The Insurer in Criminal Proceedings: A Strictly Limited Role

Agathe Moreau, partner in charge of the Professional & Industrial Risks department, explains the situations in which an insurer becomes involved in a criminal trial.

The parties to criminal proceedings have always been strictly defined by the Code of Criminal Procedure and limited to the accused, the civil party, and the public prosecutor. The possibility for the criminal court to rule on civil interests has developed only gradually and within narrow limits.

Indeed, even though the offence and the damage suffered by the civil party arise from one and the same act, the criminal court was originally unable to adjudicate on civil interests once it had pronounced an acquittal.

However, the development of insurance throughout the 20th century turned insurers into indispensable actors in compensation proceedings, to the point that the question of their presence in criminal trials quickly arose.

Yet this presence could appear paradoxical, since criminal proceedings are traditionally regarded as serving the protection of the public interest, whereas compensatory actions — especially when they involve an insurer — relate to private, patrimonial interests that are far removed from the defence of the public interest.

This is one of the reasons why the Court of Cassation fiercely resisted the possibility of allowing insurers to appear or intervene before the criminal judge, except as the alleged perpetrator of the offence being prosecuted or as a civil party, directly victim of an offence.

The principles according to which the criminal court may hear the civil action only incidentally and only insofar as it is seised of the public action, and that only a direct and personal harm may ground a civil party’s claim, were therefore strictly applied by the courts.

The insurer’s liability was regarded not as the direct consequence of the offence, but as a contractual obligation arising from the subscription of an insurance policy; and the judge with jurisdiction over the insurance contract could, by nature, only be the civil court. The mechanism of legal subrogation in favour of the insurer who had compensated the victim — even if the latter had constituted itself a civil party — did nothing to alter this.

This resulted in a multiplication of legal proceedings to the detriment of victims and of insurers subrogated to their rights, since, once the criminal proceedings had ended, they were required to bring an indemnification action against the offender’s insurer before the civil court — even though the criminal judgment ruling on the event giving rise to the damage was not binding on that insurer.

Victims were therefore placed at a disadvantage, particularly because their compensation was delayed. This situation appeared all the more inequitable given that the Guarantee Fund had long been granted a right of intervention. The legislature addressed this issue by establishing, through Law No. 83‑608 of 8 July 1983 ‘strengthening the protection of victims of offences,’ the possibility for insurers to appear before criminal courts, whether through voluntary or compulsory intervention.
These provisions now appear in the Code of Criminal Procedure under Articles 388 and following.

As the title of the law indicates, the reform was conceived strictly in the interest of victims, not insurers.

This objective explains why such intervention remains limited, both in terms of the possibilities and conditions under which it may occur (I), its effects (II), and the defences that insurers may invoke (III).

Our firm possesses advanced expertise in defending companies and their executives in matters related to industrial risks, liability for defective products and services, workplace accidents, occupational illnesses, and insurance claims. We provide support ranging from prevention to the management of complex litigation.

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