Insurance fraud

What we do

In 2020, approximately 13,000 cases of fraud were discovered by insurers. It is estimated that this prevented €88 million in unjustified payouts. Our lawyers assist both insurers and policyholders suspected of insurance fraud. Our lawyers have extensive experience and are decisive in resolving fraud disputes.

Insurance fraud can be divided into two types of fraud:

• Breach of duty of disclosure prior to the conclusion of the insurance agreement
• Unlawful claims, for example, resulting from intentionally causing damage, forgery, or misleading the insurer

Many insurers actively investigate insurance fraud in cooperation with the Public Prosecution Service. If insurance fraud is suspected, it is essential to engage legal expertise.

We have the experience and expertise to assume diverse roles, from advisory services to dispute resolution. We have an experienced team of lawyers and legal experts in insurance law. Contact us to discuss the possibilities.

Insurance fraud within insurance law

Insurance fraud is at its core a civil law issue revolving around the insurance contract and the mutual obligations of insurer and insured. Within our field of Insurance Law, we do not view fraud as merely a criminal charge, but rather focus on whether the insurer can legally substantiate its position based on the Civil Code and the policy conditions. The legal emphasis lies on two provisions: Article 7:941, paragraph 5 of the Civil Code (forfeiture of the right to benefits in the event of intent to mislead the insurer) and Articles 7:928 through 7:930 of the Civil Code regarding the duty of disclosure when entering into the insurance contract. We assist insurers who suspect fraud, as well as entrepreneurs and private individuals—from an international corporation to the baker on the corner—who feel wrongly accused.

Burden of proof and intent to deceive

An accusation of insurance fraud has far-reaching consequences, and therefore insurance law imposes strict requirements on the evidence. The main rule of Article 150 of the Code of Civil Procedure applies without exception: whoever invokes a legal consequence bears the burden of proof. The insurer alleging that fraud has been committed must therefore prove it. For the forfeiture of benefits pursuant to Article 7:941, paragraph 5 of the Civil Code, more is required than a false statement: there must be intent to mislead the insurer. Such intent is rarely proven by a statement and must almost always be inferred from facts and circumstances. Our lawyers and in-house counsel rigorously assess whether the insurer actually makes this intent plausible, or whether it concerns a mistake, a rectifiable omission, or a defensible position regarding the extent of the damage.

Personal investigation and unlawfully obtained evidence

In cases of suspected fraud, insurers often engage an investigative agency for a personal investigation involving observations, internet research, or an interview. Such an investigation must comply with the Code of Conduct for Personal Investigations of the Dutch Association of Insurers and with the principles of proportionality and subsidiarity: this intrusive measure may only be employed if less inconclusive investigative methods fail to provide a definitive answer, and the infringement on personal privacy must be proportionate to the public interest. If this code is violated, the evidence may be disregarded as unlawfully obtained. We assess whether an investigation meets these requirements and use deficiencies in the investigation as a defense.

Registration in the EVR and the IVR (CIS Foundation)

The most severe consequence of an accusation of fraud is often not the rejected claim, but the registration of personal data. Insurers can record a suspicion in their Internal Referral Register (IVR) and, if there are sufficient grounds, in the External Referral Register (EVR) of the CIS Foundation, which is accessible to virtually all Dutch insurers. The result is that an insured person can hardly take out insurance under normal conditions anymore, and existing policies are cancelled. An EVR registration is valid for a maximum of eight years. Pursuant to the Protocol on the Financial Institutions Incident Warning System, registration may only take place upon a justified conviction of fraud (not based on a mere suspicion), following a balancing of interests and a proportionality test. We assess whether these requirements have been met and, if necessary, demand the removal of the registration via the insurer, the CIS Foundation, the Kifid , or the civil court.

Civil versus criminal law process

Insurance fraud can proceed along two tracks. In civil law, it concerns the forfeiture of benefits, the recovery of amounts already paid and investigation costs, the cancellation of policies, and registration. In criminal law, fraud (Article 326 of the Dutch Criminal Code) or forgery (Article 225 of the Dutch Criminal Code) may be at issue, sometimes following a report filed via the Centre for Combating Insurance Crime. The standard of proof differs: in civil proceedings, full certainty is not required, whereas in criminal proceedings it is. Our mixed teams of lawyers and in-house counsel monitor the coherence between both tracks, ensuring that a statement in one track does not prejudice you in the other.

Connection with other disputes in insurance law

An allegation of fraud almost always touches upon related themes. If it concerns information provided when taking out the policy, the link to a breach of the duty of disclosure or information obvious. If the dispute revolves around the interpretation of an exclusion, the broader policy dispute. We assess every case within this full context, ensuring that a discussion about fraud does not become detached from the underlying questions of coverage and evidence.

Frequently asked questions about insurance fraud

Who must prove that I have committed fraud?
The insurer. He bears the burden of proof and must demonstrate that there was intent to mislead him within the meaning of Article 7:941, paragraph 5 of the Dutch Civil Code. A mere suspicion is insufficient.

I am registered in the EVR. Can I still be removed from it?
Yes. If the registration does not meet the requirements of the Protocol for the Financial Institutions Incident Warning System – for example, because the conviction of fraud is insufficiently substantiated or the proportionality test is missing – removal can be enforced.

Does insurance fraud always lead to criminal prosecution?
No. Many cases remain civil and end with the rejection of the claim, recovery of funds, and possible registration. Criminal prosecution under Article 326 or 225 of the Criminal Code does occur, but it is not automatic.