Il “ciclista previdente” che si scontrò due volte: con un'auto e col principio indennitario applicato all'assicurazione infortuni

This comment to Trib. Chieti, sez. dist. Ortona, sentenza 8 novembre 2017, n. 225, judge F. TURCO, proposes to clarify, deepen and develop some issues at the border of civil law, inspired by an interesting judgment. First of all, the complex attribution of responsibility based on art. 2054 of the Codice Civile, and in particular the profiles of fault and presumption of co-responsibility of the drivers of vehicles colliding. The analysis developed in this paper suggests that the judge should openly take into account the possible diversity of the categories of vehicles coming to collision (e.g. bicycle and car), and draw the appropriate consequences. The paper then analyses various themes arising from the delicate quantification of compensation. It traces the evolution of non-pecuniary damage in Italian doctrine and jurisprudence, and problematizes the value of the Milan Tables and the personalization of damage. Next a thoughtful discussion of the complex theme of accident insurance is provided. The historical development of this contract is considered, in order to focus on the more controversial issue emerging from the judgement: the application of an Italian version of the prohibition of the collateral rule if a tort-based compensation is assessed and quantified when the victim has already perceived a first party insurance indemnification for the personal injury suffered in consequence of the event. The paper stresses the lack of dialogue between the judiciary and the Parliament on this crucial issue; and considers the so-called “indemnity principle”, outlining a possible contrast of this hybrid form of iuris and legis analogy with art. 14 of the so-called “Preleggi” and with the European attempt to standardize national legislation in the insurance field. The paper ends by tangentially tackling the issue of the loss of the specific working capacity by a member of a partnership.