2.5 Indirect liability insurance and the relationship between the assured and the co-insured
The question here is what effect the indirect liability insurance has on the underlying liability claim between the assured and the co-insured. Liability insurance is a means to finance liability against a third party, but the concept of liability insurance does not enforce the liable party to use this insurance. Neither does the concept of co-insurance regulate the relationship between the co-insured and the assured. Except for cases regulated by the provision in the tort act on channelling of claims to the casualty insurer,(1) Tort act § 4-2 does not apply to damage caused by professional tort feasors, cf. no 1 letter b. the injured party is free to raise the claim against the liable party instead of claiming his insurer. The starting point for liability in commercial activity is therefore that the injured party may claim the liable party and is not obliged to use his insurance.
The Commentary to the NP chapter 8 has the following remark on this issue under “General”:(2)Chapter 8 - NordicPlan to Cl. 8-2. See also Wilhelmsen/Bull p. 229, Bull 2008 p. 539, Bull p. 484, 487.
If the insurer has covered the loss to the assured, the status as co-insured would protect the third party against a possible subrogation claim from the insurer. Similarly, if the assured should elect to bring action against the third party instead of claiming under the insurance, the co-insured third party would be able to avail himself of the insurance cover. The central idea behind both situations is that the loss, damage or claim should rest with the insurer according to the insurance conditions, without him being able to seek recovery from or deny cover to the co-insured third party. In other words; the “protection” that is relevant differs from a co-insured’s liability interest because it is protection as between co-insureds based on some form of underlying contractual relationship, which in turn is recognised and accepted by the insurer.
From this it can be deduced that i) the assured may elect to raise the claim against the co-insured third party and ii) if so, the co-insured “would be able to” avail himself of the insurance cover. This means that neither of the parties must use the insurance cover. Normally, they will of course claim the damage from the insurer, but they are free to raise a claim against a party that is not co-insured, cf. below.