Late offer of compensation
Late offer of compensation and starting point of the double rate
Facts and procedure (Late offer of compensation) :
According to the judgment under appeal (Aix-en-Provence, 13 December 2018), on 5.11.2012, Ms E... was the victim of a traffic accident.
She was a passenger in the vehicle driven by her partner, who was insured by Matmut (the insurer).
Mrs E... then sued the insurer before a tribunal de grande instance for damages. The caisse primaire d'assurance maladie de Paris, the Uneo Montrouge mutual insurer and the Cramif were also involved.
Examination of the pleas in law (Late offer of compensation) :
The second and fourth pleas in law, annexed hereto
3. Pursuant to the second paragraph of Article 1014 of the Code of Civil Procedure, there is no need to give a specially reasoned decision on the fourth part of the fourth plea, which is inadmissible, and on the second and fourth pleas, the first three parts of the latter, which are clearly not such as to result in cassation.
The third plea
Statement of the case
4. Mrs E... complains that the judgment limited her overall bodily injury to the sum of 333,585.74 euros, held that the compensation due to her was 89,615.63 euros and ordered Matmut to pay her this sum with interest at the legal rate on the sum of 29,615.63 euros, once the provision of 60,000 euros had been deducted, whereas :
"1°/ that in deciding that the temporary functional impairment suffered by Mrs E... was "to be compensated on the basis of approximately 800 euros per month", the Court of Appeal recognised that this assessment was only an approximation of the damage actually suffered, and therefore violated the principle of full compensation for damage, together with Article 1382 of the Civil Code in its wording prior to that resulting from Order No. 2016-131 of 10 February 2016;
2°/ in the alternative, by deciding that the temporary functional impairment she had suffered should "be compensated on the basis of approximately 800 euros per month", the Court of Appeal recognised that it was making a lump-sum assessment of her loss, and therefore breached the principle of full compensation for loss, together with Article 1382 of the Civil Code in its wording prior to that resulting from Order no. 2016-131 of 10 February 2016;
3°/ in the further alternative, by deciding that his temporary functional deficit should 'be compensated on the basis of approximately 800 euros per month', the Court of Appeal gave a dubious ruling in breach of Article 455 of the Code of Civil Procedure.
The Court's response
5. The ruling begins by pointing out that the temporary functional impairment includes the loss of quality of life and the usual pleasures of life, as well as the loss of enjoyment and sexual harm during the period of temporary incapacity.
6. In order to compensate the temporary functional loss, the Court of Appeal, after recalling that this item includes the loss of quality of life and the usual joys of life, the loss of enjoyment and the sexual loss, during the temporary incapacity, took into account the variation in the rate of functional loss suffered by Mrs E... during the period in question, as well as the nature of the disorders generated and the discomfort suffered by her.
7. The Court of Appeal, in exercising its sovereign power to assess the extent of the loss for which compensation was due, therefore used reasons that were free of any doubt and that did not make a lump-sum assessment, and fixed it at the sum that it retained.
8. The plea is therefore unfounded.
The fifth part of the first plea in law
Plea in law :
9. Mrs E.. makes the same complaint against the judgment, on the grounds that "the Court of Appeal set her average monthly income at 2,218.53 euros based on the net taxable salary received between 1 January 2012 and 31 October 2012 ; by stating that the net taxable salary received over this period included the deductible CSG, the non-deductible CSG and the CRDS, even though on the ten pay slips corresponding to this period, the "net taxable salary" is calculated after deduction of the deductible CSG, the non-deductible CSG and the CRDS, the Court of Appeal violated the principle prohibiting the judge from distorting the documents of the case, in this case the ten pay slips, and Article 1134 of the Civil Code in its wording prior to that resulting from Order no. 2016-131 of 10 February 2016. "
The Court's response :
In view of the judge's obligation not to distort the writing submitted to him:
10. In ruling as it did, the Court noted that, based on her pay slips, Mrs E... received a net taxable salary of 22,185.38 euros from 1 January to 31 October 2012. This represents an average monthly amount net of tax of 2,218.53 euros.
11. The ruling adds that these amounts include the deductible generalised social contribution, the non-deductible generalised social contribution and the contribution to the repayment of the social debt and draws the consequence that, in order to assess the current loss of professional earnings, and in order to respect the parallelism of the amounts, the daily allowances paid by the third party payer, including the generalised social contribution and the contribution to the repayment of the social debt, will be deducted.
12. In so ruling, even though the net taxable salary stated as having been received by Mrs E... in her pay slips did not include the deductible generalised social contribution, the Court of Appeal distorted the clear and precise terms of these documents and infringed the aforementioned principle.
And the third part of the fifth plea in law
Plea in law :
13. Mrs E... complains that the judgment ordered Matmut to pay her double interest at the legal rate. This was on the sum of 195,868.75 euros until 27 April 2017, whereas :
-Under Article L. 211-9 of the Insurance Code, an offer of compensation must be made to a victim who has suffered personal injury within a maximum period of eight months from the date of the accident;
-The offer then includes all compensable elements of the loss. Including items relating to damage to property where no prior settlement has been made;
-where the offer has not been made within the time limits set out in article L. 211-9, the amount of the compensation offered by the insurer or awarded by the court to the victim shall automatically bear interest at double the legal interest rate from the expiry of the time limit until the date on which the offer or the judgment becomes final;
-by ordering Matmut to pay Mrs E... double the interest at the legal rate on the sum of 195,868.75 euros until 27 April 2017, without specifying, in the operative part of its decision, the starting point for the accrual of interest, the Court of Appeal breached Articles L. 211-9 and L. 211-13 of the Insurance Code.
The Court's response :
Viewed at Article L. 211-13 of the Insurance Code :
14. Under the terms of this text, when the offer has not been made within the time limits set out in article L. 211-9 of the same code, the amount of compensation offered by the insurer or awarded by the court to the victim automatically bears interest at double the legal interest rate from the expiry of the time limit until the date of the offer or the final judgment. This penalty may be reduced by the court due to circumstances not attributable to the insurer.
15. In order to order Matmut to pay Mrs E... double interest at the legal rate on the sum of 195,868.75 euros until 27 April 2017, the judgment states that :
-Matmut had a deadline expiring on 22 August 2014.
-to submit an offer of compensation including all the items retained by the expert in his conclusions.
16. The judgment notes that it is not disputed that Matmut submitted its first offer on 19 December 2014. That is to say, approximately four months after the deadline it had been given, and describes this last offer as late.
17. The judgment adds that it was only by submissions served on 27 April 2017 that Matmut made a proposal for compensation complete, including sexual injury.
18. In so ruling :
-without specifying the date from which the penalty of double the legal interest rate took effect,
-The Court of Appeal therefore violated the aforementioned text.
FOR THESE REASONS, and without it being necessary to rule on the other complaints, the Court :
BREAKS AND CANCELSbut only in that it has :
-. set Mrs E.'s overall personal injury at 335,585.74 euros,
-Declares that the compensation due to this victim is 89,615.63 euros,
-. ordered Matmut to pay Mrs E. the sum of 89,615.63 euros with interest at the legal rate. And this from the date of delivery of the judgment, i.e. 22 June 2017, on the sum of 29,615.63 euros. Of course, once the provision of 60,000 euros has been deducted,
-. ordered Matmut to pay Mrs E. double the interest at the legal rate. 195,868.75 until 27 April 2017. The latter being the date of the judgment handed down on 13 December 2018 between the parties by the Aix-en-Provence Court of Appeal;
It therefore returns the case and the parties to the status they were in before this judgment. Lastly, refers them back to the Aix-en-Provence Court of Appeal otherwise composed;
Late offer of compensation
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