I. The national bureau, in the case of an accident involving a motor vehicle registered in a foreign country, adhering to the green card system, takes on the function of: 19

20 domicile of the insured foreigner, civil responsibility and their insurance company; passive legitimacy, in the event of a road accident in Italy involving motor vehicles registered abroad, the injured parties can take direct action against the U.C.I. according to the provisions of articles 145, first paragraph, 146 and 147. Relevant jurisprudence Justice of the Peace, Milan, ordinance, 29 March 2011 The Supreme Court has affirmed on several occasions that, on the subject of compulsory insurance for civil responsibility deriving from the circulation of motor vehicles and boats, the only party responsible for damage who is called to the proceedings promoted by the injured party against the insurer with direct action, is the owner of the motor vehicle or boat; it follows that the participation of the driver in the proceedings can only be for purposes of a probatory nature, outside the compulsory joinder of parties. Court of Bergamo, 2 October 2002, sentence no While it is true that article 6 of law no. 990/69 states that, in the event of direct action against the Italian Central Office, what matters is the principle established by article 23 on the necessary citation also of the party responsible for the accident; however, this requirement has been interpreted as referring to the owner or insured party and not simply to the driver, who would not represent the compulsory joinder of parties (Civil cassation, 6 November 1996, sentence no. 9647; Civil cassation, 4 December 1996, sentence no ) 20

21 Query Does the service agency or the company appointed by the bureau to deal with the accident have, or not have, passive legitimacy in a case brought by the party who is presumed to be injured? The company delegated to deal with accidents out-of-court does not have passive legitimacy in relation to the direct request for compensation (Justice of the Peace, Milan, 10 July 2007, no ; Justice of the Peace, Milan, 31 October 2003, no ; Court of Naples, 15 March 1982). As further confirmation of this reasoning, note that the court of Lecco (Court of Lecco, 13 December 2006, no. 876) accepted the concept of inexistent passive legitimacy raised by one of the service agencies, given that the latter (Avus Italia Srl) was involved in a case after being appointed to deal with an accident on behalf of an insurance company. There is no lack of isolated statements rejecting the concept of inexistent passive legitimacy (Justice of the Peace, Lodi, 21 July 2007, no. 1005) on the assumption that the service agency Avus Italia Srl was delegated by the U.C.I. to deal with the accident up to the point of offering a sum of money in euros in order to conclude the controversy according to article 2054 of the civil code. According to this view, the simple fact of being delegated to deal with out-of-court negotiations of an accident would be sufficient to attribute passive legitimacy to a third party company which does not operate in the insurance field. Such an opinion is clearly groundless since, leaving aside the above arguments, it is contrary to the law. However, the decision was overturned by the court of Lodi following an appeal by Avus Italia Srl, the magistrate stating: The criticism by the defence counsel for Avus is valid. It is the Italian Central Office that represents the foreign insurance company and not the service agency delegated to handle out-of-court dealings regarding compensation. It follows that Avus Italia as the representative of the U.C.I. does not have passive legitimacy (Court of Lodi, magistrate I. Gentile, sentence no. 372/2012). 21

22 Query Can the foreign insurance company bring an action autonomously in spite of the fact that direct action has been taken against the U.C.I.? It is not unusual for the bureau to act in the interest of the foreign insurance company, and the latter brings an action autonomously, that is, giving a direct mandate to a lawyer for representation in court. This situation arose recently before the court of Milan (Court of Milan, section 11, R.G. no /06) causing considerable perplexity from a juridical point of view. Query If the accident involves two foreign vehicles, both responsible, is it necessary for the injured parties to specify the foreign insurance company which the bureau is representing in court? It can happen that an injured party brings an action against two distinct foreign owners who are insured with different companies, both of whom are considered co-responsible for the accident under consideration. The problem arises when the U.C.I. is cited imprecisely, that is, with a single citation which does not specify the representation in court of one insurance company or the other. On this point of jurisprudence, the Milan and Bergamo courts have correctly evaluated the question giving rise to a situation where the U.C.I. receives two distinct notifications, the first as guarantor for the insurance of vehicle A and the second as guarantor for the insurance of vehicle B (Court of Milan, section 12, sentence no. 9661/05; Court of Bergamo, section I, sentence no. 3361/04). Vice versa another recent opinion maintains that, in the case in point, the contradiction is fully settled and the Italian Central Office correctly summoned with passive legitimacy for the deduced responsibility of the two owners of vehicles both of which are registered abroad (Court of Milan, section 12, ordinance, 13 April 2011). 22

23 3.4 Stolen foreign vehicle which causes an accident Query If the foreign vehicle which caused the accident turns out to be stolen, to whom should the Italian injured parties address their requests? Legislative decree no. 198 of 6 November 2007 introduces into Italy what is known as the fifth directive (vehicle) which also placed two new letters (d bis and d ter) in the first paragraph, article 283 of the insurance code (which now become six), relating to cases involving the Fund for guaranteeing road accident victims. And one of the two new situations is that the accident was caused by a foreign vehicle with a registration plate not corresponding, or no longer corresponding, to the same vehicle which leads to identifying the Guarantee Fund as the subject responsible for compensation. 3.5 Maximum level of catastrophic damages and the claims limit set by U.C.I. The elimination of customs barriers and the creation of the EU Schengen area has encouraged the adoption of policies aimed at unifying national norms, so much so that with the approval of Directive 2005/14/CE, Fifth Directive (Vehicle), it is hoped that, by 11 June 2012, the national legislations of all member States will include the following limits for insurance policies: Euro 5,000,000 per accident, without considering the number of victims Euro 1,000,000 per victim. 23

24 Query Do the above limits also apply to the Italian Central Office? Article 125 of the Insurance Code, paragraph 5, states that as per paragraph 3, letter c), the Italian Central Office deals with settling the damages, guaranteeing payment to the entitled parties, within the limits set by the law or, if greater, those set by the insurance policy to which the green card refers. As per paragraph 3, letter b), and as per paragraph 4, the Italian Central Office deals with settling the damages which occurred in Italy, guaranteeing payment to the entitled parties, within the limits set by the law or, if greater, those set by the insurance policy. Errore. Il segnalibro non è definito. In jurisprudence the general principle is that regarding insurance of civil responsibility for damages arising from the circulation of motor vehicles, in the case of direct action undertaken by the injured party according to article 18 of law no. 990 of 24 December 1969, should the insurer reject being held responsible for compensation of damages within the limits of the policy, he is bound to indicate what said limits are, providing proof by showing the actual insurance contract (Civil cassation, 14 December 2004, no ): in other words, it is the insurance company s task to demonstrate the limits of indemnity set by the contract. However, this principle does not apply to the Italian Central Office which, as mentioned above: is not an insurance company, and does not issue its own insurance policies. The Italian Central Office does not have to prove the limits of indemnity (Civil cassation, 3 October 2005, no ) since the injured party, according to article 2697 of the civil code, has the task of proving in court the basis of his claims (Civil cassation, 18 April 2007, no. 9243) regarding the foreign insurance policy. IL LIMITS GUARANTEED BY U.C.I. 24

25 The foreign insurer guarantees a lower limit compared to that set by Italian or European norms The U.C.I. will anyway be obliged to settle the damages within the limits set by Italian legislation. The magistrate is entitled to determine the limits guaranteed by the Italian bureau. The foreign insurer guarantees a higher limit compared to that set by Italian or European norms The U.C.I. is obliged to settle the whole amount guaranteed by the foreign insurer even if it is more than the minimum set by Italian legislation. However, it is the injured party s responsibility to demonstrate that the limit guaranteed by the foreign insurer is higher than that set by Italian legislation. 25

26 Query Can the Italian Central Office (or the foreign insurance company) be obliged to pay an amount that is higher than the limit set by the contract, for reasons of poor management? Relevant jurisprudence Responsibility for poor management Court of Cassation, 18 January 2011, no Apart from cases of responsibility of the insured party who fails to provide the insurer with all the information in their possession, essential for understanding the case, the insurer also faces the risk of not meeting the limit and of failure to settle the damages within 60 days of the request by the injured party. In this case, the insurer is bound to hold harmless the insured party, as part of the insurance relationship, for everything that has to be paid to the injured party over and above the delayed payment. Court of Milan, 3 May 2012, no Regarding responsibility over and above the limit, it is sufficient for the insurer to determine the responsibility of the insured party and the amount of the damages, guided by the principles of due diligence and good faith. Regarding the case in question, even though there were many injured people, the insurance company was perfectly able to take decisions since the responsibilities emerged clearly from the road accident report. Therefore the amounts to be paid must be adjusted by applying the interest rates set by law. 3.6 The joinder of parties according to article 140 of the insurance code Article 140 of the code of private insurance companies confirms the principle of par condicio between the injured parties, so that, in the case of a lower limit, the rights of individuals must be proportionately reduced, down to the amounts insured. On the other hand, a significant change has been introduced by paragraph four of the above disposition which states that in legal actions between insurance 26

27 companies and injured parties, the requirement of compulsory joinder of parties exists, applying article 102 of the code of civil procedure. The insurance company can deposit an amount, within the limits, with a waiver effect for all the parties entitled to compensation, as long as the deposit is irrevocable and in favour of all the injured parties with the evident aim of making the compensation available to all the injured parties, safeguarding the principle of proportional division of the amount. Any sentence that contradicts this principle or is incomplete must be considered inutiliter data (useless information). 3.7 The releasing sequester in the event of an over-the-limit accident aimed at avoiding conviction for appropriate and inappropriate mismanagement. The releasing sequester, according to article 687 of the code of civil procedure can be ordered by the magistrate only at the debtor s request and initiative (in this case, U.C.I.) where the debtor contests the amount of the debt or is in doubt about the identity of the creditor or wants to safeguard themselves while waiting for the magistrate s decision, so as not to suffer the effects of the fine; the result is that, once the releasing sequester has been ordered for the amount that is presumed to be owed, and should the proceedings lead to the conviction of the debtor, he cannot be called upon to pay the interest charges and the revaluation of the amount owed. (Civil cassation, section three, 14 July 2003, no ). Once the appeal has been made, notifying all the parties that might request compensation for damages as a result of the road accident, the court magistrate, if all the conditions exist, orders the releasing sequester with the deposit of the amount in a bankbook under the name of U.C.I. appointing the legal representative as custodian. In the subsequent action take by the injured parties, the court will settle the amount of the limit dividing it proportionally amongst all the entitled parties, without interest charges and monetary revaluation. Summarising: regarding the cautionary measure of sequester ex article 687 of the code of civil procedure, the requirements for adopting the measure (Civil Cassation 198/2003; 5410/1997; 8577/1996; Court of Milan 20/7/1995) are as follows: 1) the effective offer, though it is sufficient to make it available without particular formalities as per articles 1206 and subsequent paragraphs of the civil code, amongst the many, Court of Bologna 3/4/1996, Foro Italiano 1996, 2904, by the debtor, to the creditor, mainly to avoid the risk and the consequences of failure to pay the amount (in his opinion owed) to extinguish the debt (Civil Cassation 198/2003; Civil Cassation 5410/1997); and for the case in point, the U.C.I. had begun to make payments before they were suspended by court order; 27

28 2) the existence of a controversy (not necessarily a pending sentence) between debtor and creditor (Court of Milan 20/7/1995, G.I. 1996, 523), and the appeal sentence is pending; 3) an initiative taken by the debtor (U.C.I.) (Civil Cassation 8577/1996) in order to protect himself from the risks linked to the responsibility for late payment (also where the debtor has not made a real offer, according to articles 1206 and subsequent paragraphs of the civil code, as per article 1220 of the civil code) in other words, being forced to request the repetition of the amount paid to the creditor; 4) according to article 669-quater of the code of civil procedure, the competent magistrate to handle the request for cautionary measures during the proceedings is the one before whom the case is pending, excluding the pending cases before the Justice of the Peace, before a foreign magistrate (in which case, the third paragraph of article 669-ter of the code of civil procedure, applies) or before the Court of Cassation (in which case nothing is required). 5) Jurisprudence recognises the possibility of granting the releasing sequester when the obligation to provide the service derives from an executive sentence which is not yet a final judgement. (Court of Milan, , in Foro Italiano 1970, 189) 3.8 Summoning a foreigner (who is also owner of the vehicle) and the insurance company at the U.C.I. without any vocatio in ius against the U.C.I. but with preliminary notification to the U.C.I. consortium. Relevant jurisprudence Court of Como, 22 January 2009, sentence no. 82 Since the party did not put forward any request for the conviction of the national bureau in the conclusions, nor was such a request minimally evident in the body of the introduction to the sentence subsequently notified to the U.C.I. it is not possible to formulate any case against the U.C.I. since the introduction to the present proceedings does not contain a request for the conviction of the foreign insurance company The hold-harmless summons by the Italian Central Office On this point there is an interesting ordinance of 13 November 2004 by the court of Mantua, which stated, correctly, that in the opinion of this magistrate, the hold-harmless summons of the U.C.I. does not seem merely formal since, according to article 6 of law no. 990/69 (pre-existing), the foreign insured party and the insurer are domiciled by law at the U.C.I. for the purposes of controversies regarding the insurance relationship or in cases of direct action, 28

29 while in the case under consideration a hold-harmless request has been made which would have involved the direct citation of the third foreign injured party according to the general rules as per article 142 of the code of civil procedure. On the other hand, the code of private insurance companies, following the sense of the abrogated law no. 990 of 24 December 1969, grants only to the injured party the possibility of taking direct action against the insurance company of the responsible party; and, quite frankly, the insurance company that makes a holdharmless request cannot be considered as an injured party. The conclusion we can draw is that when, for example, the defendant blames the owner or foreign driver, they can indeed be served with a hold-harmless summons delivered to their foreign residence, as per article 142 of the code of civil procedure, with the caveat that if they wish to make a hold-harmless case against the U.C.I., the latter may well object to the lack of passive legitimacy and anyway the impossibility of taking further proceedings against it, in terms of direct action. EXERCISING DIRECT ACTION Comes into the category of injured party: Does not come into the category of injured party: The person who suffered lesions the insurer who makes a hold-harmless The person who suffered material damage request against another party involved in the The employer of the injured person accident The family members of the injured person The owner of the goods which have been lost because of the accident The insurer who reimbursed the damages against a comprehensive policy, and who takes on the rights of the insured party The bodywork repairer with credit against the insurance company following repairs to the vehicle The heirs of a person who died in a road accident 29

30 3.10 Formal interrogatory of the summoned foreigner in default Article 228 of the code of civil procedure, states that the judicial confession can be obtained by means of a formal interrogatory. According to article 231 of the code of civil procedure, the party must respond to the interrogatory personally and orally unless the magistrate authorises the use of notes and memos, and the answers are written out as the minutes of the proceedings, as per article 207 code of civil procedure. Therefore, the conduct of the parties during the interrogatory is of particular importance. They can display three different types of conduct: 1) facing the magistrate and stating facts that are unfavourable to themselves and favourable to the counterparts, in other words confessing; 2) facing the magistrate and stating facts that are favourable to themselves and unfavourable to the counterparts, in other words remaining fixed in the views and opinions that have given rise to the controversy; 3) facing the magistrate and refusing to take part in the interrogatory, or not turning up at all. The court of legitimacy has affirmed several times that the examination of the foreign witness, also relating to contrary proofs or deduced proofs, must be carried out, as per article 204 of the code of civil procedure, through an international rogatory (Civil cassation, 19 November 1993 no ; Civil cassation, section I, 28 November 2001 no ). Unfortunately this principle does not apply to formal interrogatories. Relevant jurisprudence Justice of the Peace, Milan, section ten civil, 7 July 2005, sentence no For their part, the defendants, by their absence, have not provided the rigorous proof of relevant facts which modify or extinguish their obligation arising from the illicit act committed by Bonov, whose failure to appear means that the interrogatory is not formalised. Justice of the Peace, Milan, section nine civil, 8 May 2004, sentence no This reconstruction of the accident, based on the defendant s statements, the road accident report, the statements made by the witness, the damage to the vehicles involved, has not been contested by the defendant who, without any justification, did not appear at the hearing to render it valid, in spite of regular notification. Failure to reply certainly represents a fact linked to the wider subject of the behaviour during the hearing and, even though such conduct is not equivalent to a confession, nevertheless it shows a link to the other elements explaining the reasons for the accident. All these facts are convincing evidence of the exclusive responsibility of the foreign defendant for causing the accident in question The international rogatory 30

31 During a lawsuit, it can happen that certain parts of the proceedings, mainly at the request of the parties involved, have to be carried out in places located abroad, therefore outside the jurisdiction of the Italian system. This is certainly a case when the U.C.I., as part of its defence arguments, has to examine witnesses living abroad. For this purpose, there exists the judicial instrument of the rogatory, that is, a formal request to the foreign judicial authorities to examine witnesses in their country. On this point, article 204 of the code of civil procedure, states that, during a case before an Italian magistrate, when the facts relating to the controversy have to be acquired in a foreign country, the magistrate must use the judicial instrument of the rogatory. The parties involved are responsible for checking the time required for the rogatory and, if necessary, requesting from the delegating magistrate an urgent extension in the event of failure to complete the hearing in time. The delegating magistrate will assess the situation and, if necessary, contact the foreign authorities directly for assistance, also to safeguard the reasonable duration of the lawsuit. It is important to point out that, according to an established judicial practice, the expiry of the time limit without a request for extension means that evidence subsequently acquired will be declared null, hence unusable. Continuing inertia on the part of the authorities involved in a rogatory, and the absence of conventional means, may make it impossible to use this instrument. Relevant jurisprudence Nullity of rogatory for failure to notify Majority opinion Court of Milan, ordinance, 30 September 2004 Since it is agreed between the parties that the defence counsel were not notified by the foreign authorities of the date for taking oral evidence and were not able to take part, arrangements have been made to renew the appointment for taking oral evidence by rogatory before the German magistrate, as per article 204 of the code of civil procedure. Court of Milan, 20 May 2006, no The rogatory must be declared null, and therefore cannot be taken into consideration by the magistrate, for failure to notify the defence counsel of the date of the hearing for taking oral evidence. Minority opinion Justice of the Peace, Milan, 8 May 2002, sentence no Regarding the exception raised by the party of nullity of the witness s evidence through international rogatory for violation of articles 244 and 245 of the code of civil procedure, the magistrate notes that the person has not asked to be allowed to give contrary evidence, and the lawyer has taken note at the hearing of the extension 31

32 for gathering such evidence without objection, the request is therefore rejected since there is no sign in the case of presumed violation of defence rights as claimed by the party. Term for contesting the nullity of a pending preliminary proceeding Unanimous opinion Court of Appeal, Milan, 24 February 2005, sentence no. 516 As a preliminary step, it should be noted that, in relation to the presumed irregularity of the evidence obtained by foreign rogatory, requested by the U.C.I., the parties did not object to anything at the first subsequent hearing (so further claims of nullity cannot be considered) and did not even request renewal of such preliminary means during the conclusions of the first level and this level The probatory value of the C.A.I. form signed by a foreign driver The probatory value of the C.A.I. form (Constatazione Amichevole di Incidente or friendly description of an accident) signed by both drivers involved in a road accident is the subject of a lively jurisprudential discussion still not completely over. A first solution put forward by the court of legitimacy considers the C.A.I. form as a simple statement of fact, freely available for the magistrate s information, along the lines of confessional statements made by a third party (Civil cassation, section III, 2 April 2002, no. 4369). According to another opinion, two legal assumptions are involved: the first, between the parties, of an absolute nature that does not admit of contrary evidence; the second, iuris tantum, against the insurer, which can be overcome by contrary evidence (Justice of the Peace, Monza, 20 May 2002, no. 829; Civil cassation, section III, 27 February 2004, no. 4007). On this point, the Sections of the court have joined together (Civil cassation, section one, 5 May 2006, no ) as a single voice stating that: the C.A.I. form signed by both drivers creates an assumption iuris tantum valid against the insurer who can overcome it by providing contrary evidence, as tangible facts or through another assumption. 32

33 Query What probatory value does the C.A.I. form have (friendly description of the accident) printed in Italian and signed by a foreigner? Jurisprudence is divided on this point; on the one hand, the opinion tends towards the absolute irrelevance of the circumstance, on the other hand, there are some who say that, in such cases, only the hand-drawn sketch of the situation should be taken into consideration. The latter opinion seems to be preferred. Relevant jurisprudence Court of Milan, 8 June 2006, no In cases where one of the two drivers is a foreigner and therefore not fluent in Italian, the detailed hand-drawn sketch forming part of the C.A.I. form constitutes an important element since the act of drawing the sketch does not require any particular linguistic ability. Contra Justice of the Peace, Milan, 31 December 2009, sentence no The fact that one of the two drivers is a foreigner does not affect the validity of the C.A.I. form, even though the person is signing a sheet of paper including a declaration of responsibility not in their own language; nevertheless they understand the contents and are sure that the document reflects what actually happened Ceding credit following a road accident, material damages and injuries First of all at this point, a distinction has to be made between material damages and non-material damages such as injuries. The constant jurisprudence of legitimacy, including ordinance issued by Section III of the Supreme Court on 13/5/2009, admits the cession of credit concerning damage to assets caused by road accidents, while to date there are no explicit statements from the Supreme Court regarding the cession or otherwise of credit due to injuries. 33

34 The credit for compensation for damage to assets caused by road accidents can be ceded ex article 1260 and subsequent paragraphs of the civil code, and the party ceding the credit is entitled judicially to demand payment from the debtor (Civil cassation, section III, sentence no. 52/2012 of 10/01/12). From the viewpoint of jurisprudence, we can say that the Court of Legitimacy: on the one hand, it recognises that credits for damage to assets can be ceded; but there are no statements, favourable or unfavourable, regarding the possibility of ceding credit for injuries even though, in the decisions legitimising the ceding of credit for damage to assets, there is the explicit concept that such credit is not strictly personal, and therefore we can draw the conclusion that credit for injuries, that is, biological and moral damages, are strictly personal; while for the courts in question there are two diametrically opposed decisions. The magistrate s sentence on 16/11/2010 by the court of Mantua, in judgement RG. no. 2384/2005, affirms that entitlement to compensation (for damages other than those to assets, consisting of biological and moral damages) cannot be considered of a strictly personal nature since that concept is limited to credits in which the aim of the obligation can be fully realised only through fulfilment in favour of a specific subject; it is also necessary to point out that the transferability of such a right can be deduced from the fact that the jurisprudence of legitimacy has established several times that, under certain conditions, both death and biological damages are transmissible (Civil cassation 30/10/09 no , Civil cassation 17/1/08 no. 870, Civil cassation 28/8/07 no , Civil cassation 28/4/06 no. 9959) and also moral damage (Civil cassation 17/12/09 no , Civil cassation 6/8/07 no , Civil cassation 31/5/05 no ). The magistrate s decision no of 3 May 2012, court of Milan, disagreed with this opinion affirming that, as per the norm in article 1260 of the civil code, credits for compensation of damages for injuries cannot be ceded since they are of a strictly personal nature, providing a monetary equivalent for very personal rights that have been impaired. Article 1260 Ceding credits The creditor can transfer the credit with charges or free of charge, even without the consensus of the debtor, providing the credit is not of a strictly personal nature or that the transfer is not forbidden by law. In fact, a more precise definition of personal assets is contained in the dispositions of article 179 of the civil code. Article 179 Personal assets 34

35 The following items are not part of the community of property and are personal assets of the spouse: - assets awarded as compensation for damages, as well as the pension regarding the partial or total loss of the ability to work; On the basis of the above dispositions of the civil code, it is clear that the injured party s credit regarding compensation for biological damage, moral damage, and damage from the loss of the parental relationship must be classified as credits of a strictly personal nature! 3.14 The indivisibility of the settlement procedure for material damages and claims for injury damages. The U.C.I. does not allow separation of claims. The injured party often brings an action, in cases of accidents involving personal lesions, initially only to recover the compensation amounts regarding material damage, reserving the right to request compensation, in a separate case, for the injuries caused by the accident. On this point, it is necessary to consider the situation sanctioned by the constant jurisprudence of the Supreme Court with sentence no /2007 by the unified sections, which states that a creditor of a certain amount of money, owed under a single obligation, is not allowed to split the credit into many judicial requests for settlement, contextual or staggered in time, since such a division of the content of the obligation, operated by the creditor for his exclusive use with unilateral modification aggravating the debtor s position, contrasts not only with the principle of correctness and good faith, which must distinguish the relationship between the parties during the execution of the contract and during the judicial action to obtain settlement, but also with the constitutional principle of a fair trial. In other words, parcelling the judicial request for the purpose of satisfying the credit claims is an abuse of judicial instruments that the Italian system offers the parties, within the limits of protecting the main interests. It follows that the request put forward a second time must be considered non-actionable (Civil cassation, section III, 22 December 2011, sentence no ) The burden of specific contestation (article 115 of the code of civil procedure) The burden of specific contestation by the plaintiffs is sanctioned by article 115, paragraph 1, of the code of civil procedure, which today, following the changes as per article 45 paragraph 14 of law no. 69 of 18 June 2009, states that: except for the cases envisaged by the law, the magistrate must base their decision on the evidence put forward by the parties or by the public prosecutor as well as the facts not specifically contested by the plaintiff. 35

36 The last phrase ( facts not specifically contested ) validates the jurisprudence of the Civil Cassation which, starting from the arrest as per unified sections, sentence no. 761 of 2002, has affirmed the existence, in the Italian civil system, of a burden of contestation for the parties, linked to the facts introduced by the other party, maintaining that the deficit of contestation makes it useless to prove the fact since it is not controversial forcing the magistrate to take it into account without any need to be convinced of its existence. 4 Settlement of damages for injuries (micro-permanent and macropermanent) 4.1 Biological damages 4.2 Damages with reduction of generic working ability 4.3 Damages with reduction of specific working ability 4.4 Coenaesthesia affecting working ability 4.5 Subjective moral damages 4.6 Existential damages 4.7 Damages by death 4.8 Damages for a ruined holiday 4 Settlement of damages for injuries (micro-permanent and macro-permanent) 4.1 Biological damages Damages deriving from physical or psychological injuries, in other words, causing impairment of the person s health; such damages can be settled through empirical assessment, through a system of tables, and have a reparatory and compensatory function for the lesions suffered and the impairment of the injured party s personal assets. In particular, biological damage is defined as follows in paragraph 2 of article 139 of the insurance code (legislative decree no. 209/2005): biological damage means temporary or permanent lesions to the person s psycho-physical integrity which can be ascertained by medical-legal means, and which have a negative effect on the daily activities and the personal relations of the injured party s life, independently of any repercussions on their ability to produce income. With reference to the criteria for settling such damages, it is necessary to draw a distinction between biological damage of slight entity, that is, contained within the nine percentage points, and damage estimated to be of a higher level. Regarding biological damage of slight entity, article 139 of the insurance code states that such damage can be compensated by using the figures shown in a table approved by the Council of Ministers: Article 139 (Biological damages for injuries of slight entity) 36

37 1. Compensation for biological damages for injuries of slight entity, caused by accidents arising from the circulation of motor vehicles and boats, is carried out according to the following criteria and measures: a) permanent biological damage, and the after-effects of injuries equal to or less than nine per cent, are compensated with an amount which increases more than proportionately in relation to each percentage point of invalidity; the amount is calculated by applying to each percentage point of invalidity the relative coefficient according to the correlation shown in paragraph 6. The amount calculated in this way is diminished with the increasing age of the subject by a figure of zero point five per cent (0.5%) for each year of age starting from the eleventh year. The value of the first point is equal to euros; b) temporary biological damage is compensated with an amount of euros for each day of absolute inability; in the event of temporary inability less than a hundred per cent, the compensation corresponds to the percentage of inability for each day. 4. With a presidential decree, after deliberation by the Council of Ministers, put forward by the Minister of health, together with the Minister of employment and social policies, with the Minister of Justice and the Minister of productive activities, the decision is taken to draw up a specific table of lesions to psychological and physical integrity ranging from one to nine points of invalidity. 5. The amounts shown in paragraph 1 are updated annually with a decree from the Minister of productive activities, by percentages corresponding to changes in the national cost-of-living index. The amount defined according to the above criteria approved by the legislator, except for the annual updating, can be personalised by the magistrate with a maximum of 20%: 3. The amount of biological damage compensated according to paragraph 1 can be increased by the magistrate by not more than a fifth, with a fair and motivated statement of the subjective conditions of the injured party. Below is an extract from the table relating to injuries of slight entity, as updated by the Ministerial decree of 15/06/2012 in order to provide a representation of the amounts referring to compensation for biological damage. 37

38 Points of invalidity Age It is important to examine the new elements published in the Official Gazette (no. 71 of Ordinary Supplement no. 53) where, in article 32 of the legislative decree, converted by law no. 27/2010, after paragraph three, the following texts have been added, identified as 3 (ter) and 3 (quarter): 3-ter. After paragraph 2 of article 139 of the code of private insurance companies, as per legislative decree no. 209 of 7 September 2005, the following texts have been added: "In any case, injuries of slight entity, not ascertainable by objective clinical means, cannot give rise to compensation for permanent biological damage"; 3-quater. Personal damages for injuries of slight entity as per article 139 of legislative decree no. 209 of 7 September 2005, are compensated only after medical and legal examinations whose visual or instrumental results prove the existence of the injury. After much discussion, the opinion emerged that the new norms, in the light of their reasoning and the aims of the legislator, should be understood uniformly (therefore without any difference between the contents of paragraph 3-ter and paragraph 3-quater), and that the most plausible interpretation is as follows: the new law insists that damage to health of slight entity must be ascertained and assessed by the medical examiner and the magistrate according to rigorous scientific criteria and without there being any possibility of basing the affirmation of the damage in question only on the victim s statements, in other words on suppositions, conjectures, suggestions, deductions. With reference to more serious damages, the legislator has taken steps to clarify and improve the certainty of entitlement, both for injured parties and for insurance companies, by drawing up another table, according to article 138 of the insurance code: 38

39 Article 138 (Biological damage for more serious injuries) 1. With a decree by the President of the Republic, after deliberation by the Council of Ministers, put forward by the Minister of health, together with the Minister of productive activities, with the Minister of employment and social policies and with the Minister of justice, the decision is taken to draw up a single specific table valid throughout the territory of the Republic: a) of lesions to the psychological and physical integrity ranging from ten to a hundred points; b) of the monetary value to attribute to each point of invalidity including the coefficients of variation corresponding to the age of the injured person. But the worthy attempt by the legislator to identify uniform criteria for compensating biological damage was unfortunately mostly wasted since no steps were taken for more than six years to draw up the table in question. This delay meant that jurisprudence had to identify the criteria for compensating damages due to major injuries criteria which differed from region to region in Italy. This deadlock was challenged by a government initiative in August 2011 when a draft table was submitted to the Council of State which, with deliberation no. 4209/2011, stated that the table was incorrect since it did not comply with legislative decree no. 209/2005 (article 139, paragraph 6), given that the actuarial curve used does not seem to respond to the requirements of article 138, paragraph 2, letter c) of legislative decree no. 209/2005 with which the legislator stated that the single national table should be drawn up according to certain criteria, including the fact that the incidence of damage to the personal relations of the injured party s life should increase more than proportionately with respect to the increased percentage assigned to the after-effects. The Council of State had effectively rejected the tables prepared by the government, and this juridical opinion was matched by a political judgement in a similar vein. In fact, the Chamber of deputies in session no. 540 on 24 October 2011, approved a motion that "the government should withdraw the provision which is unjustified and harmful to the rights of injured parties, and should prepare a new decree as rapidly as possible aimed at determining average values of compensation for biological damage caused by serious injuries, using the tables drawn up by the court of Milan as reference material." 39

40 Tables created by the court of Milan The Observatory for Civil Justice in Milan consists of a group of lawyers, magistrates, managers and chancellery staff, active in Milan since the early 1990s, who have carried out initiatives aimed at recognising and discussing organisational and interpretative questions, in order to rationalise and accelerate the duration of civil proceedings); the group has drawn up a criterion of compensation for damages not concerning assets, based on a table showing the following values: - standard values of compensation for biological damage linked to the seriousness of the injury to the psychological and physical integrity of the injured party, and their age; - settlement of moral damage at a percentage of between 1/4 and 1/2 of the biological damage; - possibility of personalisation, with a maximum of 30% of the amounts awarded as compensation for biological damage, linked to particular subjective conditions of the injured party. This criterion was modified in 2009 following the change of direction in the jurisprudence of legitimacy which, by means of the four contextual sentences (nos , 26973, and of 11 November 2008) approved the unitary nature of non-asset damages which can longer be divided into subcategories. 40

41 41

42 (Translation of column headings from table on previous page) Invalidity Point of biological damage in 2008, updated to 2011 Increase Point of non-asset damage in 2011 Compensation: age bands Coefficient of multiplication Personalised increase Invalidity 42

43 The Observatory therefore drew up new tables which meet the requirements of the Supreme Court, and envisage joint settlement of the following types of damages previously recognised as autonomous: - standard biological damage; - personalisation of biological damage, for particular subjective conditions; - moral damage. This has led to the identification of: - average monetary values, corresponding to the incidence of the injury in standard terms since they recur frequently (the anatomical and functional aspects, the relational aspects, the subjective suffering); - a percentage increase of these average values to be used, in order to enable adequate overall personalisation of the compensation, where the case presents peculiarities proven by attached documents (also circumstantial) for the injured party, regarding not only anatomical, functional and relational aspects, but also the subjective suffering. Therefore, the new average value for compensating non-asset damage has been calculated starting from the point of biological damage in the previous tables increased by a percentage figure relating to subjective suffering (ex moral damages, before the 2008 sentence). These tables also include a band of compensation values for damages from the loss of family relations resulting from the death of a close relative, making it possible to consider the specific aspects of a case (survival of other relatives, cohabiting relationship with such relatives, closeness of affective relations with them and with the victim). Translation of above table Updated to 2011 Non-asset damage for the death of a close relative From / to In favour of each parent for the death of a son/daughter In favour of the son/daughter for the death of a parent In favour of the wife/husband (not separated) or the surviving common-law spouse In favour of the brother/sister for the death of a brother/sister In favour of the grandfather for the death of a grandchild 43

44 The Supreme Court effectively summarises the situation that has come about due to the legislative vacuum and the creativity of the magistrates: Some judiciary offices use a criterion wholly based on fairness, others compensate damages with a point system, mainly based on the average of previous decisions on the subject; some settle non-asset damages as a whole, others distinguish between various types; some adopt a maximum and a minimum for the personalisation of the compensation, others do not. Also regarding the point values in the tables, there are some marked divergences between courts which in fact give rise to a jurisprudence by areas of the country, hardly compatible with the idea of equality: for example, it can happen that a young person, with serious injuries and 80% invalidity, receives compensation that ranges from 430,000 to 700,000 euros, according to the different tables used and independently of the personalisation; for the death of a child the range can vary from 30,000 to 300,000 euros; some courts give more weight to the death of a child compared to the death of a spouse, while other courts do the contrary. This is a situation which affects the basic rights of a person and weakens the elementary principle of equality, undermining trust in the administration of justice, threatening the certainty of entitlement, often leaving to chance the entity of compensation to be expected, hindering conciliation and negotiated out-ofcourt settlements, at the same time fanning controversies and frequently leading to flimsy self-serving demands (also as a result of deliberate decisions in the form of forum shopping ) or instrumental resistance. Since equity also means equal treatment, compensation for non-asset damage due to lesions of psychological and physical integrity presupposes the adoption by all magistrates of uniform assessment parameters which, in the absence of regulatory provisions (like article 139 of the code of private insurance companies, for injuries of slight entity caused by the circulation of motor vehicles and boats), can be found in the tables drawn up by the court of Milan, to be used according to the circumstances of the actual case (Civil cassation, sentence no /11). On the subject of compensation for non-asset damages, alongside biological damage it is also necessary to compensate further disadvantages appropriately. This is what emerges from sentence no of 16 November 2011, third civil section, Court of Cassation. 4.2 Damage with reduction of generic working ability Damages resulting from reduction of generic working ability, in other words, the reduction of the injured party s potential to carry out any type of working activity is compensated within the framework of biological damage. On this point, it is important to point out that, in the event of illicit lesions to a person s psychological and physical integrity, the reduction of generic working 44

45 ability is legitimately compensated as biological damage which includes all the negative effects of the lesion on a person s normal good health with the result that the damage in question cannot form part of independent compensation as damage to assets, which would be independently settled should such a reduction of generic working ability be associated with a reduction of specific working ability, which in turn gives rise to a reduction in earning ability (see Civil cassation, section III, 27 January 2011, no. 1879; Civil cassation, section III, 1 December 2009, no ). 4.3 Compensation for damage with reduction of specific working ability The reduction of specific working ability consists of the actual or potential diminution of the injured person s incomes due to the injuries suffered. The code for insurance companies gives the following prescriptions regarding compensation for this type of damage: Article 137 Damage to assets 1. In the case of damage to a person, when the settlement of compensation also includes the effect of temporary inability or permanent invalidity on an income from regular employment, such income is determined, for employees, on the basis of work income, increased by tax-exempt incomes and gross of detractions and welfare contributions required by law, whichever is the higher over the last three years; and for freelance workers, on the basis of net income whichever is the higher over the last three years, amongst those declared by the injured party regarding income tax paid by physical subjects, or by appropriate certification issued by an employer as required by law. 2. In any case, contrary proof is admitted, but when the result shows that the income is higher by more than a fifth compared to that resulting from the actions shown in paragraph 1, the magistrate reports the matter to the appropriate tax office [...] In the event of inapplicability of the general criterion as per paragraph 1 of the above article, for example the lack of any income, a residual criterion is envisaged: 3. In all other cases, the income that has to be considered for the purposes of compensation cannot be less than three times the annual amount of the social pension. 45

46 Third civil section of the Court of Cassation with sentence no of 11 November 2011: housewives are also entitled to compensation for damage to assets. Housework too has an economic value, so a housewife who is injured in a road accident must be compensated not only for biological damage but also for asset damage providing she can show tangible evidence of her reduced working ability. In the absence of such proof, compensation for asset damage cannot be settled. This was decided by the third civil section of the Court of Cassation with sentence no of 11 November

47 Query For an unemployed student, can asset damage due to a reduction in specific working ability be compensated? Third civil section of the Court of Cassation, sentence no of 30 November 2011: an unemployed student is also entitled to compensation for damage caused by reduced working ability. An unemployed student is also entitled to compensation for damage caused by reduced working ability. This was decided by the third civil section of the Court of Cassation, with sentence no of 30 November The case involved a woman injured in a road accident while still a minor. At the time of the first level sentence, no less than nine years after the accident, when court consultancy was arranged, the woman was still at university and had no income from work activity. While the first level magistrates granted compensation for damage caused by reduced working ability, the Court of Appeal rejected this decision, reasoning that since the woman had no work activity, she could not be entitled to compensation for such an activity unless it actually existed. Given that proof of damage rests on the person requesting compensation, and that it can also be presumptive, providing the reduction in earning ability is proved, the Supreme Court stated that, when it is necessary to calculate the unfulfilled earnings of a minor with permanent injuries, compensation for damage should be calculated on the forecast of future work activity, based on educational qualifications already achieved or being achieved. Current legislation distinguishes between generic working ability, understood as the potential attitude to work on the part of a person who does not have, nor is about to have, a working income, and specific working ability, that is, the impossibility for the injured party to carry out their work activity. The generic type is compensated as biological damage (Civil cassation, section one, 11 November 2008, no ; Civil cassation, section III, 25 November 2010, no Conversely, the loss of specific working ability, according to the Court of Cassation s opinion, requires independent compensation with respect to biological damage (Civil cassation, 18 April 2003, no. 6291, in Arch. giur. circ. sin. str. 2003, 948). 47

48 Injuries causing a reduction in specific working ability, viewed as impaired assets, must be settled within the framework of damages. The CTU found permanent after-effects of 27-28% and considering the important residual function of the articulation of the left knee, asserts that there is a reduction in the specific working ability of 20%. According to the constant jurisprudence, the damage from unfulfilled earnings must be effectively proved by the injured party, according to probatory rules, by providing proof that the reduction in working ability has led to a reduction in earning capacity. In the case in question, the injured party claims to have retired before the official date, and the magistrate, after examining the income tax statements for the previous three years, found 20% lower earnings, therefore similar to the percentage damage, thus settling the relative compensation (Court of Vigevano, sentence no. 85/08). The CTU ascertained a 10% incidence in the reduction of specific working ability for company managers due to injury. Since the reasons for specific impairment were not given, and the party did not show any loss of work income after the accident, the court awarded fair compensation for the loss of working ability amounting to 50, euros in relation to the increased work load as a result of the proven after-effects (Court of Milan, 1472/12, section five, east Migliaccio). 4.4 Coenaesthesia affecting working ability Lesions that cause increased tiredness, in other words, a slower recovery of energy, or the need for the injured party to use more physical energy to carry out a particular task, gives rise to damage by coenaesthesia affecting working ability. Increased wear and tear is one of the factors affecting damage to health (biological damage) which cannot give rise to independent compensation, but must be assessed as only one of the many components of the overall situation which is the evaluation of damage to health. In practice, the corresponding point of non-asset damage is given more weight. 4.5 Subjective moral damages This is the damage that originates in the distress caused by the accident, usually taking the form of an exclusively psychological nature with a clear element of personal blame. Fair compensation has to be quantified taking into account the seriousness of the problem. Regarding this type of damage, juridical opinion is still deeply divided, in spite of the decisions taken by the unified sections of the Supreme Court, with four contextual sentences of identical content (nos , 26973, and

49 of 11 November 2008) approving the unified nature of this category of nonasset damage. The unified sections of the Supreme Court, by means of the four contextual sentences previously mentioned (nos , 26973, and of 11 November 2008) stated that (Civil cassation, section one, 11 November 2008, no ) non-asset damage as per article 2059 of the civil code, identified as damage from injuries to the person without economic relevance, constitutes a single category which cannot be divided into subcategories. However, it should be pointed out that in its practical application, the principles enunciated by the unified sections are systematically adjusted by the decisions of the Courts, the Justices of the Peace and the Supreme Court itself: - Nothing for the moral damage since it is only micro-permanent impairment (Justice of the Peace, Milan, sentence no of 27/7/11) on this occasion, the party suffered [...] permanent after-effects quantifiable in biological damage of 2.5%. Given this situation, it seems fair to quantify the physical damage suffered by the party (at the time, fifty-four years old) on the basis of the tables with the amounts updated to 17/6/11, for an overall figure of 3, euros (of which 1, euros for biological damage, euros for partial temporary inability, and euros for moral damage [...]. (Justice of the Peace, Milan, sentence no of 16/9/2011); That said, for the case in point, taking into account the victim s suffering, involving the physical impairment and the injuries caused by the accident (shown by the effective diminishment of psychological and physical abilities determined by the trauma and by the suffering for which, we repeat, rigorous proof must be provided) the decision is not to award compensation for moral damage deriving from micro-permanent impairment, due to the slight entity of the injuries caused by the damage suffered (1.5%) (Justice of the Peace sentence no of 5/12/2011). We agree with the arguments and the conclusions reached by the CTU judging the method to be correct and without errors of logic or any other type. Therefore, taking into account the age of the injured party who, at the time of the accident, was 67 years old, and applying the assessment criteria set out in the ministerial decree (Ministry of Economic Development) of 24 June 2008, the injured party W.N. will receive compensation for [...] biological damage of 4.5% amounting to 3, euros, and moral damage for 1, euros (according to legal requirements as per article 2059 of the civil code and 185 of the penal code) (Justice of the Peace, sentence no of 5/11/09). 4.6 Existential damage 49

50 This refers to impairment which can be objectively ascertained (and not merely emotive or interior) caused by reference to the earning capacity of the person, which alters their habits and relationships, forcing them to change their lifestyle and the expression and realisation of their personality in the external world in terms of social and work relations, with consequent impairment of the personal values guaranteed by the constitution. (Court of Modena, section I, 11/09/2007, no. 1525) In determining the non-asset damage to be paid to the victim of a road accident, it is not sufficient to apply the statistical tables (such as the tables drawn up by the Court of Milan) but it is necessary to personalise the compensation bearing in mind the particular features of the case and the true entity of the damage. All in all states the Court the subject of compensation for damage should be governed by the constitutional principle of effectiveness of compensatory protection, therefore compensation for biological and moral damage cannot be paltry or merely symbolical. (Civil cassation, section III, 6 June 2008, no ). 4.7 Damages by death This refers to the anguish suffered by the victim caused by physical injuries leading to death after a brief lapse of time, also referred to as damages due to killing or loss of life. In jurisprudence, however, there has been and there still is a marked difference of opinion on the subject of how to compensate injuries causing immediate death or, alternatively, injuries causing death after a brief lapse of time. According to a first opinion, somewhat restrictive, given that death concerns a juridical asset of life, as such different from good health (since loss of life does not constitute the maximum lesion of the right to health), damages by death cannot form part of biological damage (Civil cassation, work section, 27 May 2009, no ). Against this, another opinion stating that damage from immediate death must be included in the field of moral damage and forms part of the compensation to be considered in a unitary and all-inclusive manner, personalising the overall amount and also taking into account the above type of damage, provided there has been a specific and motivated request by the injured parties. Psychological suffering characterised by maximum intensity and a limited time span, must be compensated as moral damage, since it will not degenerate into illness giving rise to biological damage due to the limited interval of time between injuries and death (Civil cassation, Section III, 8 April 2010, no. 8360, and Civil cassation, Section III, 13 January 2010, no. 458). 50

51 To sum up, according to the above opinion, the amount of compensation for moral damages in favour of the victim s relatives must include not only the amount due iure hereditario for the victim s intense suffering before death, but also the moral damages subiti iure proprio by the survivors, due to the loss of the family relationship. On this subject, the Court of Cassation, with sentence no of 8 April 2010, awarded the relatives of an accident victim the right to compensation as a hereditary entitlement of death damages consisting of the victim s suffering caused by physical injuries followed by death after a brief lapse of time. This is also known as damage by killing or loss of life. The above sentence concerned a case where the victim s death was not immediate, but took place after about half an hour. Another opinion, with a view not unlike that of the above case, allows compensation for non-asset damage to the victim s heirs only when death takes place after an appreciable interval of time following the accident, since in such a case there is effective damage to the party s psychological and physical integrity which lasts for the rest of their lives (Civil cassation, Section III, 17 January 2008, no. 870, and Civil cassation, Section III, 8 January 2010, no. 79). The Supreme Court maintains that a period of six days meets this requirement and is therefore appropriate for compensation claims. The important element in this case is the situation of the woman s psychological anguish, aware of her approaching death. The magistrate s task is therefore to assess the amount of non-asset damage to be awarded iure hereditatis to the victim s relatives (Civil cassation. section III, sentence no of 16 March 2012). After sentence no. 6754/11, the third section of the Civil Cassation returned to the question of compensation owed to relatives for a victim s death caused by injuries. Sentence no /11 deals with the case of an accident victim who, after uninterrupted hospitalisation for 21 days, dies of the injuries received. Regarding the settlement of death damages, it should be noted that the calculation of damages for family losses is based on a system of points drawn up by the Court of Rome, updated to 2012, under which the amount to be paid is determined by the attribution of a numerical score to be multiplied by a sum of money representing the ideal value of a single point of non-asset damage. The numerical score is determined in relation to the following parameters: a) Family relationship between the victim and the survivor, on the assumption that the damage will be greater according to how close the family ties are; 51

52 b) Age of the survivor, on the assumption that the damage will be greater according to how much younger the survivor is; c) Age of the victim, on the assumption that the damage will be less according to how much older the victim was at the time of the accident; d) Cohabitation of the victim and the survivor, on the assumption that the damage will be that much greater according to how frequent and constant the cohabitation was; e) Composition of the family nucleus, according to which the fewer relatives who survive, the greater the damage suffered. The calculation system also takes into account other parameters in order to assess the compensation in relation to the true situation. In particular the cohabitation of the victim and the surviving relative may lead to a reduction of up to one third in the overall score; on the other hand, the fact that the victim was the only family member and/or the only cohabitant of the survivor may lead to an increased score. 4.8 Damages for a ruined holiday Jurisprudence has affirmed the right to obtain compensation for damages deriving from: - the impossibility of enjoying a period of holiday; - a holiday ruined by unforeseen events; - or by difficulties and delays. Various interpretations and classifications have been put forward for this type of damage: sometimes it is considered a damage of origin biological, so to speak, defined as emotional distress; at other times, the loss of a holiday is considered as losing the chance to enjoy a period of relaxation and entertainment, an opportunity that might not come up again. While some opinions consider a ruined holiday to be an element of material damage, essentially biological in nature, deriving from a lesion made to an asset (the holiday), not subject to immediate economic assessment, other opinions consider it to be part of the non-asset damage, while recognising that it deserves compensation (App. Bologna, 18 February 2004). For example, in the case of a road accident which took place just before departure for holidays, the Court of Milan recognised that the injuries caused a reduced ability to enjoy the period of rest, awarding fair compensation of 500 euros. The reduced possibility of enjoying the holidays (which could be considered if one were to indulge in superfluous classification as part of the category of biological 52

53 damage due to temporary invalidity) must be compensated, according to the magistrate, by the overall amount of 500 euros in current money (Court of Milan, 16 September 2005, no ). The Cassation in penal session also confirmed the possibility of compensating the moral damage of a ruined holiday. The magistrate s decision is legitimate to award fair compensation for the moral damage caused by a ruined holiday also in the case when the accident happened on the last day of the holiday, since the holiday should be considered ruined not only in the final part but also as a memory (Cassation in penal session, section III, 18 March 2010, no ; CED Cassation in penal session, 2010, rv ). 5 Collaboration by the mandator for better handling of the case compared to the preclusions of civil cases 5.1 Preclusions before court 5.2 Preclusions before Justice of the Peace 5.3 Summarised table 5.1 Preclusions before court In order to understand how important it is for the mandator company to collaborate actively with the mandated service agency, it is useful to examine the current preclusions in the sentences handed down by the court. Civil proceedings envisage peremptory terms for the preparatory phases of the case. Fixing a peremptory term for court activities means that, once the term has expired, there is preclusion from the proceedings according to article 153 of the code of civil procedure, and therefore the denial of the power to exercise such activity. Article 166 Appearance in court of the defendant The defendant must appear before the court via an attorney, or personally as allowed by the law, at least twenty days before the initial hearing on the date set by the summons, or at least ten days previously in the event of abbreviated terms according to paragraph two of article 163-bis, that is, at least twenty days before the hearing fixed according to article 168-bis, paragraph five, registering their file in the chancellery containing the act of appearance in court as per article 167 with the copy of the notified summons, the power of attorney and the documents relating to the case. Article 167 Statement of defence 53

54 In the statement of defence, the defendant must produce all the defence material taking a position on the facts of the case on which the request is based, providing personal details, tax code, the evidence to be presented, and the documents put forward as communication in order to formulate conclusions. Under penalty of forfeiture, the defendant must put forward any conventional requests and the exceptions to the proceedings that cannot be deduced by the court offices. If the subject or the title of the conventional request is omitted or absolutely uncertain, the magistrate will declare it to be null and will fix a peremptory term for the defendant to complete it. The forfeitures already matured remain fixed, as well as the rights acquired before the integration. If the defendant intends to sue a third party, they must declare their intention in the court appearance document and take steps as per article 269. Article 269 Suing a third party [...] The defendant who intends to sue a third party must, under penalty of forfeiture, declare their intention in the court appearance document and at the same time they must ask the magistrate to postpone the first hearing in order to enable the third party to be summoned, as per article 163-bis. [...] Therefore, in the court appearance document registered in good time, the defendant must: - put forward the exceptions to the proceedings that cannot be deduced by the court office; - put forward any conventional requests; - declare the intention to sue a third party. 5.2 Preclusions before Justice of the Peace With reference to sentences by Justices of the Peace, the question of preclusions is governed by article 320 of the code of civil procedure which states: Article 320 (negotiation of the case) During the first hearing, the Justice of the Peace freely interrogates the parties and attempts to achieve conciliation. If conciliation is successful, a written summary of the hearing is made, as per article 185, last paragraph. If conciliation is not successful, the Justice of the Peace invites the parties to state clearly the facts that each puts forward as the basis of the requests, defence 54

55 statements and exceptions, to produce the documents and to request the evidence to be used. When the situation is clear from the activities of the parties in the first hearing, the Justice of the Peace fixes one more hearing in order to provide a further opportunity to produce and request evidence. [...] Reading article 320 of the code of civil procedure, makes it clear that the legislator was trying to simplify and speed up proceedings before the Justice of the Peace, compared to ordinary cases. In fact, there is a single moment of time in the proceedings for the first appearance hearing and the negotiation hearing. Article 320 of the code of civil procedure states that the Justice of the Peace in the first hearing freely interrogates the parties and attempts to make a conciliation. It should be noted that this hearing represents the limit for the preliminary requests. Beyond this point, all further preliminary activities are considered to be late, and should they be admitted, the definitive sentence is nullified for violation of a standard norm. 5.3 Summarised table for better practical collaboration between the mandator and Avus to obtain a positive result While handling cases relating to compensation for road accidents, we often find ourselves dealing with situations where the number of injured people and the entity of the damages sustained mean that the insurance limits set by law are insufficient. This problem creates several important requirements for Avus Italia Srl and the lawyer who is dealing with the case in court, namely: 1) always consign all the documentation relating to how the accident happened including the insurance statement, photographs of the damage to the foreign vehicle, indications of any witnesses, or statements written by witnesses (with details of identity card) regarding how the accident happened, state whether the insured person or the injured party has made damage claims for the accident in question; 2) obtain a copy of the insurance policy as soon as possible so that the insurance limit can be determined. On the whole, juridical practice tends towards the idea that anyone who contests the entity of the insurance limit has to prove the existence of a higher limit; however, since Italy does not have specialised sections, with very few exceptions, dealing with responsibilities deriving from traffic circulation, it is advisable to expect uncertainty amongst the magistrates and to 55

56 clarify immediately this important aspect by producing a copy of the foreign insurance policy; 3) make all the established insurance limits available to those who are entitled to compensation by means of the releasing deposit as per the code of the insurance companies, or the releasing sequester as per the code of civil procedure; 4) Enable Avus Italia Srl to designate a fiduciary lawyer to follow the penal action (if required) against the injured party; 5) Remind the injured party or the insured person that if the documents relating to the damage are not transmitted as quickly as possible, the lawyer dealing with the case will not be able to submit them to the magistrates; 6) Ensure that the mandator does not issue power of attorney to lawyers to represent the mandator s interest when the U.C.I. is already involved. 6 Applicable rights and compensation in favour of foreign citizens 6.1 A first solution: the socio-economic context of the place where the damaged party resides is irrelevant as regards the settlement of damages not involving property. 6.2 The preferable solution: the amount of the damage claim must always be commensurate with the socio-economic conditions of the place where the damaged party normally resides. 6.3 A case in point subject to the fourth directive (vehicles). 6.4 Residual questions not subject to the fourth directive (vehicles). 6.5 EU regulation no. 44/01: questions regarding the applicability of this norm to road accidents. 6.6 Direct action against the mandator for the settlement of accident claims, and the fifth directive. 6.1 A first solution: the socio-economic context of the place where the damaged party resides is irrelevant as regards the settlement of damages not involving property. The expression international private law, first used by judge Joseph Story, a member of the U.S. Supreme Court, indicates the complex legislation governing private relationships characterised by extraneousness, in other words, points of contact with foreign juridical systems (citizenship, place where the relationship exists, place where the assets are located) enabling courts to resolve possible conflicts of law by identifying the juridical system applicable to the case in point. Clearly there is no doubt that accidents involving foreign counterparts have some of the above extraneous elements. Until 2007, the reference source was article 62 of law no. 218 of 31 May 1995, entitled obligations arising from accidents and 56

57 illicit acts, which established a double criterion for identifying the juridical system to be applied: firstly, the criterion for the place of the event was taken to be the country where the harmful consequences of the accident arose (Civil cassation, unified sections, 21 February 2002, no. 2512; Civil cassation, section III, 8 May 2002, no. 6591) secondly and subordinately, the injured party s decision to opt for the application of the law of the country where the accident happened, clearly when this is more favourable (Mosconi, Diritto internazionale privato e processuale, 1997, page 164). REFERENCE NORMS Article 62 of law no. 218 of 31 May 1995 Responsibility for an illicit act is governed by the law of the country where the event took place. However, the injured party can request application of the law of the country where the harmful consequences of the accident arose. If the illicit act involves only citizens residing in the same country, the laws of that country apply. It is logical to adjust the compensation for damages with reference to the socioeconomic parameters of the country of residence also considering the different cost-of-living levels in the various countries. On the other hand, article 62, paragraph two, states that If the illicit act involves only citizens residing in the same country, the law of that country applies ; in other words, if the person causing the damage and the injured party are both citizens residing in the same country, the Italian magistrate, without any discretional power, REFERENCE NORMS Considering 14 Regolamento Roma II The requisite of certain entitlement and the need to reach fair decisions in court cases are essential elements in the administration of justice. The above regulation sets out the appropriate criteria for achieving these objectives. Therefore, this regulation provides a general rule together with specific rules and, in certain cases, a safeguarding clause enabling the magistrate to move away from the rules when it is clear from all the circumstances that the illicit act shows a closer link with another country. This set of rules creates a flexible framework for resolving conflicts of laws. Furthermore, it enables the magistrate to deal with individual cases in an appropriate manner. has to apply the law of that country. The above disposition has a residual application following the adoption in January 2009 of Regulation no. 864/2007, known as 57

58 Regolamento Roma II, aimed at introducing uniform norms for resolving conflicts of laws regarding extra-contractual obligations. The declared intention of the EU legislator is that the courts of all the member States should apply the same law in cases of cross-border controversies regarding civil responsibility in order to foster the mutual recognition of judicial decisions throughout the European Union. So, according to article 4, first paragraph of the Regulation, extra-contractual obligations deriving REFERENCE NORMS from an illicit act are governed by the law of the country in which the accident took place; as far as localisation is concerned, it is irrelevant to consider not only the place where the accident happened ( the act that gave rise to the damage ) but also the place, or places, where the indirect consequences came to light. In other words, the EU legislator had to choose between the theory of conduct and the theory of the event (Davì, La responsabilità extracontrattuale nel nuovo diritto internazionale privato italiano, Turin, 1997). The EU legislator tended towards the second situation (lex loci damni) thus reflecting the function that aquiliana responsibility is required to deal with in modern privatised systems. Rather than blaming the anti-juridical conduct, it offers the means to react and to repair the lesion to protected interests and to re-assign the resources unjustly subtracted from the victim. In this sense, choosing the accident as the crucial moment of the illicit act goes well with the trend towards focusing on the lesions to the person or damage to assets and the need for compensation, rather than on the reprehensible conduct that caused the injury (Kreuzer, Tort liability in general, in the unification of choice of law rules, p. 62). Article 4, second paragraph, of the Regolamento Roma II, going against the general rule, states that if the presumed perpetrator of the act and the injured party both habitually reside in the same State (no mention is made of citizenship, differing from article 62, paragraph 2, law no. 218 of 31 May 1995,) at the time when the accident occurred, the illicit act will be governed by the law of that country (lex domicilii comu nis partium). This is a traditional exception to the criterion of lex loci damni (or lex loci commissi delicti) to be found in many international and domestic privatised systems whose function is to preserve the expectations of the parties by ensuring the application of the rules in force in the social ambience to which they belong. Considering 17 Regolamento Roma II The applicable law should be decided on the basis of the place where the accident took place, irrespective of the country or countries where the indirect consequences might arise. Therefore, in the event of lesions to the person involved or damage to assets, the country where the accident took place should be the country where the personal injuries or the asset damage occurred. 58

59 Finally, article 4, third paragraph, of the Regulation establishes that, if the complex circumstances of the case show that the illicit act is clearly linked more closely with a country that is different from that indicated in paragraphs one or two, then the law of that different country must be applied. The norm, not without precedents in the systems of international private law of member States, constitutes an important instrument of flexibility and shows the legislator s intention to allow individual cases to be treated in an appropriate manner (Briere, Le reglement CE n. 864/07 du 11 juillet 2007 sur la loi applicable aux obligations non contractuelles, in Journ. droit intern., 2008, p. 52 ). Relevant jurisprudence Court of Milan, ordinance, 29 March 2004 Since the illicit act (road accident) and the damage arising from it (driver s death) took place in Hungary, the law of Hungary must be applied, according to article 62 of law no. 218 /95. 59

60 Query Can the Italian Central Office (U.C.I.) be considered a substantial party regarding the application of paragraph two, article 62, law no. 218 of 31 May 1995, or of the Regolamento Roma II? This quaestio iuris was examined by the Court of Appeal in Milan (the only precedent available) which, going against what was decided by the first level court, established that the national bureau cannot be qualified as an involved party according to article 62, paragraph two, law no. 218 of 31 May 1995, since it is merely a court representative of the foreign insurance company; consequently the participation of the Italian Central Office does not prevent the application of the foreign legal system when all the other parties have the same nationality and reside in that country (Court of Appeal, Milan, 23 February 2010, no. 351). Recent pronouncements on juridical legitimacy state that article 62, paragraph two, law no. 218/1995 cannot be applied in cases where the U.C.I. is summoned to appear in court. The reasoning is that the Italian bureau s obligation for compensation is based on a provision of Italian law, so the law of the country where the accident happened should be applied, according to article 61 of the above law ( Dealing with other people s affairs, enriching oneself without cause, payment of debts and other legal obligations not otherwise governed by this law, are subject to the laws of the country where the event giving rise to the obligation took place ). 60

61 Relevant jurisprudence Court of Appeal, Milan, 23 February 2010, no. 351 The Italian Central Office cannot be qualified as an involved party as per article 62, paragraph two, law no. 218 of 31 May 1995, since it merely represents the foreign insurance company in court. Civil cassation, section 3, no of 5 April 2012 With respect to the compensation request put forward by the injured parties, the U.C.I. acts as the guarantor ex-lege, and therefore can claim against the foreign insurance company (Civil cassation 25/9/09 no and Civil cassation 3/6/1996 no both in motivation). Therefore the U.C.I. is not only a domicile ex-lege, but also a legitimate passive party (article letter c of the code for insurance companies), in practical terms, the guarantor ex-lege, with its own obligation, in addition to that of the foreign insurance company, against which it can make claims if necessary. The UCI s obligation to compensate the injured parties is based on the obligatory relationship which is set up, thanks to the convention between national bureaux and the national law (as per articles 125 and 126 of the code for insurance companies). This means that, in fact, there are no grounds for the application of article 62.2 of law no. 218 of Contra Court of Milan, 9 July 2009, no In the case under consideration, it is not possible to apply article 62, paragraph 2, law no. 218 of 31 May 1995, since all the parties involved do not have the same residence and nationality, and the U.C.I. is a juridical subject under Italian law. 61

62 IDENTIFYING THE APPLICABLE LEGAL SYSTEM FOR ACCIDENTS THAT HAPPENED BEFORE 11 JAN 2009 AN ACCIDENT IN ITALY Reference norms: Applicable legal system: INVOLVING CITIZENS Article 62, first Law of the place OF DIFFERENT NATIONALITIES paragraph, law no. 218 of 31 May where the harmful consequences arose. RESIDING IN Law of the place DIFFERENT COUNTRIES where the accident occurred. AN ACCIDENT IN ITALY Reference norms: INVOLVING CITIZENS OF THE SAME COUNTRY AND RESIDING THERE Article 62, second paragraph, law no. 218 of 31 May Applicable legal system: The law of that country applies. The law of that country also applies when U.C.I. is summoned, since it is a court representative which cannot be qualified as an involved party, as per international private law. 62

63 IDENTIFYING THE APPLICABLE LEGAL SYSTEM FOR ACCIDENTS THAT HAPPENED AFTER 11 JAN 2009 AN ACCIDENT IN ITALY INVOLVING CITIZENS OF DIFFERENT NATIONALITIES RESIDING IN DIFFERENT COUNTRIES Reference norms: Article 4, first paragraph, Regolamento Roma II. Applicable legal system: The country where the damage took place, independently of the country where the event happened that gave rise to the damage, and irrespective of the country or countries where the indirect consequences of the accident came to light. If the complex circumstances of the case clearly show that the illicit act has close connections with a country different from that as indicated by paragraphs 1 or 2, the law of that different country applies. AN ACCIDENT IN ITALY INVOLVING PEOPLE WHO ARE RESIDENTS OF THE SAME COUNTRY Reference norms: Article 4, second paragraph, Regolamento Roma II. Applicable legal system: The law of that country applies. If the complex circumstances of the case clearly show that the illicit act has close connections with a country different from that as per paragraphs 1 or 2, the law of that different country applies. 63

64 Query In settling damages for a foreign citizen not resident in Italy, does the magistrate have to adjust the amount, or not, to the socioeconomic context where the injured party normally lives? 6.1 A first solution: the socio-economic context of the place where the damaged party resides is irrelevant as regards the settlement of damages not involving property. A consolidated juridical opinion maintains that the place where the injured party normally lives is irrelevant to the personalisation of the non-asset damages awarded (Court of Cuneo, 10 March 2010, no. 119). Compensation that is not proportional to the cost-of-living in the various countries is also justifiable in light of the mechanism of mutual recognition (and trust) of the national compensation systems, identified and supported by the EU decision in 2003 (the reason why each State belonging to the system accepts the application of the law of the other country, regarding the settlement of damages). (Civil cassation, section III, sentence no. 7932/2012) 6.2 The preferable solution: the amount of the damage claim must always be commensurate with the socio-economic conditions of the place where the damaged party normally resides. Another opinion states that, in order to determine the amount of non-asset damages, the magistrate cannot avoid considering the socio-economic features of the country where the injured party normally lives (Court of Appeal, Bari, ordinance, 31 October 2007; Court of Conegliano, 8 October 2008, no. 334; Court of Turin, 6 May 2003, no. 3734; Court of Turin, 21 April 2004, no ). Since compensation for damages has a reparatory function, it cannot ignore the economic context in which the injured party normally lives, mainly because the sense of fairness deriving from the compensation settlement cannot be different in consideration of the geographical area where the injured party lives (Civil cassation, section III, 14 February 2000, no. 637). 64

65 Relevant jurisprudence Opinion tending against adjustment Civil cassation, Section III, sentence no. 7932/ Compensation that is not proportional to the cost-of-living in the various countries is also justifiable in light of the mechanism of mutual recognition (and trust) of the national compensation systems, identified and supported by the EU decision in 2003 (the reason why each State belonging to the system accepts the application of the law of the other country, regarding the settlement of damages). Opinion tending towards adjustment Court of Turin, 20 July 2010, no The need to award all injured parties the same compensation cannot be satisfied by the mere attribution of the same monetary value independently of the economic context in which the injured party lives, because such a situation would create an unjustifiable enrichment for those who live in countries with depressed economies where average prices of the cost of living index are lower than in Italy and other countries, as is notoriously the case with Albania. Therefore it is important to establish the purchasing power of the currency in which the settlement is made, between the two countries involved. This can be done by using the conversion coefficients shown in the decree issued by the Ministry of Employment on 12 May 2003 for determining equivalent income levels for each State, as well as article 38 of law no. 448/2001 for calculating pension treatments in each foreign country, giving a purchasing power equal to that of their own social pension awarded and spent in Italy. 65

66 Query Regarding the adjustment to the socioeconomic context where the injured party normally lives, is it subject to the arbitrary decision of the magistrate? The magistracy maintains that the adjustment in question must be calculated with reference to the conversion coefficients shown in the decree issued by the Ministry of Employment on 12 May 2003 for determining the level of equivalent incomes, for each State, and to the provisions of article 38, paragraph 1, law no. 448 of 28 December Even though such coefficients are intended to be used for calculating pension treatments in each foreign country, giving a purchasing power equal to that of their own social pension awarded and spent in Italy (Court of Turin, 20 July 2010, no. 4932; Court of Monza, 2 November 2007, no. 3302), they can well be applied, with similar reasoning, to the process of matching the settlement of damages to the socio-economic context where the injured party normally lives. Relevant jurisprudence Court of Turin, 20 July 2010, no It is necessary to establish the purchasing power of the currency in which the settlement is made for the two countries involved, making use of the conversion coefficients set out in the decree issued by the Ministry of Employment on 12 May 2003 for determining the level of equivalent income, for each State, and as per article 38 of law no. 448/2001 for calculating pension treatments in each foreign country, giving a purchasing power equal to that of their own social pension awarded and spent in Italy. Court of Monza, 2 November 2007, no The adjustment, far from being merely an arbitrary decision by the magistrate, must be made using the conversion coefficients set out in the decree issued by the Ministry of Employment on 12 May 2003 for determining the level of equivalent income, for each State, and as per article 38 of law no. 448/2001 for calculating pension treatments in each foreign country, giving a purchasing power equal to that of their own social pension awarded and spent in Italy. 66

67 6.3 A case in point, subject to the fourth directive (vehicles).? ilquesito Query To whom should the request for compensation be addressed when a vehicle registered in Italy is involved in an accident in a foreign country? Following the introduction of the fourth directive (vehicles), if the accident took place in the territory of a country belonging to the Charter system, between two vehicles registered in one of the States forming part of the European Economic Space, the injured party can request compensation for damages from the person responsible for the accident, by addressing the insurance company where the vehicle that caused the accident is insured, or the mandated representative of the insurance company in the country where the injured party lives. The above-mentioned directive introduced the obligation (article 4) for all insurance companies with registered offices in a State of the European Economic Space, who provide guarantees against risks deriving from vehicle circulation, to nominate a mandated representative, with full powers to represent the mandating company in all matters concerning damages in the out-of-court phase, for accident compensation in all States of the European Economic Space apart from the State where their head office is located. On receiving the request, the mandated representative must formulate, within three months (article 4 of the directive), their offer of compensation, or they must inform the injured party in writing of their refusal to do so, giving reasons such as: - failure to ascertain responsibility - contested responsibility - failure to quantify the damage. If the mandated representative does not formulate the offer in good time, or does not give sufficient reasons for refusing to do so, or if the foreign insurance company has not appointed a mandated representative in Italy (remembering that it is always possible to involve the competent judicial authorities as per EU regulation no. 44/01 more about this later), the injured party must send a registered letter with notification of receipt to what is known as the indemnity body in their own country (in Italy this function is carried out the Concessionaria Servizi Assicurativi Pubblici S.p.A. ) who will take on the task of handling the accident claim directly (article 6 of the directive) with the obligation to take a decision within sixty days of receiving the request. 67

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