Court of The Hague: Achmea must drop unlawful requirements imposed on counter-experts (2020)

In July 2020 the Court of Appeal of The Hague handed down a ruling of relevance to the entire Dutch claims-handling practice. Achmea — one of the largest insurers in the Netherlands — was prohibited from imposing additional requirements on the counter-expert engaged by its policyholders. Specifically: the requirement that such an expert be registered with the NIVRE register was held by the Court to be unlawful.

This was a ruling that did not arrive in a vacuum. Krantz & Polak — more specifically the proceedings initiated by Eric Horssius — had brought a claim against Achmea on the basis that, through its policy conditions and its practice, the insurer was effectively compelling policyholders to work exclusively with NIVRE-registered experts. As a result, the statutory right to freely choose one’s own expert was being hollowed out in practice.

What was at stake

Under the Dutch Civil Code, an insured person has the right, in the event of damage, to engage an independent expert of their own. The reasonable costs are payable by the insurer — this is not a favour but a statutory obligation (article 7:959 of the Dutch Civil Code). The rule is an important balancing provision: otherwise an insurer would itself determine what is reasonable, even though it is the insured whose interests must be served.

In practice, large insurers limited that right in various ways. A common restriction was the requirement that the counter-expert be a member of a particular register — usually NIVRE. Registration is not in itself objectionable, but the register in question is a private body and not statutorily mandated. An insurer that requires NIVRE registration effectively restricts which experts an insured is permitted to choose.

Krantz & Polak — a firm without NIVRE registration but with demonstrable expertise — was structurally not accepted by Achmea as a counter-expert. Policyholders who wished to work with this firm were therefore either forced to choose a different expert, or left to bear costs that could not be recovered.

What the Court held

The Court of Appeal of The Hague held — affirming an earlier first-instance judgment — that Achmea could no longer impose this NIVRE requirement. The reasoning may be summarised as follows:

1. The statute is decisive. Article 7:959 of the Dutch Civil Code grants the insured the right to reasonable expertise costs. The statute says nothing about which register the expert must belong to; it merely provides that the expert must reasonably have been engaged and that the costs must be reasonable.
2. A registration requirement restricts freedom of choice. By requiring NIVRE registration, the insurer narrows the pool of experts from which the insured may choose, without any statutory basis for doing so.
3. Expertise can be demonstrated by means other than a single register. A counter-expert whose expertise is demonstrable on the basis of training, experience, certifications and prior work need not also feature in a specific register. The register is a proxy for expertise, not the yardstick.
4. The insurer can address its concerns about quality by other means. Achmea argued that the NIVRE requirement was intended to safeguard quality. The Court held that the statutory framework (reasonable costs, reasonable engagement) is sufficient for that purpose — and that an ex-post reasonableness review remains available.

Achmea was ordered to amend its practice and was no longer permitted to use the NIVRE requirement as a threshold.

Why this ruling matters

The Court’s ruling has three lasting effects for insured persons in the Netherlands.

1. Free choice of expert is a firm right

If you are insured and you suffer a loss, you have the right to engage your own counter-expert — you decide who that is. The insurer may impose requirements on the reasonableness of the costs, but not on the choice of person. Some insurers still refer in their policy conditions or in their communications to a “registered” expert. In light of this ruling such a requirement often does not hold up — let alone serves as grounds for refusing reimbursement of your expertise costs.

2. Expertise is broader than a single register

In the Netherlands there are several ways to demonstrate that someone is a counter-expert of an appropriate standard: vocational qualifications, international certifications (for example for fire investigation), many years of demonstrable experience in comparable files, and publications in professional literature. A register is one of those routes, not the only one.

3. Insurers bear the reasonable expertise costs

This is not a marketing claim from a counter-expertise firm; it is the law, and confirmed by the Court. When you engage us, we invoice our reasonable costs to your insurer — on top of your claim amount. Discussions about what is “reasonable” can arise, but that is something different from a refusal in principle.

What to do if your insurer restricts this right

If you are dealing with an insurer that imposes NIVRE registration or comparable register requirements on your counter-expert, there are three steps you can take.

1. Request written substantiation. On which policy provision does the insurer rely for this requirement, and how does it relate to the Dutch Civil Code and the 2020 Court of The Hague ruling?
2. Refer to the ruling. The Court’s judgment is public and is regularly cited in similar matters. An insurer that fails to comply exposes itself to procedural criticism before Kifid or the courts.
3. Engage support. We have had this discussion many times and know the standard defences insurers raise. Call +31 30 662 2424.

Closing thoughts

A ruling such as this illustrates the importance of legal precedent for the position of the ordinary insured. Without it, large insurers could have continued their practice — not because the law was on their side, but because most insured persons lack the means or the stamina to litigate for years.

The role played here by Krantz & Polak was not solely one of self-interest. The ruling works through for every insured person in the Netherlands who needs their own independent counter-expert.