The validity of claims made clauses and worthiness scrutiny according to the United Sections

1. The fact

   According to reports from Il Sole 24 Ore NT+ Diritto and the legal journal Altalex, the case stems from a claim for indemnity filed by a healthcare professional against their insurance company. The doctor had been sued for alleged professional malpractice and had summoned the insurance company to be indemnified against the consequences of any judgment. The company, however, raised an objection based on a contract clause that limited coverage to events occurring within two years prior to the policy inception (two-year retroactivity), whereas the contested event dated back three years. The proceedings went through three levels of jurisdiction: in the first instance, the clause was deemed null for lack of worthiness, a decision confirmed on appeal. Subsequently, the matter reached the Court of Cassation. Given the particular significance of the issue and the persistent interpretative conflict over the legitimacy of retroactivity shorter than the ordinary prescription period, the Third Section, by interlocutory order, referred the decision to the United Sections. The final judgment ultimately established the legitimacy of the clause, while setting rigorous criteria for the trial judge.

2. 

   The rules at play

   1. Art. 1322, paragraph 2, of the Civil Code regulates contractual autonomy, allowing parties to conclude atypical contracts provided they are aimed at realizing interests worthy of protection under the legal system.
   2. Art. 1917, paragraph 1, of the Civil Code defines the legal model of civil liability insurance based on the occurrence of the event, from which the claims made clause derogates by shifting the focus to the claim for damages.
   3. Art. 2965 of the Civil Code prohibits clauses establishing forfeitures that make it excessively difficult for one of the parties to exercise their right.
   4. Art. 11 of Law 24/2017 (Gelli-Bianco Law) mandates, specifically for the healthcare sector, a minimum ten-year retroactivity, serving as a comparison parameter for other professions.

3. What the case law says

   Supreme Court case law has progressively abandoned the idea that the claims made clause is inherently vexatious or null. In the past, it was clarified that such a clause is not subject to the specific written approval required for onerous clauses, as it relates to the definition of the contract's object rather than a limitation of liability. Subsequently, the focus shifted to the scrutiny of worthiness: the judge must assess whether the contractual regulation as a whole achieves a fair balance of risk. The court has specified that the clause is valid even if it provides for limited retroactivity, provided it does not result in a total absence of coverage in exchange for the premium paid. There is no general obligation for insurance companies to guarantee retroactivity equal to the ten-year prescription period for all professions, except where expressly required by law. However, if the limitation renders protection purely illusory, the contract may be declared partially null for lack of concrete cause.

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8. What it teaches professionals

   1. Always check the duration of the retroactivity clause before signing or renewing a policy, comparing it with the prescription terms of your professional liability.
   2. Demand written disclosure from the company or broker highlighting uncovered periods, to prevent the clause from being considered valid merely because it was formally accepted.
   3. Consider purchasing tail coverage or extending retroactivity when changing companies to avoid so-called coverage gaps between contracts.
   4. Keep track of negotiations and premiums paid to demonstrate, in any potential litigation, the lack of a real economic advantage in exchange for the limitation of the guarantee.

References: Art. 1322 c.c.Art. 1917 c.c.Art. 2965 c.c.L. 24/2017

Editorial oversight: Avv. Federico Papa·ICAMUpdated 20 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction