– Indemnification rights of victims in France –
Tourists and short-term business travelers visiting France may be injured in a number of ways including the following:
- automobile or other vehicular accident,
- injury incurred when in a hotel or restaurant or even in a private dwelling,
- injury relating to medical malpractice,
Recovery in France for accidental and non-accidental personal injury is generally based upon a theory of tort (negligent act or omission causing bodily or other injury). But, in certain areas the personal injury recovery may be based upon implied contract (e.g., services of a doctor), or non-fault (e.g., passengers in a motor vehicle).
Most defendants in personal injury matters have liability insurance and therefore the real defendant party in interest is usually a major insurance company doing business in France.
Settling Personal Injury Claims in the Absence of Legal Proceedings
Where the liability of the defendant is not at issue and the only issue is the amount of the damages, the French insurance companies and the legal counsel of the victim can under certain circumstances estimate with a reasonable degree of confidence the eventual amount of damages that a French civil court might award.
Under such circumstances, the victim’s legal counsel will make an initial presentation to the insurance company and normally obtain an advance, partial payment (“provision“) within a relatively short time.
Generally once the victim’s condition has stabilized (“consolidated”), the victim’s counsel arranges for his medical expert to examine the victim and then such doctor and the insurance company’s doctor jointly examine the victim. If their evaluations of the physical and mental prejudice (see criteria listed below) are not too far apart, it may be possible to negotiate a settlement which leads to a fair, quicker and less costly solution.
Naturally, the search first for a non-litigious solution does not deprive the victim of his right to seek a judicial determination.
Cause of Damages
In this introductory article, the issue of proving the liability of the defendant and its insurer is not discussed. However, It is noted in passing that contributory negligence of the victim may result in a reduction in the amount of damages.
Determining the Amount of the Damages
Generally speaking, the following issues need to be addressed when estimating the monetary amount of recoverable damages, be the issue to be resolved in settlement negotiations or in a legal proceeding:
- Economic Prejudice:
1. lost earnings over life
2. additional expenses (e.g., non-reimbursed doctors’, pharmaceutical, travel accident- related expenses, home assistance, etc.)
- Non-economic prejudice:
1. pain, suffering and loss of quality of life
2. aesthetic damage
3. loss of physical/mental integrity
4. loss of life expectancy
Legal Means of Establishing Damages
France does not have juries in administrative or civil litigation, punitive damages are not awarded, and there is generally no oral testimony at the brief trial before the French Tribunal. Accordingly, the Magistrate will usually designate a neutral medical expert to evaluate the nature of the victim’s injuries and disables. On occasions, a second expert may be designated by the Tribunal to examine certain economic issues by an expert-comptable (Certified Public Accountant) or other expert.
In the event of the designation of a medical expert, the victim will be examined by such expert in the presence of the parties’ respective experts. The parties’ respective legal counsels may also jointly meet with the designated expert and submit written observations and documents. The expert will then either submit to the parties’ legal counsel a preliminary report for comment or simply file his definitive report with the Tribunal. As the expert designated by the Tribunal is neutral, usually the parties point out possible discrepancies but do not seek the designation of a second, independent expert. But, when that does occur, the Magistrate is at liberty to designate a second expert or to decline to do so.
Fees of the Expert
The professional fees of the appointed expert are set by the Magistrate. If the liability of the defendant is not contested or is established in the legal proceedings, the insurance company will generally ultimately reimburse 100% of the fee incurred by the victim. If the victim’s attorney asks for the designation and obtains the designation of a second expert, depending on the conclusions contained in the second report and the Magistrate’s decision, the victim may be required to bear part or all of such second fee.
A decision of the trial court (Tribunal de Grande Instance) can be appealed to the Court of Appeals which conducts a complete new retrial. Further appeals to the Cour de Cassations on issues of law, but not issues of fact, occasionally occur.
Victim’s Subrogation Responsibility
If the victim is domiciled outside the European Union in the United States, in Canada or in certain other countries, a substantial portion of his or her medical expenses may be paid by his or her local insurer (e.g., Blue Cross/Blue Shield and/or Medicare). In that event, the medical insurer is generally legally entitled to recover in France (with the victim’s active cooperation) the medical insurer’s payments on behalf of the victim. In doing so, it is exercising its legal right of “subrogation”.
If requested, the victim’s legal counsel can usually facilitate the payment of the subrogation claims at no or very little cost to the victim, since the insurer (e.g., Blue Cross/Blue Shield and/or Medicare) is generally prepared for such attorney to directly receive a portion of the recovered subrogated claim amount.
Author: Jonathon Wise Polier
Avocat aux Barreaux de Paris et de New York
Attorney-at-Law (Paris & New York)