EN Settlement of damages in Italy for road accidents ... · AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles ... 1 The claims procedure,

2012, September 28 – Rome, Centro Congressi Pallavicini Rospigliosi

AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles”

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“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.

3.10 Formal interrogation of the summoned foreigner in default.

3.11 The international rogatory.

3.12 The probatory value of the CAI form signed by a foreigner.

3.13 Ceding credit following a road accident, material damages and injuries.

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.

3.15 The burden of specific contestation (article 115 of the code of civil

procedure.



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4 Settlement of damages for injuries (micro-permanent and macro-

permanent)

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



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1 The claims procedure, the Italian bureau, requests for out-of-court

settlements submitted to the UCI


1.2 Requests for out-of-court settlements submitted to the UCI

1.3 The new code for private insurance companies


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.

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.



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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.



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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

Query

Is a vehicle registered in a country that does not recognise the green card system allowed to transit in Italian territory?



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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.

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.

Anti-formalised 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

Relevant jurisprudence




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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.



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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. 11614) 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.

Query

Does the notification letter against the U.C.I. have to contain particular formalities?



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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


2.1 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



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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. 10546) 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).

Combination of two different actions: direct and ex article 2054 of the civil

code.

Majority opinion

Court of Milan, 24 June 2010, sentence no. 8346 – 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. 10546) of two different actions: a direct one according




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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. 10616 - 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.


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.



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Article 126 of legislative decree no. 209/2005 (code of private insurance

companies), paragraph 3, states that: “In order to undertake direct action for

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.

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 11.00 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, 11th section, RG. no. 50208/2006, 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

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.


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?



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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



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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.


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.



3.8 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.

3.10 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.

3.13 Ceding credit following a road accident, material damages and injuries.




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.



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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 out-

of-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



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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.



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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.


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.

100577 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. 4314 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:



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.

17135) 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. 12820).

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. 17135).

• 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. 10023).” (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. 10616 of 23.04.2010).

- “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. 5896 of 11.04.11).

- “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,



19

documented by presenting the original invoice and not by a simple estimate of

expenses” (Justice of the Peace, Milan, sentence no. 109273 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 3,500.00 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 1,846.91 euros

to the party C.A.G.S...” (Justice of the Peace, Milan, sentence no. 109273 of

22/6/12; Court of Padua, sentence no. 9727 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:



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.

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. 2714 – 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. 10833)




21

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. 11614; Justice of the Peace, Milan, 31 October 2003,

no. 14497; 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).

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?



22

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. 50208/06)

causing considerable perplexity from a juridical point of view.

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).

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.?

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?



23

3.4 Stolen foreign vehicle which causes an accident

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.

Query

If the foreign vehicle which caused the accident turns out to be stolen, to whom should the Italian injured parties address their requests?



24

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. 23291): 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. 19305) 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.

Query

Do the above limits also apply to the Italian Central Office?



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.



26

Responsibility for poor management

Court of Cassation, 18 January 2011, no. 1083 – 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. 5149 - 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


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?



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).



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. 10992).

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;



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, 20.10.69, 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.

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.

3.9. 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,




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 hold-

harmless 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:

• The person who suffered lesions

• The person who suffered material damage

• The employer of the injured person

• 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

Does not come into the category of injured party:

• the insurer who makes a hold-harmless

request against another party involved in the

accident



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. 11446; Civil cassation, section

I, 28 November 2001 no. 15096). Unfortunately this principle does not apply to

formal interrogatories.

Justice of the Peace, Milan, section ten civil, 7 July 2005, sentence no. 6388 –

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. 5598 –

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.

3.11 The international rogatory




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.

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. 5901 – 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. 5097 – 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




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.

3.12 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. 10311) 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.



33

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.

Court of Milan, 8 June 2006, no. 17752 – 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. 30907 – 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.

3.13 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 11095 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.

Query

What probatory value does the C.A.I. form have (friendly description of the accident) printed in Italian and signed by a foreigner?




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. 23053, Civil

cassation 17/1/08 no. 870, Civil cassation 28/8/07 no. 18613, Civil cassation

28/4/06 no. 9959) and also moral damage (Civil cassation 17/12/09 no. 26605,

Civil cassation 6/8/07 no. 17177, Civil cassation 31/5/05 no. 11601).

The magistrate’s decision no. 5149 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



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!



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. 23726/2007 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.

28286).


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.”



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 macro-

permanent)

4.1 Biological damages

4.2 Damages with reduction of generic working ability

4.3 Damages with reduction of specific working ability



4.6 Existential damages



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)



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 783.33 euros;

b) temporary biological damage is compensated with an amount of 45.70 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.



38

Points of

invalidity

Age

1 2 3 4 5 6 7 8 9

0-10 783.33 1723.33 2819.99 4073.32 5874.98 7989.97 10418.29 13159.94 16214.93

11 779.41 1714.71 2805.89 4052.95 5845.60 7950.02 10366.20 13094.14 16133.86

12 775.50 1706.09 2791.79 4032.58 5816.23 7910.07 10314.11 13028.34 16052.78

13 771.58 1697.48 2777.69 4012.22 5786.85 7870.12 10262.01 12962.54 15971.71

14 767.66 1688.86 2763.59 3991.85 5757.48 7830.17 10209.92 12896.75 15890.63

15 763.75 1680.24 2749.49 3971.48 5728.10 7790.22 10157.83 12830.95 15809.56

16 759.83 1671.63 2735.39 3951.12 5698.73 7750.27 10105.74 12765.15 15728.48

17 755.91 1663.01 2721.29 3930.75 5669.35 7710.32 10053.65 12699.35 15647.41

18 752.00 1654.39 2707.19 3910.38 5639.98 7670.37 10001.56 12633.55 15566.33

It is important to examine the new elements published in the Official Gazette (no.

71 of 24-3-2012 - 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:



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."



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. 26972, 26973, 26974 and 26975 of 11 November 2008) approved the

unitary nature of non-asset damages which can longer be divided into sub-

categories.



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 31-40

Coefficient of multiplication

Personalised increase

Invalidity



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



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-of-

court 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. 12408/11).

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. 24016 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



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. 25289).

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.



46

• Third civil section of the Court of Cassation with sentence no. 23573

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. 23573 of 11 November 2011.



47

• Third civil section of the Court of Cassation, sentence no. 25571 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. 25571 of 30 November 2011.

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. 26973; Civil cassation, section III, 25 November 2010, no. 23259.

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).

Query

For an unemployed student, can

asset damage due to a reduction

in specific working ability be

compensated?



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 50,000.00 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).


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.


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. 26972, 26973, 26974 and 26975



49

of 11 November 2008) approving the unified nature of this category of non-

asset damage.

The unified sections of the Supreme Court, by means of the four contextual

sentences previously mentioned (nos. 26972, 26973, 26974 and 26975 of 11

November 2008) stated that (Civil cassation, section one, 11 November 2008, no.

26972) “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. 7747 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 3,266.50 euros (of which 1,717.00

euros for biological damage, 830.25 euros for partial temporary inability, and

429.25 euros for moral damage [...].” (Justice of the Peace, Milan, sentence no.

8198 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. 8687 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

3,168.73 euros, and moral damage for 1,584.36 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. 25555 of 5/11/09).

4.6 Existential damage



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.

15029).


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. 12326).

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).



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. 8360 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. 4229 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. 10107/11 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;



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.


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



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. 10090).

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. 19523;

CED Cassation in penal session, 2010, rv 247180).

5 Collaboration by the mandator for better handling of the case compared to

the preclusions of civil cases



5.3 Summarised table


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



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.


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



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



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.




6.3 A case in point 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



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).

It is logical to adjust the compensation for damages with reference to the socio-

economic 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,

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

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.

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.



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

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.

REFERENCE NORMS

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.



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”).

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.




60

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”).

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”?



61

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. 7932 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. 20667 and Civil cassation 3/6/1996 no. 5078 both in

motivation). Therefore the U.C.I. is not only a domicile ex-lege, but also a

legitimate passive party (article 126.4 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 1995.

Contra

Court of Milan, 9 July 2009, no. 8337 – 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.




62

IDENTIFYING THE APPLICABLE LEGAL SYSTEM FOR

ACCIDENTS THAT HAPPENED BEFORE 11 JAN 2009

AN ACCIDENT IN ITALY

INVOLVING CITIZENS

OF DIFFERENT

NATIONALITIES

RESIDING IN

DIFFERENT

COUNTRIES

Reference norms:

• Article 62, first

paragraph, law no. 218

of 31 May 1995.

Applicable legal system:

• Law of the place

where the harmful

consequences arose.

• Law of the place

where the accident

occurred.

AN ACCIDENT IN ITALY

INVOLVING CITIZENS

OF THE SAME

COUNTRY AND

RESIDING THERE

Reference norms:

• Article 62, second

paragraph, law no.

218 of 31 May 1995.


• 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.



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”.


• 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”.


• 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.



64

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)




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.

35723).

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).

Query

In settling damages for a foreign citizen not resident in Italy, does the magistrate have to adjust the amount, or not, to the socio-economic context where the injured party normally lives?



65

Opinion tending against adjustment

Civil cassation, Section III, sentence no. 7932/2012 - 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. 4932 – 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.




66

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 2001. 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.

Court of Turin, 20 July 2010, no. 4932 – 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. 3302 – 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.


Query

Regarding the adjustment to the socio-economic context where the injured party normally lives, is it subject to the arbitrary decision of the magistrate ?



67

6.3 A case in point, subject to the fourth directive (vehicles).

? ilQuesito

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.

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?



68

Translation (from left to right):

Settlement and substitution / Italian indemnity body / substitutes / Foreign

indemnity body / Settlement of damages / Insurance company of person

responsible for accident / Person responsible for accident / The injured party


Since the fourth directive (vehicles) is a European norm, clearly it does not apply

in all the cases where one of the vehicles involved in an accident is registered in a

State not forming part of the European Economic Space.

If the accident was caused by a vehicle not registered in one of the countries of the

European Economic Space but, anyway, took place on the territory of a State

which is a member of the Green Card system, the request for compensation should

be addressed to:

• the insurance company of the person responsible for the accident

• the national Bureau of the State where the event occurred if the vehicle that

caused the accident is registered in another country.



69

ACCIDENTS THAT HAPPEN ABROAD

AN ACCIDENT THAT HAPPENED

ABROAD WITH A VEHICLE THAT

WAS NOT REGISTERED IN A

COUNTRY OF THE EUROPEAN

ECONOMIC SPACE

If the vehicle is registered in the

same country where the accident

happened

• The injured party must

address the request for compensation

to the insurance company of the

person responsible for the accident.

If the vehicle is registered in a different

country with respect to where the

accident happened

• The injured party must address

the request for compensation to the

Bureau of the country where the

accident happened.

On the other hand, if the accident took place in a country which is not a member

of the Green Card system, the person who claims to be injured can address the

request against the responsible party to the insurance company that provided

guarantees at the time of the accident, taking into account the legislation of the

country where the accident happened or, in any case, based on the norms of

international private law.

If the accident took place in one of the countries of the European Economic Space

but with a vehicle which is unidentified, uninsured, or for whom it is impossible

to identify the insurance company within two months of the accident, then the

person involved can address the request for compensation to the Italian Central

Office, which will handle the accident as the national indemnity body, instead of

the “Concessionaria Servizi Assicurativi Pubblici S.p.A.” – which manages the

guarantee fund for victims of road accidents.

6.5 EU regulation no. 44/01: questions regarding the applicability of this

norm to road accidents.

It has already been pointed out that the fourth directive (vehicles) has an explicitly

out-of-court perspective since it does not give the person involved the possibility

of pursuing the case judicially in their own country against the decisions regarding

the settlement (in other words, whether an appeal is justified or not, or whether

the offer of compensation is appropriate). On this subject, the EU Regulation no.

44/01 of 22 December 2000, which came into force on 1 March 2002, identifies

the criteria of connection for choosing the appropriate international forum.

Regarding general criteria, the above EU norm is based on the principles set out

during the Brussels convention (article 2 on general jurisdiction at the

defendant’s place of residence, and article 5 on special jurisdiction at the

defendant’s place of residence), however it introduces a wholly new element when

it states that (combining the dispositions of article 11, second paragraph, and

article 9, first paragraph, letter b) the jurisdiction of the forum of the party’s



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domicile at the request of the injured party against the insurance company,

without placing said party in the category of contracting party for the insurance

policy of the insured person or beneficiary.

But the injured party, according to article 9 of the Regulation, is neither the

insured person nor the beneficiary and, therefore, doubts have been expressed

about whether this disposition can be applied when the judicial action is brought

by the person who has suffered an injury in a road accident.

6.6 Direct action against the mandator for the settlement of accident claims,

and the fifth directive.

Article 151 and subsequent articles of the code for insurance companies bring

together the dispositions as per articles 2 and subsequent articles of legislative

decree no. 190 of 30 June 2003 (entitled “Actuation of directive 2000/26/CE

regarding insurance for civil responsibility arising from the circulation of motor

vehicles, which also modifies directives 73/239/CEE and 88/357/CEE).

With this legislative decree, the legislator implemented what is known as the

Fourth Directive (vehicle insurance), on the settlement of damages caused by road

accidents taking place in a member State of the European Union, different from

that where the injured party normally lives.

The system introduced by directive no. 2000/26, actuated by legislative decree no.

190/03 and now contained in, obligates all “stable” insurance companies (that is,

operating as a stable organisation in an EU country) to appoint in each of the other

EU countries, a mandated representative for the settlement of damages, to whom

injured parties can address their claims.

The discipline regarding “intra-community road accidents” (as per article 152 and

subsequent articles of the code for insurance companies) assumes the joint

existence of all the following elements:

(a) the victim resides in an EU member country;

(b) the damage was caused by a vehicle that:

(b’) is insured by a stable company in an EU country which is different

from where the victim normally lives, in other words, a company with head office

in a third country which is also a member of the green card system;

(b’’) is normally kept in an EU country which is different from where the

victim normally lives.

The last paragraph of article 151 of the code for insurance companies enables the

victim to bring an action for compensation directly against the insurance company

of the person responsible for the accident.

The mandated representative for settling the damages is a body representing the

insurance company, which is required by law to:

(a) receive the request for compensation;

(b) prepare the case and put forward an offer of compensation;



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(c) pay the indemnity if it is accepted by the victim.

To carry out these activities, the mandated body must have the power to

represent the insurance company, so that all actions taken are imputable to the

insurance company itself. Therefore, the relationship is a mandate with

representation.

The law is somewhat ambiguous (or rather, reticent) about the possibility of the

victim being able to bring an action directly against the mandated body, in the

name of and on behalf of the insurance company.

This possibility would seem to be excluded by article 153 of the code for

insurance companies, which states that if the mandated body does not make an

offer within three months of receiving the request for indemnity, “the injured

party can address the Italian indemnity organisation as per article 298”.

Some opinions on this subject tend to agree with the exception of lack of passive

legitimacy put forward by the mandated organisation.

This solution was adopted by the magistrate Dott. Caniato who, in an action

brought by an injured German person resident in Italy following an accident that

happened in Germany, against the driver who caused the accident and Avus Italia

Srl, the mandated organisation in Italy of the foreign insurance company, made the

following statement:

“Whereas Mrs Martina Enrica Elly Gotze has brought an action before this court

against the company Avus Italia Srl and Mr Jurgen Eisenhut, requesting

compensation of damages relating to assets and non-assets, suffered by herself

and her three children (minors) as a result of a road accident in Germany on

14/04/2009, as well as asset damage of lost earnings suffered by her husband Mr

Vinci quantified in Euro 4,000.00 (as assignment of credit between spouses).

The Avus company appeared before the court claiming lack of passive legitimacy

since it is a service company acting merely as a mandated organisation only to

deal with controversies ex article 152 of the code for insurance companies.

Avus produced its chamber of commerce certificate in court [...] showing that it is

a service company and not an insurance company “tacitly excluding the activities

for which the law requires prior authorisation, permits or membership of

professional associations. [...]

However, the court feels there are good reasons to summon the insurance

company of the vehicle driven by the defendant Mr Eisenhut Juergen, in light of

the considerations on passive legitimacy put forward in the statement of defence

by Avus Italia Srl.

Given that the provision of article 107 of the code of civil, is aimed at protecting

the public interest and the economy of sentences, it is an instrument that can also

be used in controversies when “the magistrate feels bound to induce or authorise

the injured party to extend their request against the third party indicated as

policy-holder in the relationship” (Civil cassation no. 04/707) [...]



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The court orders the intervention of the insurance company for civil

responsibility in road accidents of the defendant Mr Eisenhut Juergen,

indicated by the defendant as WGV under German law” (Court of Busto Arsizio,

detached section in Gallarate, ordinance of 17 January 2012, Dr Caniato).

On this point, the magistrate Dr Costa of the court of Pordenone stated, as part of

the sentence R.G. 581/2011, that only the mandated organisation was taken to

court.

Regarding the lack of passive legitimacy put forward by the defendant Avus Italia

Srl, the magistrate authorised “the Albe Assurance company of Basle to be

summoned to court” at the request of the other party, with an ordinance issued on

27 May 2011.

7 The direct indemnity

Documents

EN Settlement of damages in Italy for road accidents ... · AVUS Congress: “Settlement of damages in Italy for road accidents involving foreign vehicles ... 1 The claims procedure,