Insurers were put in a queue – Newspaper Kommersant No. 66 (7511) dated 04/17/2023

The Supreme Court of the Russian Federation (SC) explained how insurance is paid for the mistakes of an arbitration manager (AI) during bankruptcy. First, a payment is collected under an additional insurance contract, and if it is insufficient, under the main one. At the same time, the order may be violated in the event of financial problems with the insurer. Managers interviewed by Kommersant say that the court decision will help to avoid disputes between insurers and “stop their attempts to evade payments,” but they fear an increase in insurance prices.

The Supreme Court considered the dispute on AC insurance. The bankruptcy law obliges all managers to insure their liability, the minimum amount is 10 million rubles. in year. In case of infliction of losses on the persons participating in the bankruptcy case, the insurer shall pay compensation. Sometimes an additional AC insurance contract is concluded for a specific case, the amount of which depends on the book value of the debtor’s assets.

In the case considered by the Supreme Court, we are talking about the bankruptcy of OJSC Permatodor (it was declared insolvent in October 2016). His creditor VTB demanded to recover 4.3 million rubles from the AC. losses to the bankruptcy estate, believing that the manager overpaid for the services of a property appraiser. The arbitration courts granted the claim. But the main insurer IC “Arsenal” refused to pay compensation, citing the fact that it should be done by the Management Company “Help”, which provided additional insurance.

Disagreeing with this, AU, on behalf of Permavtodor, filed a lawsuit against IC Arsenal. Arbitration courts of three instances refused, considering that if there are two AC insurances, “in the first place, compensation is paid under an additional agreement, and if the amount is insufficient, under the main one.” The courts rejected the arguments that it was impossible to receive compensation from Pomosch, since the company’s insurance portfolio was transferred to RICS LLC, which itself is going bankrupt, and the register of creditors’ claims has already been closed.

Permavtodor appealed the refusal to the Supreme Court, believing that if there are several insurances, the debtor has the right to apply to the insurer for any of them. The applicant also insisted that declaring RICS bankrupt “in itself means that the company is unable to satisfy the claims of creditors.” As a result, the Economic Collegium canceled the decisions of the courts.

The Supreme Court clarified that the law does not distinguish between insured events for the main and additional liability insurance of the AC, that is, the obligation to make a payment under any of these contracts occurs “simultaneously for the same insured event.” An additional agreement is concluded in relation to the bankruptcy procedure of a particular debtor based on the book value of its assets, therefore, “the position on the priority procedure for payment through an additional agreement is not without legal meaning,” the economic board admitted. But, the Supreme Court emphasized, the additional agreement should “provide real compensation for losses, and within a reasonable time,” and in this case there is no such possibility. The dispute has been sent back for reconsideration.

Anna Larina, Executive Director of the Pomoshch Management Company, says that the decision will help creditors recover compensation from insurers under the main contract. Usually, the priority was regulated by the rules of the insurance company in favor of the priority of payment under an additional contract, but “in practice, the question arose whether such rules could apply to situations where the main and additional contracts were concluded with different insurers,” says Sergey Domnin. Now the Supreme Court “given, in fact, a positive answer”, which, according to Mr. Domnin, will allow “to avoid disputes about the order of payments between different insurers and increase the effectiveness of insurance protection.” But at the same time, the position of the Supreme Court will allow “to stop situations where the insurer will evade payment with reference to the need to receive money in order of priority from another insurer,” when it is obvious to everyone that the bankrupt insurance company “will not make any payments,” emphasizes Sergey Domnin.

Valeria Gerasimenko, General Director of the Union of Autonomous Organization SRO “Northern Capital” notes that in practice, insurance payments “are extremely rarely made without a trial – companies are not interested in this and, accordingly, delay the process by any means.” Until “healthy competition” between insurers is created in the field of AC liability insurance, Ms. Gerasimenko believes, creditors “will continue to fight for insurance payments only through lengthy litigation.” Sergei Domnin adds that the decision of the Supreme Court “increases the actual risks of the insurer.” Therefore, the AU believes, “it can be expected that these risks will be passed on to the consumers of services themselves, that is, managers,” by raising tariffs.

Ekaterina Volkova