According to Art. 2943 It. Civil Code, which applies also to marine insurance, the limitation period in both insurance and reinsurance contracts can be interrupted by a letter of demand or by a writ of summons, petition for arrest or distraint or request submitted before trial.
A writ of summons will suspend the limitation period even if the Court before which the proceedings is put forth has no jurisdiction.
Accordingly, whenever the contract wording provides for arbitration, the appointment of an arbitrator, as provided for under the relevant arbitration clause or arbitral agreement, will interrupt the limitation period (SEE ART. 2945 CIVIL CODE).
The acknowledgement of the right in dispute by the debtor (see Art. 2944 3 It. Civil Code) will also interrupt the limitation period.
In general, the limitation period is interrupted by any act putting the debtor on notice of a claim (mora debendi). According to Art. 1218 of the Civil Code, a notice of claim purporting to interrupt the limitation period must be in writing.
Art. 2945 of the Civil Code provides that from the date of the interruption a new limitation period will again commence to run.
Standstill or tolling agreements do not have any effect as a matter of Italian law because the prescrizione' regime is of public policy and cannot be modified by agreement.
The only exception to that general rule as established under Art. 2936 It. Civil Code [1] is made to any agreement in matter of property or liability insurance making the recovery against the insurer actionable only after the completion of certain time consuming preliminary steps on the part of the assured [2].
A clause deferring the commencement of the limitation period until such requirements have been satisfied is valid in the light of Art. 2935 It. Civil Code [3].
If, under the terms of an insurance contract, or by a separate agreement, the parties agree to refer the assessment of the quantum of the claim to expert(s), the ordinary 2 YEAR limitation period remains in force and it will be for the claimant to interrupt it by an appropriate letter of demand in writing.
If the assessment of the quantum is referred to an Arbitrator or to a panel of Arbitrators the running of the limitation period will be suspended by operation of law as soon as the party in interest has accomplished the various arbitral technicalities. The limitation period will start again once the award of arbitration has become final and without appeal.
Art 2945 of the Civil Code states (last paragraph) that "insofar as arbitration is concerned, the period of limitation stops running as soon as the invitation to arbitrate is served until the award or arbitration is rendered or, if it is appealed, the judgment deciding the appeal is covered by res judicata".
Criminal proceedings commenced to investigate the facts surrounding the insured event normally will not suspend the running of the limitation period. However if the policy provides, as a condition precedent to the right to recover thereunder, that, where the circumstances of the loss are suspicious and may have involved wrongdoing by the insured, no claim can be made pending the outcome of the criminal proceedings, the 2 years limitation period will be suspended until the insured is discharged [4] in which case a new time – limitation period will start.
[1] Art. 2936 It. Civil Code (providing for the limitation period to stand without modification) prescribes that "Any covenant purporting to modify the legal regime of the "prescrizione" is a nullity".
[2] Cass. 27.III.1979 n. 1776.
[3] Art. 2935 It. Civil Code – heading "starting of prescrizione" – dictates: "Prescrizione starts to run from the day the right can be enforced".
[4] Cass. 2.VII.1998 n. 6458 ; Cass. 10.IX.1999 n. 9668 applying the general principle under Art. 2935 It. Civil Code by virtue of which time bar does not count as long as the right in dispute cannot be exercised.
