The Flemish Government (one of the 3 Regions in Belgium) aims to make Flanders asbestos-safe by 2040.
Since 2022, an asbestos certificate has been mandatory for the sale of properties built before 2001. To obtain such a certificate, an asbestos inventory must first be conducted by a certified asbestos expert.
But are these experts required to be insured? How long can they be held liable? Are there hidden issues? This blog sheds new light on these questions.
Since 2022, an asbestos certificate issued by OVAM (the Public Waste Agency) has been mandatory when purchasing buildings. OVAM only issues such certificates based on an asbestos inventory drawn up by a certified asbestos expert (a professional who has completed the required training, passed exams, and meets the necessary legal requirements).
Mandatory insurance
Asbestos experts can be held liable for their mistakes. Therefore, professional liability insurance is legally required for certified asbestos experts. This is not only a condition for certification: since 2019, all intellectual professions in the construction sector must have professional liability insurance.
Asbestos experts must remain insured even after ceasing their activities. Specifically, they must be covered by their professional liability insurance for up to three years after stopping their operations.
What does the insurance cover?
The professional liability insurance covers all claims made during the term of the insurance contract and related to damages that occurred during the insured period.
Even up to 36 months after the insurance ends, damage cases may still be covered by this insurance.
There are two specific situations in which the insurance provides coverage even after the contract has ended:
- Damage that occurred during the term of the professional liability insurance, provided the risk is not covered by another insurance company
- Acts or facts that may give rise to damage that occurred during the duration of the professional liability insurance and were reported to the insurance company.
Such insurance generally only covers mistakes (resulting in damage) made toward third parties (e.g., the buyer of a building).
A first issue arises concerning the expert's liability towards their client (e.g., the seller who requested the certificate and where the expert made an incorrect assessment). This relationship is contractual in nature, and damage is usually not covered by professional liability insurance. The statute of limitations is also different from that of non-contractual liability.
Moreover, contractual exclusions in insurance policies must be carefully reviewed: it is not uncommon to see exclusions of coverage if the expert issues an "asbestos-free" certificate, and asbestos is later found to be present.
Statue of limitations
In principle, all legal claims for damages due to non-contractual liability expire after five years.
This period starts the day after the injured party is informed of the damage (or that the damage has worsened) and who is responsible for it.
In any case, these claims expire after twenty years. For example:
- Thomas learns today about a damage case that occurred yesterday: Thomas' claim expires in five years
- Beatrice learns today about a damage case that occurred 13 years ago: Beatrice's claim expires in five years
- Maxime learns today about a damage case that occurred 21 years ago: Maxime's claim is expired (as it was over twenty years ago).
Contractual claims generally expire after ten years.
Challenges and solutions
The various forms of liability that an asbestos expert may incur, depending on who files the claim (the contracting party or a third party), when the claim is made (statutes of limitations), and what mistake or damage is targeted (intellectual mistake, material error, damage, etc.), make the question of sufficient insurance coverage for all these situations more complex than a simple reference to the asbestos experts' code of ethics, which (under Article 4) simply states:
"Each member must have a valid professional liability insurance agreement. The insurance agreement must provide sufficient coverage depending on the nature of the tasks performed by the member."
A precise drafting of the contract with the client, with careful attention to permissible contractual exclusions or limitations of liability, the overlap of liability forms (contractual/non-contractual) and their consequences, as well as the proof of fault and damage, is of utmost importance.
The new Book 6 of the Civil Code, which comes into effect next year, offers several possibilities in this area that did not previously exist, but they must be explicitly included in the text of the contract as they are usually supplemental law.
In terms of insurance coverage, adequate review and guidance are also necessary to avoid gaps (or double coverage) in the scope of coverage, as mentioned above, and to ensure proper legal assistance.
Vanbelle Law Boutique is ready to provide you with the right tailor-made solution.
