Compensation claim of the insurance agent

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The compensation claim of the insurance agent arises under certain conditions with the termination of insurance agency contracts as a special form of the compensation claim of the commercial agent according to § 89b HGB . This often leads to a dispute about whether and to what extent the insurance agent is entitled to this compensation claim.

The "principles for calculating the amount of the compensation claim"

In order to simplify the compensation calculation, the participating associations have agreed on the so-called “principles for calculating the amount of the compensation claim” for the areas of property, life, health, building society savings and finance. The calculation according to the "principles" is usually carried out by the company represented.

The highly schematic calculation can - depending on the remuneration system and the circumstances of the individual case - lead to a lower compensation amount than is owed according to the legal eligibility requirements of Section 89b HGB. In any case, a review of the inventory values ​​and factors is recommended, and under certain circumstances an alternative calculation in accordance with the eligibility requirements of Section 89b (1) HGB.

The “principles” do not have the character of a legal norm. They cannot be effectively agreed before the termination of the agency contract if they deviate from the legally owed compensation claim to the detriment of the representative. Whether and to what extent an assertion of the compensation claim is recommended according to the law, however, is a question of the individual case and a specific alternative calculation.

Compensation calculation according to the law

Through the compensation claim, the representative should receive additional remuneration for contracts that he was able to broker for the benefit of the company and that would have earned the representative commissions if he had continued to work for the company.

Compensable commissions

The claim only exists if, as a result of the termination of the agency contract, the representative loses commissions that would be remunerated if the representative continued to act as a broker. Remuneration for a non-agency, administrative service of the representative, on the other hand, cannot be compensated.

The commissions that can be compensated also include the so-called super or management commissions, insofar as they are paid for the fact that the insurance agent recruits, trains and supports and supports the false sub-agents who report to him.

The same applies to so-called dynamic commissions, with which an increase in the amount of a contract is paid.

In particular, it is controversial whether and to what extent commissions from the 2nd year of the contract represent a brokerage fee or an administration fee. According to case law, the representative is required to present and provide evidence for this. In individual cases, however, the representative can help with a simplification of evidence: If the company has not contractually stipulated the shares of the agency and management commission, the representative can determine the agency share. The company then bears the burden of demonstration and proof that the brokerage rate is lower.

forecast

In order to determine the commission losses incurred after the end of the agency contract, the commissions that can be offset are to be extrapolated up to the agreed or expected end of the respective contracts. It should be noted that not all contracts are continued to their intended end, but can end prematurely through termination or the occurrence of the insured event. This is usually to be taken into account with a percentage discount per year.

equity

In the context of the equity control, according to the case law, a pension fund financed by the company can have a reducing effect, whereby here again all circumstances of the individual case must be considered. The company is not entitled to full crediting in every case (see e.g. Munich Higher Regional Court, judgment of November 16, 2006, Az. 23 U 2539/06), even if this is incorrectly interpreted in practice with reference to the in this respect Case law of the BGH from 2002 is tried again and again.

Maximum amount

The maximum amount of § 89b paragraph 5 HGB limits the compensation claim to three times the annual average commission of the insurance agent. Contrary to a misunderstanding that occurs again and again in practice, this is not a justification for a claim, but only a limitation of claims.

Due date and assertion

The compensation is due when the contract is terminated and must be claimed by the representative within one year of the end of the contract, otherwise it will lapse.

Statute of limitations

The claim expires after three years, beginning at the end of the year in which it arose and the representative became aware of the circumstances giving rise to the claim. A 10-year limitation period runs regardless of knowledge. This period can be contractually shortened under certain conditions.

BGH rulings on the subject

  • BGH, December 4, 2013, Az. XII ZB 534/12
  • BGH, June 14, 2006, Az. VIII ZR 261/04
  • BGH, December 22, 2003, Az. VIII ZR 117/03
  • BGH, November 20, 2002, Az.VIII ZR 211/01
  • BGH, May 4, 1959, Az. II ZR 81/57