Liability disputes

What we do

Damage caused by others can, in many cases, be recovered from the perpetrator's insurance. If the perpetrator does not voluntarily involve their insurer, the first step must be to establish liability.

Based on the facts and circumstances, it must be investigated which party is liable in a given situation. The basic principle here is that everyone bears their own damage. However, in some exceptional cases, the party causing the damage is not the party that can be held liable for the damage. It is therefore important to investigate and assess who is liable for specific damage.

Within our practice group, our legal experts and lawyers have the experience and expertise to assess liability in specific situations. When a dispute arises regarding the establishment of liability, the legal position will be assessed. Based on this assessment, an attempt will be made to enter into negotiations or judicial proceedings will be initiated.

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.

Liability disputes within insurance law

A liability dispute revolves around the question of who is legally responsible for the damage suffered and who must compensate for that damage. Within insurance law, this takes on a unique dimension: an insurer almost always remains in the background. Whether you wish to recover the damages from the liability insurer of the party responsible, rely on your own liability insurance, or are being sued by an injured party — covered liability is always the pivotal point. In this context, the question of liability and the question of coverage become intertwined.

Our mixed teams of lawyers and in-house counsel handle these disputes across the full spectrum of the business world: from an international group with a global liability program to the baker on the corner held liable by a customer. We assess both the legal basis of the liability and the question of whether and how an insurer must pay out.

Grounds of liability

The law recognizes two main avenues through which liability can arise. In the case of breach of contract , an obligation arising from an agreement is not fulfilled; the basis is Article 6:74 of the Dutch Civil Code (BW). In the case of a tort, liability arises outside of a contract, pursuant to Article 6:162 BW. For a successful claim based on a tort, unlawfulness, imputability, damage, a causal link, and relativity must generally be present.

In addition, the Dutch Civil Code provides for special grounds for liability that frequently arise in insurance disputes, such as employer liability for industrial accidents and occupational diseases (Article 7:658 BW), liability for defective products (Article 6:185 BW), and liability for property, buildings, and subordinates (Articles 6:170 to 6:174 BW). Which basis applies determines not only whether liability exists but also which insurance provides coverage.

Liability and coverage under the policy

Establishing liability is one thing; receiving compensation is another. A liability insurer independently assesses whether the damage falls under the policy conditions . Disputes frequently arise regarding the interpretation of those conditions, exclusions, deductibles, and whether the damage falls within the policy term and scope. Such coverage disputes can completely block the recovery of damages.

In insurance law, it is important that, under certain circumstances, an injured party suffering personal injury has their own direct right of claim against the liability insurer of the party causing the damage (the direct action under Article 7:954 of the Dutch Civil Code). In the case of traffic damage, the Motor Vehicle Liability Insurance Act (WAM) offers a comparable direct right of claim against the WAM insurer. We assess on a case-by-case basis which route leads to a payout most quickly.

Recourse and recovery by the insurer

If your own insurer has already compensated the damage, it steps into your rights by means of subrogation and can recover the damage from the liable party or their insurer (Article 7:962 of the Dutch Civil Code). This right of recourse constantly occurs between insurers themselves, but also directly affects the insured — for example, when a deductible, an uninsured portion of the damage, or a defense regarding fault is at issue.

We assist both insurers in their recourse position and insured parties and companies facing a recourse claim. In doing so, we assess whether the original liability holds up, whether the insurer has correctly estimated the recovered amount, and whether there are defenses that wholly or partially ward off the claim.

Causal link and assessment of damages

A liability dispute often wins or loses on two points: the causal link and the extent of the damage. Only damage that is so related to the event that it can reasonably be attributed is eligible for compensation (Article 6:98 of the Dutch Civil Code). The damage itself is assessed on the basis of the statutory standards for pecuniary loss and, where the law permits, other disadvantage (Articles 6:95 to 6:97 of the Dutch Civil Code).

In practice, we observe that a dispute shifts from the question of liability to the amount of compensation: which items of damage are reasonable, how is future damage capitalized, and to what extent does contributory negligence (Article 6:101 of the Dutch Civil Code) play a role? With substantiated damage calculations and, where necessary, expert reports, we ensure that the claim does not founder on the assessment.

How we assist you

We begin with a thorough analysis of your legal position: the legal basis, which party is liable, which insurance provides coverage, and the strength of the evidence. Based on this, we hold the opposing party or the insurer liable where necessary, conduct negotiations, and reach a settlement if possible. If this is unsuccessful, our lawyers litigate before the civil court or, in the case of disputes with your own insurer, via the appropriate route, such as the complaint procedure at Kifid.

Because lawyers and in-house counsel work together as a single team, we switch effortlessly between advice, case management, and litigation. Whether it concerns substantial business losses suffered by a corporation or an individual entrepreneur with a rejected claim, you always receive a pragmatic, recovery-oriented approach.

Frequently asked questions about liability disputes

How do I hold someone liable for my damages?
In practice, a notice of liability is always made in writing so that you have proof. In the letter, you describe the incident, the basis of liability, and the damage. You often address the notice of liability to the person who caused it; in the case of traffic and personal injury, you can sometimes approach the insurer directly.

My liability insurer is rejecting the claim. What now?
A rejection is not the end of the road. We assess whether the rejection is justified by reviewing the policy conditions, exclusions, and the factual circumstances. Often, there is room to still enforce coverage through negotiation or, if necessary, legal proceedings.

Who bears the damage if it is unclear who is liable?
The basic principle in law is that everyone bears their own damage. Only when another party can be held liable on a statutory basis does that burden shift. Therefore, a thorough assessment of the facts and the legal basis is essential.

What is subrogation and can it affect me?
Subrogation means that an insurer recovers the paid-out damages from the liable party. As an entrepreneur, you may also be confronted with such a subrogation claim; we assess whether the claim and its amount are justified.