Is there any direct action against the insurance?

Accident in a condominium courtyard or in a parking area: is it possible to act directly against your own insurance company or do you have to contact the other party’s insurance company?

In case of accident on a private area is direct action against one’s insurance permitted? This question could be asked by those who have suffered a road accident in places not open to the public, such as the courtyard of an apartment building, and find themselves needing to establish whether, to obtain compensation for damages, they should turn to their own company or that of the responsible driver. Which of the two should be sued?

The problem becomes further complicated if the responsible car is not covered by car insurance and therefore it is necessary to request the intervention of the Road Victims Guarantee Fund.

The article explores the legal implications and possibilities of direct action against your insurance for accidents in private areas, analyzing the current legislation and the reference sentences that define the rights of the injured. But let’s proceed in order.

Accident in a private area and passive legitimized company

When a car accident occurs on a private area, the injured party has the possibility to request compensation through various legal channels as established by the Insurance Code. For example, you can contact the responsible person’s insurance company directly or your own company (i.e. that of the injured party). This was said by the Court of Cassation, with order no. 8244 of 27 March 2024. The Court clarified that the notion of “

circulation” includes any space in which the vehicle is used according to its usual purpose.

Compensation in a courtyard, a garage or a private parking lot

The ordinance also specified that damages resulting from a car accident must always be compensated by RCA insurance, even if the accident occurs in a private area. This is because Article 122 of the Insurance Code must be interpreted so as to consider any area in which the vehicle can be used as equivalent to a road.

Consequently, the person damaged by an accident can initiate a direct compensation action against their insurance, in accordance with the provisions of article 149 of the Insurance Code, even if the place of the accident is not comparable to a public road.

According to the Court of Cassation, the fact that the accident occurred in an area used for loading and unloading materials does not prevent the injured party from taking direct action against their insurer, as the

article 122 of the Insurance Code must be interpreted in accordance with community law. This provision is a general rule that establishes the conditions for all actions provided for by the Insurance Code:

• the one directed againstresponsible insurer (Article 144);
• direct action againstinsurer of the injured party (Article 149);
• the action against theUci (article 126): Italian Central Office is the office that deals with the management of road accidents that have occurred on Italian territory, including San Marino and the Vatican City, and which have been caused by vehicles registered in a foreign country;
• the action against the company designated on behalf of the Guarantee Fund for road victims (Article 283);
• the action against the liquidator of the company in compulsory administrative liquidation who has been authorized to settle claims (Article 294).

Direct action against your insurance, it must be specified, is not contractual in nature. In fact, although the policy constitutes a necessary prerequisite, it does not represent the source of the right. The action against your own insurance company is the same as provided for in Article 144 of the Insurance Code against the company of the responsible party. The law, in this case, simply identifies a different debtor.

When there is no compensation for accidents in private areas

There is a limit to insurance coverage and therefore to the right to compensation in private areas: theabnormal use of the vehicle. When the vehicle is used for purposes not foreseen for its original purpose, such as for example competitions or extreme recreational activities, the right to compensation is lost.

You must insure your car in private areas

Furthermore, it is important to mention the legislative decree 184/2023 which, implementing the EU directive 2021/2118, introduced theobligation to also insure company vehicles located in private areas. The new regulatory scope of the insurance obligation now also covers static risk in private areas, recognized by both the Court of Justice of the European Union and the Italian Supreme Court even before the issuance of Directive 2021/2118. Despite this, there are some exceptions that allow the suspension of the policy and exclude the need to insure vehicles unsuitable for use as means of transport.