Renata Volodko
Vilniaus universiteto Teisės fakulteto
Civilinės teisės ir civilinio proceso katedros doktorantė
Saulėtekio al. 9, Ii rūmai, LlT-10222 Vilnius
Tel. (+370 5) 236 61 70
Summary
The article deals (in retrospective and perspective purposes) with one of the most actual, controversial and being differently understood aspects of implementation of the institute of motor third party liability insurance – the existence of insurer’s obligation to pay indemnity in respect of non-pecuniary damage, caused by policyholder to a third party. Different positions, concerning the role of insurer in the process of compensation of non-pecuniary damage, being met in civil legal doctrine and lithuanian courts’ practice during implementation of primary edition of law on Compulsory Motor third Party liability of the republic of Lithuania (Law), which do not mention the category of such damage, are presented in the article. The article also illustrates divergent understanding of legal norms, of the institute of non-pecuniary damage and the category of personal damage, mentioned in Law, evaluates existing legal situation and positions, suggests possible ways of solving collision between them and names some of problematic questions, concerning the obligation of insurer to compensate non-material damage during application of present edition of Law (the functional purpose of regulation, it’s accordance with the spirit of Constitution of Lithuania and European Union law).
It is stated in the article, that attempt to solve collision between position, which eliminates any possibility to oblige insurance company to pay insurance compensation for physical and mental pain, and opinion, which declares solidary responsibility of insurer and direct tortfeasor for compensation of non-material damage, as a constitutive element of personal damage, in a way of giving priority to subsequent court precedent appeared to be not effective and even objectively impossible. Official declaration of Civil cases department of The Supreme Court of Llithuania in one of the cases for the existence of insurer’s responsibility to pay insurance indemnity in respect of non-pecuniary damage also did not finish discussions and evaluations, as well as did not eliminate court practice differences.
In order to answer the question, which of these contradictory positions should be chosen to follow, article suggests to take into consideration not only legal instruments, but also evaluate existing problem from practical side. Although the conception, promoting the responsibility of insurer to pay insurance indemnity in respect of any kind of personal amage, suffered during traffic accident, including non-pecuniary damage, seems to be more reasonable in a spirit of new Civil code and the conception of non-material damage, as well as more corresponded with the interests of policyholder and injured party, but on the other hand, the nature and peculiarities of the institute of insurance do not allow to expand the list of insured interests and require from insurer to cover something, he was honestly sure he did not insure, to infringe his lawful expectations and to force him to open “deep pocket”. Such essential factors, as objective impossibility to evaluate non-material damage clearly and strictly; attempt of insurance companies to avoid sharp practices and evaluate their insurance risk as well as the degree of suffered personal harm very narrowly and thoroughly, for example, in a way of practicing psychological and psychiatric expertises of the injured third party, which require quite much time and financial expenses, preclude the process of implementation of non-pecuniary damage institute into insurance law and make menace for effectiveness and flexibility of compensation of non-pecuniary damage in legal insurance relationships.