- the nature of the insurance contract, which cannot cover, by express legal provision, damage (Article 1900 of the Civil Code) or liability (Article 1917 of the Civil Code) attributable to wrongful intent;
- the new version of Article 122 of the Insurance Code, as amended by Legislative Decree 184/2023 (transposing Directive 2021/2118/EC), provides that the insurance obligation for third-party motor liability is applicable to “the vehicles referred to in Article 1, paragraph 1, letter rrr) if used in accordance with the vehicle’s function as a means of transport at the time of the accident”; and the use of a vehicle as a instrument of offence would not seem to be in accordance with its ordinary function of transport at all.
Why motor TPL must cover
Overcoming these, albeit understandable, perplexities has long since been taken care of by the Supreme Court, making its own the prevailing aim of protecting road victims that permeates European motor liability legislation. The Court has affirmed “the absolute specificity of the compulsory motor insurance system” (sentence 5422/2023); and then upheld that “the insurance guarantee also covers damage wilfully caused by the driver towards the injured third party, who, therefore, has the right to obtain compensation for the damage from the liable party’s insurer without prejudice to the insurer’s right to claim against the damaging insured, for whom the contractual cover does not operate” (pronouncements 19368/2017 and 27234/2018).
More linearly, then, the United Sections of the Supreme Court specified that the use of the vehicle that does not conform to its habitual function “such as when it is used as a weapon to run over and kill people, is not covered by the motor liability insurance against only the insured party/damaging party (in the case of Modena, it is both the owner of the car and the driver who mowed down the pedestrians, ndr) and not instead towards the injured third party, who can in any case avail himself of the direct action against the responsible party’s company” (sentence 21983/2021).
Directive 2021/2118 itself (in recital 9) admitted the possibility for Member States, at the transposition stage, to exclude malicious damage from compulsory motor vehicle insurance, but only on the condition that an alternative compensation mechanism was provided for, which guarantees the injured party compensation for the damage suffered in a manner as similar as possible to those provided for by the compulsory insurance system. A mechanism that the Italia legislator did not provide for in the transposition phase.
The problem of ceilings
In short, there seems to be no doubt that, in cases similar to that of Modena, the injured parties maintain their own rights to compensation from the insurance company of the party responsible. All this, of course, within the limits of the minimum limits of the law (Euro 6,450,000 per claim, in the case of personal injury, and Euro 1,300,000 for property damage, regardless of the number of injured parties). These ceilings could, in catastrophic cases such as last Saturday’s, prove to be insufficient.
The alternatives
Those harmed by an event like the one in Modena could also turn to the Fondo vittime dei reati intenzionali violenti, governed by Law 122/2016, which can intervene, among other things, by providing compensation (i.e. not compensation, but a sum not necessarily commensurate with the full amount of civil damages) of 25,000 euro for very serious injuries, deformation of appearance through facial injuries, and 50,000 euro for murder.
Based in New York, Stephen Freeman is a Senior Editor at Trending Insurance News. Previously he has worked for Forbes and The Huffington Post. Steven is a graduate of Risk Management at the University of New York.