Are fingers voluntary or involuntary

OLG Schleswig: Accident insurer has to pay for thumb loss due to lack of evidence of self-mutilation

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An accident insurer must pay an insured person the agreed insurance benefit of 100,000 euros for the loss of a thumb. This was decided by the Schleswig-Holstein Higher Regional Court with its judgment of June 23, 2011. On the basis of the legal presumption of involuntary injury, the insurer would have had to prove that the insured had mutilated himself voluntarily. In the opinion of the court, he had not provided this evidence (Ref .: 16 U 134/10).

Accident insurer relies on self-mutilation for refusal to pay

The plaintiff concluded accident insurance contracts with the defendant insurance company, in which, among other things, she insured her partner against accidental damage. While preparing firewood, her partner cut off his right thumb with a table saw in a rural holiday home. The insurance company refused to provide the agreed insurance benefit of 100,000 euros for such accident damage, because the circumstances suggest that the significant other had mutilated himself voluntarily.

OLG: Insurer for voluntary self-mutilation burdened with evidence - proof not provided

The OLG affirmed a claim of the plaintiff to the requested insurance benefit. According to the statutory provisions, it is assumed in favor of the insured person that he suffered the injury involuntarily. An exemption from insurance benefits therefore presupposes that the accident insurer can prove that the injury was voluntary. In the opinion of the court, the insurer had not provided this evidence. The fact that the plaintiff and her partner were in strained financial circumstances at the time of the injury, that the injury occurred only a very short time after the start of the insurance cover and that the way the section of the thumb was performed without injury, spoke in favor of voluntariness other parts of the hand was typical of deliberate self-mutilation. The partner and a witness present during the accident had also made vague and contradicting statements about the accident. In addition, the amputated phalanx could no longer be found after the injured person had initially been treated in the hospital without bringing the cut thumb.

Self-mutilation unlikely in the specific circumstances

Nevertheless, due to the specific circumstances, the OLG considered it seriously possible that the occurrence of the damage was based on a mere accident. In his opinion, it was unlikely that the right-handed partner with a pre-damaged left thumb had voluntarily cut off his right thumb. Under these circumstances, in the event of voluntary mutilation, nothing could have been more natural than to use the left thumb. The occurrence of an accident with the loss of a finger joint is an extremely unlikely event in itself, from which the vast majority of people were spared for life. The temporal proximity of the conclusion of the insurance contract to the damage can therefore no longer make the situation much more improbable than it already is. According to the court, the failure of the witnesses to remember the accident can also be due to the fact that the accident happened so quickly and surprisingly that the witnesses were unable to register the details at all. It is by no means absurd that someone who has had a phalanx cut off does not notice this in the shock of the first few moments. Given the rural location of the holiday home, it is not surprising that the thumb could no longer be found after returning from the hospital.

From the beck-online database

Higher Regional Court Nuremberg, accident insurance contract, loss of fingers, self-mutilation, BeckRS 2008, 18769

OLG Hamm, accident insurance, suicide, burden of proof, BeckRS 2008, 16289

OLG Düsseldorf, involuntary damage caused by an accident - sawing off the index finger, NVersZ 2000, 378

OLG Celle, assessment of evidence in the event of suspected self-mutilation for the purpose of insurance fraud, BeckRS 1994, 03931

beck-current editors, C.H. Beck, November 2, 2011.