Through December 21 2006 the funding of the Social Security Act 2007 and in particular article 25 Parliament has amended the subrogated third party payers use in depth

April 16, 2012 5:56 AM
Through December 21 2006 the funding of the Social Security Act 2007 and in particular article 25 Parliament has amended the subrogated third party payers use in depth

Through December 21, 2006 the funding of the Social Security Act 2007, and in particular article 25, Parliament has amended the subrogated third party payers use in depth. This text also revised the rules for compensation for the injury to the victims, which has helped create a chaos in the world of insurance and social assistance. Indeed, under the terms of this law passed in haste and without further discussions, the legislature changed two things. He has not only reformed the base of the subrogatory action of third-party payers, including social security against the third, but it also changed the rules of priority between victims and third party payers for competition between them, which is not without economic consequences!

First novelty: third-party payers can now exert their action on the basis of all of the allocated social benefits to the victim, and for a refund by the third party liable to the extent of the rights of the victim, this included its heritage character rights. They must now submit their applications by peer and ventilate their use by heads of damage suffered by the victim, placing their requests only harm for which they paid benefits. If the principle, already adopted in other European countries, such as the Germany and the Switzerland, and widely supported by the Ombudsman of the Republic as well as by the Lambert-Faivre and Dintilhac work committees, may seem simple and just for the victims, it brings to the contrary, or decree, large questions among practitioners. Thus, the insurance companies are tempted in many cases, and particularly in the event of payment of an annuity or pension, to suspend their transactional compensation offers of claims pending clarification.

Difficult indeed to do otherwise, whereas Parliament gave no definition of the compensable positions and he has not established a crosswalk between these positions and benefits paid by social security. In the meantime, companies can only be based on the nomenclature formalized by the commission of work Dintilhac, which was distributed to the various jurisdictions by the Ministry of justice. It is, according to the circular of the Ministry of Justice taken on February 22, 2007, "a reference approved by all the actors of the right to compensation".

Preference to the victim

Second novelty: the preference for the victim to the third-party payer. Previously, third-party payers could recover all the money they had paid within the limits of the debt of the head. The balance as if paid to the victim. The latter was not therefore, in any event by adding the benefits received by the social organizations and the product of its complementary action, receive more that what was owed in the event of liability. It now appears that the victim may instead claim to the third party liable, by priority to third-party payers, full compensation for his injury, after only deduction of the amounts of the latter, which is to be purely and simply abstraction of the limitation of his rights. The third-party payer may, be paid after payment in full of the victim, which is the less shocking, and fraught with consequences!

Can imagine therefore easily: the reform will not be without impact on the finances of the State, since the social security funds, passing after the victim, likely often no longer be reimbursed by the third party liable for the benefits allocated. It is not in our view, for the finances of the liability insurers, as social organizations do not always exercise their subrogatory action, but that this use is often limited. Some conventions, such as the memorandum of understanding insurance social security 1983 traffic accident, and organize a purely flat against the insurers funds remedy, resulting in practice a waiver of the Fund part of its debt. On the other hand there is little chance in the future that victims deprive to claim all of their due to insurance companies.

It is perhaps for this reason that the Ministry of Justice decided recently to reduce the scope of this reform under the terms of a circular taken on February 22, 2007, by excluding from the scope of work accidents and occupational diseases.

This circular, which States that "the subrogatory remedies from the State or the social security funds is globalized on all the leaders of economic harm without preferential right to payment of the victim" in application of article 5 of the order of 7 January 1959, and l. 454 - 1 of the Code of social security which have not been modified, has actually contradict the doctrine which was unanimously passed to the implementation of the reform to the workmen's compensation. The 17th Chamber of the Court of appeal of Paris, March 4, 2007, had also adopted this position.