STANDARD CLAUSES APPLICABLE TO NON-LIFE INSURANCE CONTRACTS
Definitions
a) Policyholder.
The person, whether natural or legal, named in the Declarations, who has building work carried out and who is, in the capacity defined in the Declarations, subject to the obligation to take out the insurance provided for in article L. 242-1 of the present code, both on his own behalf and on behalf of successive owners.
b) Insured.
The policyholder and the successive owners of the work for whose benefit the contract has been taken out.
c) Builders.
All the builders named in the Declarations or whose identity is subsequently brought to the attention of the insurer, who are mentioned in 1° of article 1792-1 of the Civil Code and are linked, in this capacity, to the client by a contract for the hire of work in their capacity as designer or consultant (architect, technician or other) or in their capacity as contractor, and who take part in carrying out the construction work.
d) Owner.
The person, whether natural person or legal entity, designated in the Special Conditions, who enters into contracts with the contractors for the design and execution of the building work.
e) Technical controller (when a technical controller is appointed).
The person designated in the special conditions, approved or practising under the conditions provided for in Article L. 111-25 of the Code de la Construction et de l’Habitation, and called upon, at the request of the project owner, to carry out the technical inspection of the studies and work involved in the construction project.
f) Acceptance.
The act by which the client accepts the work carried out, under the conditions set out in article 1792-6 of the French Civil Code.
g) Damage.
The occurrence of damage, within the meaning of article L. 242-1 of the present code, which results in the insurer being liable.
Nature of cover
The purpose of the contract is to guarantee, without any search for liability, payment for work to repair damage to the work carried out and to existing works, fully incorporated into the new work and which become technically indivisible from it, within the meaning of II of article L. 243-1-1 of the present code.
The guarantee covers damage, even that resulting from a ground defect, of the kind for which builders, within the meaning of article 1792-1 of the Civil Code, manufacturers and importers or the technical inspector are responsible, and which:
-compromise the solidity of the works making up the construction project;
-affect the works in one of their component parts or one of their fittings, making them unfit for their intended purpose
-affect the soundness of one of the equipment elements that are inseparable from the viability, foundation, framework, enclosure and roof structures, within the meaning of article 1792-2 of the French Civil Code.
The work involved in repairing the damage also includes any demolition, clearing, removal or dismantling work that may be necessary.
Amount and limit of cover
The guarantee covers the cost of all the work involved in restoring the works or items of equipment of the construction project damaged as a result of a claim, as well as existing works, fully incorporated into the new work and which become technically indivisible from it, within the meaning of II of article L. 243-1-1 of this code.
For buildings intended for use other than as a dwelling, the guarantee may be limited to the amount of the total cost of construction declared in the special conditions, or to an amount less than the total cost of construction declared in the special conditions, if this cost is greater than the amount provided for in I of article R. 243-3 of the present code, without however being able to be less than the latter amount.
The amount of cover is adjusted in accordance with the terms and conditions set out in the Declarations, to take account of the general trend in construction costs between the date on which the policy was taken out and the date on which the claim was settled.
The special terms and conditions specify the procedures for reinstating cover after a claim.
The declared total cost of the building is defined as the final cost of all the work involved in the construction of the building, including all revisions, fees, taxes and, where applicable, additional work. This cost includes the value of rebuilding existing buildings that are fully incorporated into the new structure and that become technically indivisible within the meaning of II of article L. 243-1-1 of this code. Under no circumstances, however, may this cost include any bonuses or bonuses granted by the project owner for faster completion than that provided for in the contract, nor may it be reduced by penalties for delay imposed on the contractor responsible for exceeding the contractual completion deadlines.
Exclusions
The contract guarantee does not apply to damage resulting exclusively from :
a) The intentional act or wilful misconduct of the policyholder or the insured ;
b) The effects of normal wear and tear, lack of maintenance or abnormal use;
c) An external cause.
Starting point and duration of the guarantee
a) The guarantee period is specified in the Declarations; it begins at the earliest, subject to the provisions of b), on expiry of the period of guarantee of perfect completion defined in article 1792-6 of the Civil Code. It ends at the end of a period of ten years from the date of acceptance.
b) However, it guarantees payment of the necessary repairs when :
-before acceptance, after formal notice has been given but not yet received, the work contract with the contractor is terminated due to the contractor’s failure to fulfil his obligations;
-after acceptance, and before expiry of the period of the guarantee of perfect completion within the meaning of article 1792-6 of the Civil Code, when the contractor has not fulfilled his obligations under this guarantee, after formal notice has been given by registered letter or by electronic registered letter, with request for acknowledgement of receipt, which has remained unsuccessful.
Mutual obligations of the parties
The declarations or notifications made between the parties in application of paragraphs A (1°, c), A (3°), B (2°, a), B (2°, c), B (3°, a), of this clause, shall be made in writing either against a receipt, on paper or any other durable medium, or by registered letter or by electronic registered mail with acknowledgement of receipt.
A.- Obligations of the insured party
1° The insured undertakes :
a) to provide the insurer, at its request, with proof of the existence of the ten-year liability insurance policies taken out by the contractors and the technical inspector ;
b) To declare to the insurer that the work has been accepted, and to submit to the insurer, within one month of such acceptance, the official report(s) of such acceptance, together with a statement of the technical inspector’s observations or reservations that remain unresolved;
c) To send him a technical file containing at least the plans and descriptions of all the work actually carried out, within a maximum of one month of its completion;
d) to notify it, within the same timeframe, of any work carried out under the guarantee of perfect completion as defined in article 1792-6 of the French Civil Code, as well as any observations or reservations left unresolved by the technical inspector;
e) To provide him with a statement of any stoppage of work expected to exceed thirty days;
f) to communicate the opinions, observations and reservations of the technical inspector simultaneously to both the insurer and the builder concerned, and not to oppose the insurer being able, at its own expense, to request from the technical inspector, under its cover, any additional information it deems necessary to assess the risks insured.
If the insured is not himself the client, he undertakes to obtain from the client that the opinions, observations and reservations of the technical inspector are communicated in the same way to the insurer and to the builder concerned, and that, under the same conditions, the insurer may ask the technical inspector for any additional information he considers necessary to assess the insured risks.
2° In the event of a claim likely to involve the cover provided by the contract, the insured must notify the insurer.
The claim declaration is deemed to have been made as soon as it contains at least the following information:
-the number of the insurance contract and, where applicable, that of the endorsement ;
the name of the owner of the damaged building; – the address of the damaged building
-the address of the damaged building;
the date of acceptance or, failing that, the date on which the premises were first occupied; – the date on which the damage occurred;
-the date on which the damage occurred, together with its description and location;
-if the declaration is made during the period of perfect completion within the meaning of article 1792-6 of the French Civil Code, a copy of the formal notice issued under the perfect completion guarantee.
From receipt of the claim declaration, the insurer has ten days to notify the insured that the declaration is not deemed to have been made and to request the missing information referred to above. The time limits referred to in Article L. 242-1 of this Code begin to run on the day on which the insurer receives the claim declaration that is deemed to have been made.
3° The insured undertakes to authorise the insurer to note the state of completion of the work to repair the damage for which compensation has been paid in the event of a claim.
4° To enable the insurer to exercise its right of subrogation under article L. 121-12 of the French Insurance Code, the insured also undertakes :
a) To authorise the insurer to access the building site at any time during the period in which the building work is being carried out, until the expiry of the period of the guarantee of perfect completion within the meaning of article 1792-6 of the Civil Code, and, to this end, to make the necessary provisions in the contracts and agreements to be signed with the contractors who are responsible for looking after the building site. In the event of a claim occurring after the expiry date of the guarantee of perfect completion, the insured party undertakes to grant the insurer every facility to access the site of the claim;
b) In the event of a claim, to authorise the insurers covering the ten-year liability of the builders, the manufacturers within the meaning of article 1792-4 of the Civil Code, and the technical inspector to access the site of the claim at the invitation of the person designated in paragraph B (1°, a) ;
c) to authorise the said person to carry out any investigations he deems necessary in order to draw up, for the insurer, an additional report which, taking into account the conclusions of the expert’s report defined in paragraph B (1°, c and b) goes into greater detail, as necessary, with a view, in particular, to identifying the facts giving rise to the loss and the elements likely to support the insurer’s claim.
B.-Obligations of the insurer in the event of a claim
1° Ascertainment of damage, expert appraisal :
a) Subject to the provisions of d below, the damage is recorded, described and assessed by an expert, who may be a natural or legal person, appointed by the insurer.
The expert may be challenged within eight days of the insured being notified of his appointment. In the event of a second challenge by the policyholder, the insurer will have the expert appointed by the interim relief judge.
Where the expert is a legal entity, the latter shall inform the parties of the name(s) of the natural person(s) entrusted with carrying out the assignment in his name and under his responsibility.
At the time of the first request to challenge the expert, the time limits for investigating and settling the claim provided for hereinafter in this standard clause are increased by ten days. In the event of the expert being appointed by the interim relief judge, these same time limits are increased by thirty days.
The expert’s work is carried out in the presence of both parties. The insured may be assisted or represented. Any observations made by the insured are recorded in the expert’s report;
b) The insurer undertakes towards the insured party to give the expert the necessary instructions so that the contractors, the manufacturers within the meaning of article 1792-4 of the Civil Code and the technical inspector, as well as the insurers covering their ten-year liability and that of the insured party, are, in general, consulted for advice by the said expert, whenever the latter deems it necessary and, in any case, before each of the two documents defined in c are deposited with the insurer, and are also systematically informed by him of the progress of the various stages of the damage report and the settlement of compensation;
c) The expert’s mission as defined in a) is limited to the research and gathering of data that is strictly essential to ensure that the insured damage does not worsen and that it is repaired as quickly as possible.
The expert’s written conclusions are therefore recorded in two separate documents:
c. a) a preliminary report, which includes a description and estimate of the precautionary measures deemed necessary to prevent the deterioration of the damage, taking into account, where appropriate, the precautionary measures taken by the insured, as well as summary information on the circumstances and technical characteristics of the loss, enabling the insurer to decide within the period provided for in paragraph 2°, a, on the principle of invoking the cover provided by the contract ;
c. b) an expert’s report, devoted exclusively to describing the technical characteristics of the claim and to drawing up proposals, descriptions and estimates concerning the various measures to be taken and the various works to be carried out in order to fully repair the damage observed;
d) The insurer is not obliged to carry out an expert appraisal if, in the light of the statement of claim :
-it assesses the loss at less than 1,800 euros
-or
-the claim is manifestly unjustified.
If the insurer decides not to carry out an expert appraisal, it will notify the insured of its offer of compensation or its decision to refuse cover within fifteen days of receipt of the statement of claim, which is deemed to have been made.
In the event of a dispute by the insured, the latter may obtain the appointment of an expert.
The notification shall clearly reproduce the previous paragraph.
2° Preliminary report, invocation of cover, precautionary measures :
a) Within a maximum period of sixty days from receipt of the declaration of loss deemed to have been made, the insurer, unless it has applied the provisions of the second paragraph of d of 1°, on the basis of the preliminary report drawn up by the expert, notifies the expert of its decision as to the principle of invoking cover under the contract. The insurer communicates this preliminary report to the insured before or at the latest at the time of this notification;
Any negative decision by the insurer, which has the effect of rejecting the claim for compensation, must be expressly justified.
If the insurer does not contest the invocation of cover under the contract, the notification of its decision includes an indication of the amount of the indemnity intended to cover the expenses corresponding to the execution of the precautionary measures necessary to prevent the damage from worsening. This indemnity shall take account, where appropriate, of any expenses previously incurred by the insured himself in respect of protective measures.
b) The insurer shall take the necessary steps to ensure that the insured is able to receive the preliminary report in good time and, in any event, within a period of time compatible with that which he himself is required to observe by virtue of paragraph a ;
c) If the insurer fails to comply with the time limit set out in paragraph a, and on simple notification to the insurer, the cover provided by this contract shall apply in respect of the loss or damage declared, and the insured shall be authorised to incur the expenses corresponding to the execution of the precautionary measures necessary to prevent any worsening of the damage, within the limit of the estimate given in the expert’s preliminary report. If, within the same period, the insured has not been able to obtain the preliminary report, he is authorised in the same way to incur the expenses in question up to the limit of the estimate that he has been able to make himself.
3° Expert report, determination and payment of compensation :
a) The insurer, unless it has applied the provisions of the second paragraph d of 1° on the basis of the expert’s report, notifies the expert of its proposals as to the amount of the indemnity intended to pay for the work to repair the damage. The insurer communicates this expert report to the insured prior to or at the latest at the time of this notification.
These proposals are subject to price updates or revisions in accordance with the terms set out for this purpose in the Declarations; they must be broken down into the various items of expenditure selected and supported by the necessary evidence, with regard to both quantities and unit prices. In addition to the cost of the work itself, they shall include the ancillary costs required to carry out the said work, such as fees, tests and analyses, as well as any applicable taxes. They shall take account, where appropriate, of any expenses that may have been previously incurred or withheld, as well as any compensation that may have been previously paid in respect of precautionary measures;
b) If an expert’s report is required, the insurer shall take the necessary steps to ensure that the insured receives the expert’s report in good time;
c) In any event, an insured who has informed the insurer that he does not agree with the settlement proposals submitted to him, if he considers that he should not defer the performance of the repair work, shall receive from the insurer at his request, without prejudice to any court decisions to be taken on the merits, an advance at least equal to three quarters of the amount of the compensation notified to him in accordance with the terms defined in a). This lump-sum advance, which may not be revalued and which is to be applied to the final amount of the indemnity to be paid by the insurer, is paid in a single instalment, within a maximum period of fifteen days from receipt by the insurer of the insured’s request.
The insured undertakes to authorise the insurer to confirm that the work to repair the damage for which an advance has been paid has been carried out;
d) If the insured who has requested the benefit of the provisions of paragraph c has not received, within the time limit set out in the same paragraph, the sums representing the advance due by the insurer, he is authorised to incur the expenses relating to the repair work which he undertakes, within the limit of the compensation proposals previously notified to him.
4° The insurer is required to notify the insured, for the latter’s information, of the final position which, in the light of the additional report, it considers should be taken with regard to the exercise of the right of subrogation available to it under article L. 121-12.