Insurance Litigation 2022 Comparisons

Last Updated October 04, 2022

Law and Practice


Kvale Advokatfirma DA is a leading commercial law firm that has provided assistance to Norwegian and international businesses since 1988. The firm is particularly renowned for assisting some of Norway's largest companies with their most important and complicated cases. Kvale´s lawyers have extensive experience in negotiations, dispute cases before the ordinary courts and arbitration. With a broad understanding of the insurance industry, the firm's lawyers provide assistance within the entire specialist field of insurance law and have particular experience in professional liability insurance (directors’ liability, lawyers’ professional liability and other adviser liability); construction risk; business interruption insurance; and maritime/industrial insurance.

Statutory and Procedural Regime in Norwegian Jurisdiction 

The Norwegian court system does not contain a court specialised in resolving insurance disputes. Insurance disputes must therefore be brought before the ordinary courts (or conciliation boards) or resolved through alternative dispute resolutions bodies, eg, arbitration or court mediation. 

Insurance disputes before the Norwegian courts

The Norwegian Dispute Act sets out the regulatory framework for cases brought before Norwegian courts. The Dispute Act concerns all civil lawsuits and does not adopt special rules for disputes relating to insurance. 

The district courts (or the Oslo City Court) are the ordinary first instance courts in civil disputes, provided that the amount in dispute is at least NOK200,000 and both parties have been assisted by a lawyer. If these requirements are not fulfilled, the cases shall be initially considered by the conciliation board. 

Proceedings before the court are initiated when the court receives the writ of summons from the plaintiff or, alternatively, a decision from the conciliation board accompanied by a statement from the party that wishes to challenge the decision. The court will normally schedule a hearing within 8 to 12 months, after which a decision on the matter will be presented, normally within four to six weeks, depending on the complexity of the matter. 

The district courts' decisions may be appealed to the court of appeal. The court of appeal has full authority to decide on both legal and factual issues on the merit. Upon receiving an appeal, a date for a new hearing on the matter will be held within two years. 

Decisions from the court of appeal can be appealed to the Norwegian Supreme Court, and the Appeal Committee will then consider whether the case should be admitted to be tried by the Supreme Court. 

A ruling from the Supreme Court Appeal Committee or the Supreme Court cannot be appealed. 

Insurance disputes by arbitration

Arbitration entails that the disputing parties can refer their dispute to other persons or institutions than the ordinary courts to decide on the matter. 

The Norwegian Arbitration Act of 14 May 2004 No 25 (the NAA) provides the legal framework for ad hoc arbitration in Norway. The NAA is modelled after the UNCITRAL Model Law, and there are no significant differences between them. 

The NAA contains a small number of mandatory provisions on procedure and leaves the arbitrating parties substantial autonomy to decide over the dispute resolution process. That said, the NAA prohibits the parties from deviating on fundamental principles, ie, equal rights for the parties to present their case. 

The NAA allows for the parties to agree to a duty of confidentiality. If agreed, the settlement will not be disclosed to third parties. 

The arbitrator's decision is final and binding to the parties. 

Complaints Board for Financial Matters 

Pursuant to the Norwegian Insurance Contract Act (ICA) (Section 22-1 and 22-2), both the insurer and the insured have a right to demand their dispute to be processed by a complaints board. Section 22-1 establishes a duty for the insurer to have internal routines on handling of complaints and to ensure that the insured can obtain a second evaluation from the insurance company before pursuing the claim before an external complaints board. 

ICA Section 22-1 and 22-2 is given further substance by the establishment of the Norwegian Complaints Board for Financial Matters (the "Complaints Board"). The Complaints Board is a specialised entity which offers an alternative dispute resolution process in insurance disputes. 

The Complaints Board proceedings are free of charge and less time-consuming than ordinary court proceedings. However, the Complaints Board's statements are advisory only and cannot be enforced. That said, the Complaints Board enjoys great authority and its decisions are in large respected by the Norwegian insurance companies. 

Submitting a dispute to the Complaints Board will obstruct the parties from submitting the same matter simultaneously to the ordinary courts. Consequently, submitting a claim to the Complaints Board will interrupt any applicable time bars.

A decision from the Complaints Board can be challenged through ordinary court proceedings. The district court is the ordinary first instance for such cases. 

Litigation Process in Norwegian Jurisdiction 

The Dispute Act regulates and dictates the litigation process in Norwegian courts. For the sake of clarity, this section will shed light on the process both before and during the main hearing.

The parties' obligations before the case is heard by the court

Prior to submitting the case to the court, the claimant should notify the defendant of the intention to commence legal action. The notice shall address the grounds for the claim and encourage the defendant to reply within a specific period, eg, 14 days. Failure to notify will not preclude the case, but may reflect negatively when the court later decides on legal costs. 

The litigation process is formally initiated when a writ of summons from the claimant is received by the court. The function of the writ of summons is to provide a basis for the court to hear the case in a sound manner, thus it shall – in a clear and precise manner – present the claims, prayers for relief and the factual and legal grounds for the case. 

Upon receipt, a copy of the writ of summons is sent to the defendant who is given a deadline to reply on whether the claim is accepted, contested, and/or if they object to the court hearing the case. After receiving the defendant's reply, a court-led case preparation meeting will be held with the parties in order to prepare a plan for the continuation of the case. 

The main hearing 

During the main hearing, the court will clarify the parties' positions, the grounds upon which the claims are based and the previously announced presentation of evidence. The claimant will then have the opportunity to present their case in a focussed manner, and the defendant will be given an equal opportunity to present their view and provide correcting information. 

The main hearing is conducted orally and the presentation of evidence shall be immediate. It is accepted practice to make use of supporting documents. 

During the main hearing, a party cannot submit a new claim, unless it is occasioned by the opposite party's closing submission or if the court permits it. The same goes for evidence, unless it is proved that the evidence could not have been presented at an earlier stage or that the new evidence does not prevent the opposite party's ability to safeguard its interests. 

When the case is ready to be ruled on, the court will declare the case to be closed for judgment. The court will then rule on the matter within a deadline of four weeks. For complex and labour-intensive cases, the deadline may be prolonged by decision of the court.   

Small claims procedure

To achieve an efficient process where legal costs are contained to a reasonable amount in light of the dispute, the Dispute Act dictates that cases where the amount in dispute is less than NOK250,000 shall be processed according to a specific small claims procedure. 

The small claims procedure is a less complex procedure which contains certain simplifications which differ from the standard procedure. Most importantly, the process imposes a limit of NOK50,000 on the legal costs that can be awarded. 

It is noted that the right to appeal is slightly limited in cases processed according to the small claims procedure, as the court of appeal's authority to reject the appeal is expanded. In its decision, the court of appeal will evaluate the need for a second judgment with considerable emphasis on whether the district court has tried the case in an appropriate and satisfactory way. 

The general rules on limitation in insurance disputes

The general rules on limitation in insurance disputes can be found in Sections 8-6 and 18-6 of the ICA , which stipulates the limitation periods for claims arising from liability insurance and claims arising from personal insurances. 

Pursuant to Sections 8-6 and 18-6, the general limitation period for insurance claims is three years. The limitation period starts at the end of the calendar year in which the insured received the necessary information about the circumstances which justifies their claim. However, a claim will in any instance become time-barred after ten years from the end of the calendar year in which the insured event occurred. 

If the insurer has received, and declined, a claim for compensation from the insured, the claim shall not be time-barred before the expiry of the stipulated deadline in the insurer's response.

Claims that have been reported to the insurer during the limitation period will be time-barred no earlier than six months from when the insured (or third party if liability insurance) received a written notice from the insurer which stated that the limitation period will be invoked. The notice must indicate how the limitation period can be interrupted. 

For claims from third parties, if third party's claim becomes time-barred before the insured party's claim against the insurer, the insurer's liability towards the third party nevertheless remains. 

Alternative dispute resolution (ADR) is common in Norway in insurance disputes, as it often offers a swift processing of the case. The ADR bodies most commonly used in insurance disputes are:

  • court-led mediation;
  • arbitration; and
  • the Complaints Board. 

Court-Led mediation

Court-led mediation is a confidential process which is offered by the ordinary courts. The mediation aims to reach an acceptable solution for both parties, by emphasising solutions in both parties' interests, rather than deducting solutions strictly from the law. That said, the law will naturally play a central role and background on which solutions can be accepted. 

The mediator is normally a judge appointed by the court. During the mediation, the mediator will meet the parties separately and together in order to establish a basis for a settlement. If a settlement cannot be reached, the mediator will recuse themselves from the case, which is then submitted for a ruling by the court.   

A large number of cases submitted to court-led mediation results in settlement. When a settlement is reached, the mediated solution may be encapsulated in a court settlement. A settlement will be binding on the parties and can be enforced. 

Complaints Board for Financial Matters

The Complaints Board can process disputes if the claim concerns an insurance payment and the claim has been presented and declined by the insurer. 

When processing the case, the Complaints Board will encourage both parties to comment on the case in written submissions. Proceedings will commence when the Complaints Board considers itself sufficiently informed in the matter to provide a decision. 

The Complaints Board's decisions may be appealed to a specialised tribunal within three weeks of the decision being made public or submitted to court. 

Other Arbitration Processes

The parties may initiate a mediation assisted by a mediator certified by the Norwegian Bar Association or agree to commercial ad hoc arbitration. Such arbitrations can only lead to a contractual agreement. Therefore, to be enforceable, the contract must be presented to the court. 

It must also be mentioned that arbitration can be carried out in another state after which the arbitration award, if the conditions are met, can be enforced in Norway. Enforcement will then depend on whether the arbitration originates in a state with which Norway has an agreement, for example through the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

Under Norwegian law, the parties are given autonomy to agree on both jurisdiction and choice of law. If no agreement can be reached, the dispute can be brought before the Norwegian courts who will address the matter by applying the relevant rules contained in the Dispute Act, international conventions and other conflict-of-laws rules. 

Territorial Jurisdiction 

As a main rule, the territorial judicial competent entity is the court in the district the defendant has their ordinary venue. This is the district in which the defendant has their habitual residence, or, if a company, the district in which the head office is registered. 

Foreign business undertakings that have a branch, agency or similar place of business in Norway have their ordinary venue at this place of business if the action relates to activities at that location. 

If more than one court has territorial jurisdiction, the claimant may choose to which court the case shall be referred. 

Exemption in Insurance Disputes 

The Dispute Act implements the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Lugano Convention"), which thus applies as Norwegian law. 

Pursuant to Section 3, Articles 8-10 of the Lugano Convention, a claim for insurance payment against an insurance company may be brought before the court at the claimant's ordinary venue, or to the court in the home state of the defendant. 

The exemption applies both for insurance claims submitted by persons and business enterprises as there are no requirements as to who the claimant is. The decisive factor is that the claim concerns an insurance payment from an insurer.

International Disputes

If neither party has its ordinary venue in Norway, the court will resolve its territorial jurisdiction in the case in light of what has been agreed between the parties, or, if no agreement exists, by evaluating whether the facts in the case have sufficient connection to Norway. 

Choice of law: when agreed in contract

In international insurance matters, it is common to agree which country's law is to be applied in disputes between the parties. To a large extent, Norwegian courts will accept such provisions and apply the agreed law accordingly. 

In the absence of an agreement, the court will normally examine if the question can be resolved by applying international conventions to which Norway adheres. If none exist, the court will assess the question in light of Norwegian international private law. The chosen law is then the law of the state to which the case has its strongest connection, which is decided by applying the so-called Irma-Mignon formula which coincides with the "individualising method" common in many states. 

Even though the law of another state applies, the court may apply Norwegian law if the applied law deprives a party from substantial insurance principles. This may be particularly relevant in consumer relations. 

Further, the court may also invoke the so-called ordre public doctrine by refraining from applying the law of another state if said law would bring forth ethical and moral results contrary to Norwegian legal traditions. Conflict with mandatory provisions in Norwegian law is not sufficient, thus the principle is applied mainly in clear-cut cases, for example where the law is based on direct and unjustified discrimination. 

Enforcement of Foreign Judgments in Norway

The Enforcement Act of 1992 dictates which judgments can be enforced under Norwegian jurisdiction. Pursuant to Section 4-1 litra g and h of the Enforcement Act, all foreign judgments may be enforced in Norway, to the extent determined by law or agreed with the state in question. 

A central provision in this regard is the Lugano Convention, which applies as Norwegian law. The Lugano Convention provides rules on jurisdiction and enforcement of judgments in civil and commercial matters, including insurance disputes. 

The parties to the Lugano Convention are the EU, Denmark (which is outside judicial co-operation in the EU) and the EFTA states of Norway, Iceland and Switzerland. A judgment in one of these states can therefore be enforced in Norway pursuant to the provisions of the Convention. 

For the judgment to be enforced, one must first submit an application to the local Norwegian court and declare the judgment to be enforceable in Norway. Enforcement will be allowed if the judgment is from a member state of the Lugano Convention and the court can decide on the matter without the presence of the debtor. The debtor can nevertheless appeal the decision at a later date. 

Agreed Jurisdiction 

In the absence of law or a binding convention on enforcement between the state of Norway and the state in question, enforcement of a foreign final judgment may be accepted if the parties have agreed on the jurisdiction of the relevant foreign court, eg, through a jurisdiction clause for the specific action or for actions that arise out or a particular legal circumstance. 

Enforcement of said judgments requires that the parties submit an application for enforcement to the court. 

The court will only decide whether the judgment can be enforced and the underlying claim will not be addressed. However, the general preservation of the ordre public doctrine will apply. 

Other Foreign Judgments

If the judgment is delivered in a state in which there is no binding convention with Norway and the parties have not agreed on the jurisdiction of the relevant foreign court, the judgment will not be enforceable in Norway. 

That said, the parties can, however, submit the case for processing in a Norwegian court or submit their case for arbitration. The original judgment, although not legally binding on the court, may be presented as evidence.

There are no courts specialised in insurance law in Norway. As a consequence, Norwegian courts may not possess the same level of precision in insurance law as a specialised tribunal. 

That said, Norwegian courts are one of several preferred institutions through which insurance disputes are resolved. The courts consists of competent judges with a minimum of five years' juridical education and several years of legal practice. 

Although not specialised in insurance law, the procedure prescribed in the Dispute Act allows for the usage of expert witnesses and for the judge to appoint expert co-judges if considered necessary to appropriately try a case. 

Apart from any responsibility for the opponent's legal costs, proceedings before Norwegian courts are relatively reasonable compared to other states' courts. Furthermore, the costs will often be lower than the cost of arbitration, where the parties must provide for the judges' salaries. The case processing time is also relatively short, especially in the lower instances.

Section 6 of the Norwegian Arbitration Act limits the court's authority in cases where the contracting parties have agreed that disputes shall be subject to arbitration. In such cases, the court's authority is limited to questions related to the appointment of arbitrators, including their impartiality and whether the arbitrators' handling of the case has been procedurally correct. 

The Norwegian Arbitration Act implements the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Pursuant to the Section 45 of the Arbitration Act, an arbitration award shall be recognised and enforceable regardless of the country in which the arbitration award was delivered. 

Recognition and enforcement of an arbitration award presupposes that a party makes the arbitration award available for the court in the original or by a certified copy. If the arbitration award is not drafted in Norwegian, Swedish, Danish or English, the party must also make an authorised translation available for the court. 

Arbitration is one of several dispute resolution processes used to resolve insurance disputes. However, arbitration is most commonly used in commercial matters where the parties are professional and the insured value is significant.

If submitted to arbitration, the Arbitration Act will apply. The disputing parties are given a wide authority to decide on the case processing rules, with certain exceptions tied to fundamental principles, ie, equal opportunity for the parties to present their case. 

An arbitration award is final and binding. While it is not made public, the parties can agree otherwise.

The Norwegian Insurance Contract Act (ICA) governs the creation of insurance contracts under Norwegian jurisdiction. The ICA is semi-mandatory, thus the principle of contractual freedom is prevalent in its provisions. However, the parties' contractual freedom will be limited in certain aspects, in particular in consumer relations. 

The ICA recently saw structural and material changes applicable from July 2022 to accomplish adherence to the EU Insurance Distribution Directive and Solvency II Directive. Parts of the ICA are made mandatory and cannot be deviated from unless such right is explicitly given in the regulation (Sections 1-3, 1A-2, 10-3 and 20-1 of the ICA). Some parts of the ICA can only be deviated from if the deviation is of no disadvantage to the insured (Sections 2-3 and 10-3 of the ICA). However, most of the regulations in ICA can be deviated from if the insurance in question concerns values of a certain amount. This will typically be insurance in the shipping or aviation sector.

Although the parties may have contractual freedom depending on the type of insurance, the ICA will serve as a point of reference when uncertainties in the contract are to be interpreted. When interpreting an insurance contract, the court will often confer with the relevant provisions in the ICA and supplement the contract thereafter.

In some cases, the court may decide to fully or partly revise or set aside the content of the contract if enforcement would lead to an unreasonable result. The threshold for revision is high and will only occur in clear cut cases, for example, cases in which the parties have neglected basic and fundamental insurance principles or have disloyally withheld important information when the contract was concluded.   

Insurers' Right to Receive Information from the Insured 

Despite leaving the parties with contractual freedom concerning the content of the insurance agreement, as stated at 4.1 Implied Terms, there are several provisions in the ICA which cannot be deviated from. These concern fundamental rights for the parties to ensure a loyal and sincere contractual relationship. 

A central mandatory right derives from the principle of loyalty between the contracting parties, which obliges the insured to disclose relevant information concerning the insurance risk to the insurer. This duty is mirrored by the insurer's right to request information concerning matters that are relevant when asserting the risk. When asked, the insured must provide correct and complete answers to the insurer's request. Failure to do so may result in voidance of the contract. 

In the absence of a request, the insured will nevertheless be obliged to provide information on matters they must understand are of significant importance for the insurer's assessment of risk. This also encompasses the point at which the insured becomes aware that incorrect information about the risk was provided. They shall then notify the insurer without undue delay. 

Insurers' Rights When the Insured Is in Breach of Their Obligation to Disclose Relevant Information

The insurer will not be liable for an occurred insured event, if the insured has fraudulently neglected their duty to provide information concerning the risk. Fraudulent negligence occurs when the insured positively knows that the information they provide is incorrect or incomplete, and the purpose of providing it is either to obtain insurance coverage or to obtain an agreement on better terms than they would otherwise have obtained.

If the information was not given fraudulently, but they are nevertheless to blame for their negligence, the insurer's liability to the insured can be reduced or waived. 

Upon determining the extent to which the insured is to blame for giving incorrect information to the insurer, the court will take into consideration the significance the error has had for the insurer's assessment of the risk. The insured's degree of fault, the cause of the damage and other circumstances are also of relevance.

The insurer's right to waive or reduce their liability will however be limited if the beneficiary in the insurance contract is a third party, presupposed the third party cannot be blamed for the fraudulent or negligent conduct of the insured. 

In Norway, professional liability insurance disputes are on the rise. The threshold for pursuing professional advisors has been lowered; and therefore the underwriters get involved in more disputes. It has also been noted that underwriters are more akin than previously to challenge cover and that the insured's documentary requirements have increased. This also creates more litigation.

Insurance coverage disputes and disputes arising from reinsurance contracts are resolved in a number of different ways, depending on the nature of the dispute.

Disputes involving consumers will often find a solution after consideration by the Complaints Board. Even if the decision of the Complaints Boards does not have the same authority as a judgment from the court, the insurance companies will generally respect its decision.

Where the parties are considered professional (not consumer), the dispute will normally be resolved by negotiations, court proceedings or arbitration. Arbitration is particularly relevant in marine insurance, but other sectors also make use of the scheme.

Among the cases that end up in court, the outcome of the case being expected to have significance for the insurance company beyond the specific case is often a common denominator. This is often related to the understanding of insurance terms in a standardised insurance contract or terms that follow from insurance law.

Disputes between insurance companies and consumers will often find a solution after the processing of the case by the Complaints Board, whose decisions are generally respected by the insurance companies. If the decision is not complied with, the case will normally be submitted to the district court. 

That said, the majority of insurance disputes involving consumers will find their solution outside of the courts as court proceedings can be costly and time consuming for both parties. 

Third parties' right to enforcement of insurance contracts will depend on whether it is a liability insurance or another type of insurance. 

In liability insurances, the right for third parties to enforce the insurance contract is regulated in Section 7-6, paragraph 1 of the ICA. Said Section expresses the basic premise in insurance law that an injured party may freely choose to deal with the tortfeasor or the insurer responsible for the claim. Under Norwegian law, there is a general principle that direct action is allowed, and this principle may only be deviated from by contract in large commercial insurances. 

In other insurance matters, third parties' right to enforcement of the insurance contract must follow from the contractual terms in the insurance contract. Provisions where third parties are favoured under the contract will typically be common in life insurance and travel insurance. 

The concept of bad faith is a term embodied in Norwegian jurisdiction. The term applies to incidences in which a contracting party intentionally, or by gross negligence, has violated the duty of loyalty in contractual relations. 

The duty of loyalty in contractual relations is fundamental in Norwegian law and applies regardless of what follows directly from the legislation. An important obligation that follows from this principle is the duty to disclose information of importance to the other party provided the other party has reason to expect the information to be provided.

This duty is explicitly stated in Sections 8-1 and 18-1 of the ICA, according to which the insured loses their claim under an insurance agreement if they deliberately provide incorrect or incomplete information that they know or must understand may result in a wrongful payment to them from the insurer. 

Penalties for late payment of claims are regulated in Sections 8-4 and 18-4 of the ICA, according to which the insurer shall pay interest if payment has not been made within two months from when the insurer was first notified of the insurance incident. 

There are no formal requirements as to how the insurer shall be notified, and notification can be done orally or in writing. Interests can thus occur before the insurer has been presented with a formal claim.

The interest rate is decided every six months by the Norwegian Ministry of Finance to a fixed percentage of the annual interest rate, which shall correspond to the monetary key interest rate determined by the Norwegian central bank as of January 1st and July 1st in the relevant year plus at least eight percentage points. 

The ICA does not prevent the parties from agreeing to higher interest rates. 

Representations made by a broker will legally bind the insured provided there is an agreement on representation between the insured and the broker, and that the broker's dispositions (or omissions) are linked to matters that, according to general practice, are common for the broker to manage. 

In the above lies a principle of full identification between the broker and the insured. This entails that the insurer can invoke any action, or omission, the broker has made in connection with the contract, for example breach of the duty to provide information prior to or during the contractual relationship.

Delegated underwriting or claims handling authority arrangements are common in some areas of insurance. We do not consider such arrangements to give rise to specific litigated issues, save that we have seen some cases where brokers are pursued on the basis of their own (alleged) negligence outside the scope of the policy. 

This is mainly a topic under liability insurance. Insurers will generally only fund the defence of the insured if the claim, if allowed, will be recoverable under the insurance. Experience has shown that funding and control of the insureds defence is the main rule in respect of almost any claim brought under liability insurance policies in Norway.

In respect of other types of insurance, the insurer may fund the defence of the insured if this has been agreed between the insurer and insured. For example, in Norway there has been an increase in the number of providers of so-called case cost insurances, where insurance companies offer insurance against the costs of having the case tried in the courts.

Norway is expected to see an increase in professional indemnity insurance and an increased number of disputes will arise in this regard. It is also thought that the market for specialised and tailor-made insurance products will continue to grow as insurance needs are becoming more specific.

The upward trend in the cost and complexity of insurance litigation in the last few years signals that insurance companies are more willing to try their cases in court. Whether this trend is due to the untypical issues that have arisen in the wake of COVID-19 is still unclear.

With regard to the costs of trying the cases in court, developments show that these are steadily increasing. This is partly due to the fact that the parties are often represented by legal counsel. An increase in the number of insurances for legal costs offered may also explain this development, as larger and financially strong parties are generally more willing to try their case in court.

It is permitted to sell and buy so-called cost risk insurance in Norway. It is common, however, that such insurances are included in a more comprehensive insurance, for example insurances concerning purchase or sale of real estate. 

A cost risk insurance will (normally) only reduce the procedural risk for the insured by insuring them from the risk of having to bear the other parties' (and their own) legal costs. However, the insurance will not normally provide insurance against the underlying claim, which must be agreed separately.

The Norwegian Damages Indemnification Act (NDIA) gives a right of action for the insurer to recover sums from a third party causing an insured loss, with certain restrictions.

Specifically, the right of recourse corresponds to the insured's right to claim compensation from the tortfeasor when the loss/damage is covered by insurance as per Section 4-2 of the NDIA. The Section distinguishes between loss/damage caused by the tortfeasor personally, and loss/damage caused by the tortfeasor while acting in a professional or commercial context, including in relation to marine, transport, aviation, credit or guarantee insurance. If the tortfeasor acted as a private person, the damage must have been caused intentionally or by gross negligence (unless related to credit or guarantee insurance), in order for the insurer to have a right to claim recourse from the tortfeasor. In all other cases, the insurer has a general right to recourse as long as the general requirements for liability are satisfied.

The insurer's right to claim compensation from the tortfeasor is regulated in Sections 4-2 and 4-3 of the NDIA. The provisions express the general principle of recourse, according to which the person who covers another person's obligations, as a starting point, is entitled to claim a corresponding amount from the person to whom the obligation applied.

When the insurer submits their claim, this will be done in their own name. Technically, the insurer will claim compensation for the expense they covered (which should have been covered by the tortfeasor) and not compensation for the damages per se. Thus, the claim is limited to the insurance sum paid by the insurer. 

In the wake of the pandemic, there has been an increase in insurance-related litigation, especially within professional indemnity cases; eg, directors are challenged for not suspending their business earlier. 

There has also been an increase in disputes concerning insurances related to tourism and employment before the Complaints Board. 

This is especially true in the aviation industry, where the pandemic led the state to impose a number of restrictions which in turn affected the airlines. This again bore consequences for the airlines' employees, passengers and other personnel directly or indirectly connected to the industry. 

Inflation is at an all-time high in many regions of the world, and this can also be seen to impact the insurance sector. One of the more relevant effects is the rise in the cost of materials. Accordingly, the price for repairs and rebuilds is ever increasing, which raises the issue of underinsurance, as the total value of insured items and potential repairs is difficult to assert.

Russia's invasion of Ukraine and the many subsequent international sanctions implemented towards Russia have triggered the beginning of what is expected to be a number of war and sanction-related claims. In general, the scope and scale of the claims that will follow Russia's invasion of Ukraine are uncertain, and several new and challenging questions will likely be raised concerning insurance coverage.

Since April 2022, the Norwegian government has taken a more passive approach to the COVID-19  restrictions. Infection rates and hospitalisations are closely monitored and Norway maintains a high preparedness. However, most of the COVID-19 restrictions have been  lifted.

Despite this lifting of restrictions, some fear of new restrictions is likely to persist. Thus, there is reason to believe that insurance against COVID-19 and COVID-19-related events will continue to be a product in the insurance providers' portfolio in the years to come.

As Russia's invasion of Ukraine is prolonged, claims disputes are starting to reach the civil and arbitrational courts. However, as indicated at 7.1 Type and Amount of Litigation, it is still too early to see the full scope and scale of the claims that will follow.

The pandemic has affected large parts of society, including the insurance sector. A clear expression of this is the increase in insurances that are directly related to the consequences of pandemic-related events. Therefore, there has been an increase in cases related to the interpretation of so-called epidemic/pandemic insurance contracts.

To date, no profiled test cases have been tried by the Norwegian courts of insurance coverage related to Russia's invasion of Ukraine. As there are many large international insurance providers with headquarters in Norway, especially in the shipping segment, Norwegian courts will likely see test cases related to Russia's invasion of Ukraine in the near future. 

The pandemic has affected the scope of insurance cover available, mostly with the creation of a new market for insurance against COVID-19-related events. Such insurance is particularly common in commercial sectors directed at consumers, ie, concerts, travel and other arrangements.

Climate change has affected the insurance market in several ways. Increased frequency of "extreme weather", including large and sudden amounts of precipitation or prolonged drought, has meant that the premiums on fire and flood insurance have increased. Furthermore, there is an increase in the number of providers of such insurances.

The increase can be explained by the fact that there is an actual increase in such weather, but also by the fact that such weather (and associated damages) has received increased media attention. 

With regard to the insurance settlement itself, climate change has not had an effect beyond an increase in cases where the sum insured has been paid out. Legally, therefore, extreme weather does not pose a challenge.

Due to increasing temperatures in the northern hemisphere, the use of the Northern Sea Route, also as a possible alternative cost-effective transnational trade route, poses issues in terms of underwriting insurance risks. The year of 2021 saw record tons of cargo transported along the Northern Sea Route. This development has, however, proven difficult for insurance companies to adapt to, especially due to difficulties in risk modelling. The very limited data to draw from and the few but alerting cases demonstrating the severe economic implications of accidents and inconveniences in Arctic sailing are, among others, issues insurance companies have to account for.

The Norwegian Supreme Court recently rendered a decision which confirms that the underlying tort action between a foreign tortfeasor can be joined in the proceedings with the direct action against the tortfeasor's Norwegian liability insurer.

As stated in 4.1 Implied Terms, the implementation of the EU Insurance Distribution Directive and Solvency II Directive have also led to the passing of a new Insurance Distribution Act and extensive changes in the Insurance Contracts Act. The changes in the Insurance Contracts Act are mostly structural, but a number of new restrictions are also introduced. These changes are mostly for the benefit of consumer insurance, but there are also implemented changes that will affect professional-to-professional insurance relations. In particular, pre-contractual requirements for the insurer have become stricter in terms of the duty to guide and inform customers before underwriting. This has also led to a clearer placement of the burden of proof on the insurer for the fulfilment of pre-contractual duties.

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Kvale Advokatfirma DA is a leading commercial law firm that has provided assistance to Norwegian and international businesses since 1988. The firm is particularly renowned for assisting some of Norway's largest companies with their most important and complicated cases. Kvale´s lawyers have extensive experience in negotiations, dispute cases before the ordinary courts and arbitration. With a broad understanding of the insurance industry, the firm's lawyers provide assistance within the entire specialist field of insurance law and have particular experience in professional liability insurance (directors’ liability, lawyers’ professional liability and other adviser liability); construction risk; business interruption insurance; and maritime/industrial insurance.