Biennial prescription of insurance law: the Constitutional Council to the aid of insurers!

Marked by the salvoes of the Court of Cassation against the provisions of the insurance code according to it not severe enough for insurers, the year 2022 ended with the unexpected reinforcement of the Constitutional Council.

Seized by a judgment of October 7, 2021 of the 2nd civil chamber of the Court of Cassation of the question of the constitutionality of the two-year prescription enacted by article L.114-1 of the insurance code , with regard to the principle of equality before the law, the Constitutional Council was asked to say whether the fact of enacting a two-year prescription constituted a breach of equality before the law since this prescription is five years in the other contracts and that the period of two years applies without distinction to the insurer and to the insured, whereas the second is in a situation of weakness compared to the first.

The stakes were high for insurers, many of whose processes are based on the assumption that they can in principle "archive" their files once a period of two years has elapsed since a claim or the arrival at its term of the contract.

Economically, the application of the two-year prescription represents a considerable burden, judging in particular by the volume of cases that end up in court after the insurer has opposed the two-year deadline to its insured.

Siding behind the principle according to which different situations authorize different treatments, the Constitutional Council considered that the originality of the insurance contract in relation to contracts subject to the Consumer Code, sufficiently justified the application of a different system of prescription.

In the relationship between insurer and insured, the Constitutional Council considered that equal treatment was fully respectful of this principle of equality.

As we can see, this way of applying the principle of equality could just as well have led to the opposite solution, particularly with regard to the relationship between insurer and insured, since their situations can hardly be considered as not being different.

Also and beyond the motivation in law, the decision of the sages of rue de Montpensier sounds like a come to the aid of insurers!

Jefferson Larue