Case law by Krantz & Polak
In 2015 CDA member of parliament Peter Oskam tabled a series of questions to the Minister about indemnity insurers' practices on counter-expertise — the start of a political and legal movement.
On 27 October 2015 CDA member of parliament Peter Oskam tabled a series of questions to the Minister of Security and Justice about the way Dutch indemnity insurers deal with the engagement of an own counter-expert by insured persons. The questions came at a time when the topic was receiving prominent attention in the media — including through consumer programmes and publications about insureds who, as they put it, found themselves snowed under in a claim-handling process in which the insurer itself was both party and assessor. In retrospect, the Oskam set of parliamentary questions marks the political starting point of a debate which, in the years that followed, would extend all the way to judicial rulings and ministerial confirmations.
In the run-up to these questions, various signals had converged. Consumer-rights broadcasts had highlighted cases in which insureds complained about the handling of, in particular, fire, water and storm claims. There was also criticism from counter-experts themselves, reporting that certain insurers were effectively refusing to recognise them — for example by accepting only experts from a single register as interlocutors, or by refusing in principle, or only partially, to reimburse invoices.
The CDA picked up these signals. For a party historically attached to a properly functioning market with balanced positions between consumer and provider, this was a natural file: not ideologically anti-insurer, but critical of market behaviour that erodes the statutory position of the insured.
Peter Oskam’s questions fell broadly into three categories.
Questions on the statutory framework. How do policy conditions relate to article 7:959 of the Dutch Civil Code? May an insurer provide by policy that only experts from a specific register will be accepted as counter-experts? And what is the status of the obligation to reimburse reasonable expertise costs — is that a firm right or a norm open to interpretation?
Questions on market practice. Does the Minister have indications that insurers in practice discourage insureds from engaging their own expert? Is there steering towards settlement through the insurer’s own claim handlers without insureds being made aware of their right to counter-expertise? And how does this relate to the duty of care that insurers owe under the Financial Supervision Act?
Questions on supervision and enforcement. What role does the Minister see for the Netherlands Authority for the Financial Markets (AFM) in practices that restrict insureds’ freedom of choice? Is the dispute-resolution role of Kifid sufficient to do justice in individual cases, or is structural review needed?
The reply to these questions — given in writing in the weeks that followed — was legally careful and politically measured, but contained, for anyone familiar with the area, three clear messages.
First, it confirmed that the right to one’s own expert and to reimbursement of the reasonable costs thereof derives from mandatory law. Policy conditions that depart from this to the detriment of the insured are in principle invalid.
Second, it was acknowledged that the duty of care under the Financial Supervision Act entails that insurers must actively inform their insureds of their rights in a claims-handling process — and not only when expressly asked. Concealing the right to counter-expertise is, in short, at odds with that duty of care.
Third, the Dutch Association of Insurers was called upon to tighten the codes of conduct on counter-expertise itself. The Minister reserved the right, if self-regulation should prove insufficient, to consider additional measures.
The 2015 parliamentary questions did not give rise to any legislative amendment in the short term. They have, however, produced a number of indirect effects which became visible in the years that followed.
The Dutch Association of Insurers revised and tightened its codes of conduct on counter-expertise — albeit at a pace and to an extent determined by the sector itself. The political signal that the issue was on the radar gave tailwind to civil proceedings brought around the same time by and on behalf of insureds against insurers. The rulings later mentioned against Interpolis (2018) and Achmea (2020) are not unconnected to the climate that was partly shaped by these 2015 parliamentary questions.
Consumer organisations have since drawn attention more systematically to the existence of the right to counter-expertise — previously, this right remained invisible to many insured persons, simply because it was not prominently set out anywhere.
As an insured you may today proceed on the basis that your right to your own counter-expert is firmly anchored: in the statute, in the sector’s own codes of conduct, and in a series of judicial rulings which rest on a political foundation that includes these parliamentary questions. If you still encounter an insurer that calls that right into question, you can refer to article 7:959 of the Dutch Civil Code and to the confirmations given on the point by successive Ministers — beginning with the answer to the Oskam questions.
The October 2015 parliamentary questions are not, historically, the finishing line of the debate, but they were a starting point, without which everything that followed would have been considerably harder.
A landmark ruling: the Court of Appeal of The Hague held that Achmea may not demand that its policyholders' counter-expert be registered with NIVRE.
A district court ruling that reaffirmed the statutory right to reimbursement of reasonable counter-expertise costs — and drew a sharper line around what insurers can call 'reasonable'.
A 2017 court ruling made clear that insurers refusing a claim outright on the basis of a suspicion of fraud bear the burden of proof — and that a suspicion alone is not enough.
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