Civ.2e, January 21, 2021, appeal no. 19-13.347
Following a climatic disaster affecting its crops, an EARL contacted its insurer (held by a "multi-perils on crops" policy), which then set against it a warranty forfeiture clause for late declaration of the claim, arguing that the disaster had been visible months before being declared.
L. 113-2 4° of the Insurance Code provides that the forfeiture of cover for late declaration must necessarily be stipulated, provide for a declaration period which cannot be less than 5 days, and that it cannot be implemented only if the insurer demonstrates that the delay in notifying the claim has caused it harm.
Dismissed at first instance, the EARL raises on appeal that the clause of its contract is contrary to the Insurance Code, in that it provides for a claim reporting period of 4 days, less than the minimum of 5 days provided for by the article L.113-2 4°.
Confirming the decision of first instance, the Court of Appeal of Bourges finds that the delay in the declaration did indeed cause damage to the insurer whose experts could, in fact, have advised the EARL in order to limit the loss and under -means that it matters little that the contractual deadline for declaration is less than the legal deadline since they have both been disregarded.
The judgment of the Bourges Court of Appeal is censured by the Court of Cassation under Articles L. 113-2 4° and L. 111-2 of the Insurance Code , on the grounds that a warranty forfeiture clause disregarding the minimum declaration period of 5 days of article L.113-2-4°, is unenforceable against the insured.
