Direktkrav vid ansvarsförsäkring i Sverige och i Finland
en bedömning av rättslägen samt en diskussion om direktkravets lämplighet
Two different claim relations arises with a damage covered by a liability insurance. The first claim relation is of course the one between the claimant and the liable as a claim for damages. The other claim relation arises between the liable in his capacity of insured and his insurer as a claim for compensation under the liability insurance. There is a tight connection between the two claim relations because of the fact that it is the claimant?s claim for damages that gives rise to the claim for insurance compensation. The insured persons claim for insurance compensation is just a claim to be indemnified for his liability against the claimant. Because of this close connection between the two claim relations one might think that also a third claim relation, i.e. between the claimant and the insurer, should arise. Would it not be suitable to let the claimant direct his claim directly to the liability insurer? Such a right shall be called a direct action. There is a few differences between the applicable law in Sweden and Finland regarding a claimants rights to a direct action against the liable?s insurer. The Swedish Law of Insurance Contracts (FAL) does not give the claimant an explicit right to raise a claim directly against the liable?s insurer. However, the Swedish claimants have been given such a right by the courts when the liable is bankrupt. This right to direct action has in jurisprudence been considered an imperative right, despite the fact that the regulation itself is not imperative. There has been a debate in Sweden about whether the claimant?s right really should be called a direct action. An essential difference between the Swedish and the Finnish direct action is that the insured persons marketing can trigger a direct action in Finland, something that I have questioned the suitability of. I have questioned the suitability of an absolute direct action because it is, in my opinion, not corresponding with the purpose of liability insurance. As an alternative method for ensuring the claimant?s rights of compensation I have suggested an increased use of compulsory liability insurance, combined with a right to direct action. Such a solution seems more appropriate to me and it avoids the forcing of a claimant?s interest into free relations of contract.