Ski accident before the contract: What retroactive insurance can cover

Insurance may begin before the contract is concluded, as permitted by Section 2(1) VersVG. Retroactive cover must actually be provided for by the contract. That cover was agreed is not proved by an earlier date requested in an application alone. The application, acceptance, policy, and agreed conditions must be checked. If the ski accident predates even the agreed retroactive inception, that agreement does not include it in time. No benefits beyond those provided by the contract are created by backdating.

Identifying the event that the particular insurance defines as the insured event is required for applying section 2 VersVG. In private accident insurance, a distinction must be drawn between the accident causing bodily injury, permanent impairment established later, and the date a disability benefit becomes payable. The full extent of an injury discovered months later does not by itself establish a new insured event or a lack of knowledge of the earlier event. Decisive remain the agreed definition and the facts known at the time. Therefore, the initial medical records must be read alongside the clause governing the benefit claimed.

Section 2(2), second sentence, VersVG concerns a policyholder who, at the time of contract conclusion, knows that the insured event has already occurred. Unless an effective agreement stipulates otherwise, the insurer is then released from the obligation to pay. Knowledge is required by the provision; merely having been in a position where one ought to have known is not equivalent. Under the contract, it must be assessed whether the known facts regarding the accident and injury establish that knowledge. Therefore, an uncertain medical prognosis does not suffice to treat a known ski accident as an uncertain past event.

The opposite knowledge scenario is addressed by the first sentence of Section 2(2) VersVG: where the insurer knows at conclusion that the possibility of the insured event occurring is already excluded, it has no claim to the premium, and this is no promise to pay for a known loss. In 7 Ob 168/23s of 17 April 2024, the Austrian Supreme Court explains that the contract generally remains valid in the statutory cases. Where both parties know of an event that has already occurred, the starting point is described as a combination of no premium claim and no benefit claim, and any agreement departing from statutory freedom from liability must also be examined.

Under section 2(3) VersVG, where a contract is concluded by an authorised representative or a representative without authority, the knowledge of both the representative and the principal is relevant. The rule applies to the cases in subsection 2 and must therefore be examined on whichever contractual side is represented. The policyholder's own knowledge is not removed by sending an uninformed person. Conversely, the representative's knowledge can matter. Establish who concluded the contract for whom and what information that person held. A description as intermediary or broker alone does not resolve that question of role.

Not every agreement to the contrary is prohibited by statutory freedom from liability. In 7 Ob 5/89 of 9 March 1989, the Austrian Supreme Court recognised an implied agreement excluding section 2(2), second sentence, VersVG, where the loss occurred after the application had been handed to the insurer's representative, the insurer learned of it before acceptance, and nevertheless accepted the application. That approach is confirmed by 7 Ob 168/23s. Both decisions concerned other types of insurance and not an accident policy newly applied for after a known ski accident.

Automatic cover for a ski accident already known before the application is not established by these decisions. The content and scope of any separate promise to pay must be reliably established. According to 7 Ob 5/89, a waiver of freedom from liability is not proved merely by accepting the first premium. The accident and existing medical findings should be disclosed, and an unambiguous statement should be requested on whether that specific known event and the specified consequences are being covered. That certainty is not provided by either an earlier inception date or a general advertising statement.

A chronology of the accident, application, acceptance, and retroactive inception should be prepared. The medical findings and communications known by the policyholder, representative, and insurer at each date should be recorded. The complete policy and conditions, accident notifications, proof of receipt, and any express confirmation or refusal of cover should be preserved. Legal assessment can then establish whether the event falls within the agreed period, what knowledge existed, and whether a separate promise is effective. Incorrect or incomplete statements are no route to reliable retroactive cover.