Insurance

Contracted body shops, only partial stop by the Supreme Court

Latest ordinance does not declare choice of repairer clauses unfair

by Maurizio Hazan

29 April 2026

3' min read

Translated by AI

Versione italiana

3' min read

Translated by AI

Versione italiana

Suddenly, the question of the validity/vulnerability of clauses that, inserted in policies covering damage to vehicles (not from motor TPL), provide for particular limits of indemnity (uncovered amounts or deductibles) if the insured uses a body repair shop not 'affiliated' with the insurance company for the repair.

The Supreme Court of Cassation, with an ordinance - no. 10797 of 23 April - that was given wide eco media coverage, according to some, sanctioned the unfairness of those clauses, which had been widespread for some time. In reality, it is a ruling that, while upholding a consumer's appeal, does not take any precise position.

In fact, it criticises in general terms the work of the Court of Merit, which did not subject to an adequate critical examination a clause that imposed on the injured party an increase in the "value of the overdraft" in the event that the repair was carried out outside the circuit of the body shops affiliated with the company.

This clause, which, according to the plaintiff, would have the vice of "limiting the contractual freedom of the weaker contracting party in relations with third parties, restricting the faculty of free choice on the market of the operator to whom to turn," for the Supreme Court would have to be examined not in isolation, but in the more general context of the entire contractual regulation. Verifying whether, in concrete terms, it could give rise to the 'significant imbalance of the rights and obligations arising from the contract' that Article 33 of the Consumer Code requires for a clause to be vexatious.

Moreover, it should have been considered whether such an agreement had been the subject of a specific negotiation and whether, in the absence thereof, it could be abusive.

In fact, the contested judgment seemed to have made (correct) application of what, at the time of its publication, appeared to be established principles, as the expression of a jurisprudence of legitimacy that had excluded, in a clear manner, the abusiveness of that type of clause. A sunny example is Judgment No. 33402 of 19 December 2024, according to which:

- it must be ruled out that the (increased) "overdraft" clause, in the case of repair in a non-contracted body shop, restricts contractual freedom with third parties;

- the extent of the indemnity is left to the parties and there is no hierarchy of validity between full value insurance and underinsurance or insurance with compulsory overdraft;

- providing for an overdraft for "non-contracted" repairs does not, therefore, constitute an "imbalance" in the contract, but a free covenant: rather than a disincentive to turn to repairers trusted by the insured, it should be regarded as an incentive to choose those trusted by the insurer.

- the "proof of the nines" of the foregoing would be given by the fact that if "the contract had provided for an overdraft for any claim and without distinction whatsoever, whatever the repairer chosen by the insured, such a clause would have delimited the object of the contract, and no one could have suspected its nullity. It is therefore logically untenable that a contractual covenant, valid when considered in itself, can become invalid only because it is flanked by another covenant which, far from reducing the insured's rights, on the contrary expands them".

The order of 23 April marks a break with this orientation. But, while opening up to possible different reasoning, it is not enough to deem it per se outdated. It is a pronouncement that merely preaches more care in the overall reading of the policy, rather than the individual clause. Which seems to be agreeable: in practice, direct repair agreements with contracted networks are very different from each other and may be more or less balanced as a whole.