In the cases provided for by articles 388-1 and 388-2, a plea based on a ground of nullity or on a clause of the insurance contract and seeking to exclude the insurer from the case must, on pain of foreclosure, be presented by the insurer before any defence on the merits. It is admissible only if it is of such a nature as to completely exonerate the insurer from its obligation of guarantee towards third parties.
The insurer implicated under the conditions provided for by article 388-2 who does not intervene in the criminal proceedings is deemed to waive any exception; however, if it is established that the damage is not covered by the alleged insurer, the latter is disqualified by the court.