JUDGMENT OF THE COURT OF MILAN N. 9989 2025 – NRG 00007243 2022 FILING OF MINUTES 23 12 2025 PUBLICATION 23 12 2025
Table of Contents
Damage insurance.
Conclusions of the parties
(as per the summons)
‘On the merits: ascertain and declare, for the reasons set out in the narrative, that the road accident which occurred on 22.7.2019 occurred due to the exclusive responsibility of the gentleman and, as a result, condemn the to pay in favor of the amount paid by the same in favor of the gentleman pursuant to the art. 141, paragraph IV, of the Insurance Code, and of the amount paid by the same in favor of , pursuant to art. 1916 of the Civil Code, in an amount thus quantified, including the extrajudicial legal costs referred to in the narrative, of €158,310.06=, or in that different greater or lesser amount that will be due, in addition to the monetary revaluation and legal interest from the day of the event to the actual balance.
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
COURT OF MILAN X CIVIL SECTION
The Court, in the person of NOTARY_ATTORNEYpronounced the following SENTENCE
in the civil case registered at no. RDOCUMENT_NUMBER promoted by:
(CF), in the person of the legal representative pro tempore, with the patronage ofNOTARY_ATTORNEYelectively domiciled in his studio in Trento, ADDRESS; P.
ACTRESS
against
C.F.
), in person
P.
of the legal representative pro tempore, with the patronage ofNOTARY_ATTORNEY SURNAME and of theNOTARY_ATTORNEYelectively domiciled in their studio in Milan, ADDRESS;
(C.F. );
DEFENDANTS
Object
With victory of expenses, fees and legal fees and flat-rate reimbursement of general expenses in the amount of 15% ‘.
‘ PRELIMINARYLY, ON THE SUBSTANCE, ascertain and declare the lack of passive legitimacy with respect to the request explained directly by the plaintiff and, as a result, reject the request; COMPANY_REASON
IN THE MAIN SUBSTANCE, reject, for all the reasons set out in the narrative, the claim proposed by the plaintiff against the defendant and, as a result, acquit the defendant in the best possible way;
IN ADDRESSin the denied and not believed hypothesis of acceptance, even partial, of the plaintiff’s request, limit the amount of compensation to the sums ascertained during the course of the case.
With victory of the litigation costs.
Concise exposition of the factual and legal reasons for the decision
With a writ of summons duly notified, the heirs of and the (hereinafter, expounding: COMPANY_REASON
-that on 7/22/2019, around 4.00 pm, at mileage marker 43+000 of the motorway ADDRESSnear the municipality of Alice Castello (direction of travel towards Milan), a road accident occurred caused by the Opel Astra vehicle, registered VEHICLE_PLATEdriven by the owner and registered in Bulgaria;
that the Ford Transit vehicle with license plate was involved in the accident VEHICLE_PLATEowned by and insured by the company on which it was travelling, as transported,
that the foreign vehicle had violently hit the Ford Transit vehicle;
that the responsibility for causing the accident had to be attributed exclusively to the driving conduct of the driver of the foreign vehicle;
who, following the accident, had died, while he had suffered serious injuries;
to have paid the sum of 119,362.00 euros in favor of and to have paid the amount of 18,948.06 euros in favor of following the subrogation action carried out by the latter in relation to the accident suffered by
– to have sent the normal request for compensation for these sums, pursuant to art. 141, paragraph 4, Legislative Decree 209/2005; COMPANY_REASON
-that the request had been rejected by COMPANY_REASON
to be entitled to reimbursement of extrajudicial legal expenses for the negotiations for an amicable settlement of the matter, to be quantified in euro 20,000.00.
Therefore, he asked her to order the payment of the sum of €158,310.06, plus interest and revaluation. COMPANY_REASON
With a response filed on 28/9/2022, he appeared in court and stated: COMPANY_REASON
-that the company was not entitled to carry out direct action against the person who lacked passive legitimacy; COMPANY_REASON
that the report of the Traffic Police, which intervened following the accident, did not peacefully attribute responsibility to the (deceased) driver of the foreign vehicle;
that the driver of the vehicle insured by the plaintiff company had been fined for having suddenly stopped driving at the motorway junction;
that the amounts requested in the summons were the result of a biased medico-legal evaluation, not enforceable against the COMPANY_REASON
-that it was not known on what basis the amount of 18,948.06 euros had been paid;
that the costs of extrajudicial legal assistance (provided by another company) were not due, for which there was no proof of disbursement.
With an order dated 30/3/2023 the contumacy of the heirs was declared and the case was postponed for the clarification of the conclusions.
At the hearing on 14/3/2024 the parties specified the conclusions as per the minutes and the case was placed for decision with the assignment of terms pursuant to art. 190 cpc
With an order dated 8/8/2025 the case was put back on the register and the deadline for filing the specific index of all the documents that made up the doc was assigned. 4 attached to the summons, specifying for each the page of the single PDF file produced.
Following this documentary integration, with an order dated 10/21/2025 the case was postponed for clarification of the conclusions, discussion and decision pursuant to art. 281sexies cpc
At the hearing on 4/12/2025, the parties specified their conclusions as per the minutes and, following the oral discussion, the case was put to a decision.
*
This proceeding concerns the request for compensation pursuant to art. 141, paragraph 4, Legislative Decree 209/2005, formulated against the defendant by the plaintiff as insurance company of the Ford Transit vehicle, registered VEHICLE_PLATEon which he was travelling, as transported, for the sums paid by the plaintiff company in favor of in relation to the road accident which occurred on 22/7/2019 between the aforementioned vehicle and the Opel Astra vehicle, registered VEHICLE_PLATE and registered in Bulgaria, driven by the owner (who died following the accident). COMPANY_REASON
As a preliminary matter, the defendant objected that the plaintiff company was not entitled to take direct action against him. COMPANY_REASON
This exception is founded, for the following reasons (already set out by Milan Trib. 6852/2022 and summarized below, as shared by this NOTARY_ATTORNEY).
First of all, it should be remembered that, based on articles. 125-126 Legislative Decree 209/2005, with regard to actions for compensation for damage caused by the circulation of vehicles registered abroad, the defendant
domiciliary of the insured, of the civilly liable party and of their insurance company and is entitled to take legal action in the name and on behalf of foreign insurance companies adhering to the European and international conventions, being able to formulate against him the request for direct condemnation pursuant to art. 145 Legislative Decree 209/2005, in the following cases: COMPANY_REASON
when the driver of the responsible foreign vehicle is in possession of an international insurance certificate issued byCOMPANY_REASON national insurance company and accepted by art. 125, paragraph 2, letter. b), Legislative Decree 209/2005); COMPANY_REASON
when the responsible vehicle has been registered in a country adhering to the system which has removed the obligation to check the existence of the vehicle’s international insurance, therefore the simple license plate of the vehicle in one of the adhering countries is valid to automatically consider it insured (art. 125, paragraph 3, letter b), Legislative Decree 209/2005);
when the vehicle has been insured with an international certificate called ‘green card’ (art. 125, paragraph 3, letter c), Legislative Decree 209/2005);
when the vehicle has been registered in a third country, with which the insurance obligation is considered automatically fulfilled as a result of agreements stipulated between the and the corresponding foreign offices and the European Union has recognized such agreements (art. 125, paragraph 4, Legislative Decree 209/2005). COMPANY_REASON
Having said this, it is necessary to understand whether the articles. 125-126 of Legislative Decree 209/2005 limit the defendant’s right to take legal action only to actions brought by the ‘injured’ parties, as objected by the defendant COMPANY_REASON
Well, based on the art. 126, paragraph 2, letter. c), Legislative Decree 209/2005, the defendant is entitled to appear in court, in the cases referred to in paragraph 2, letter b), in paragraph 3 and in paragraph 4 of the art. 125, in the name and on behalf of the member companies, in the compensation actions that those injured by the circulation of motor vehicles and boats registered or registered abroad can exercise directly against it in accordance with the provisions of articles 145, paragraph 1, 146 and 147. The provisions regulating direct action against the insurance company of the civilly liable person in accordance with the provisions of article 144 also apply against the Italian Central Office. COMPANY_REASON
Therefore, the provision just mentioned provides for direct action against the defendant in favor of the injured parties only. COMPANY_REASON
The literal data of the provision in question, which links the passive legitimacy of the defendant only to the actions that ‘those damaged by the circulation in Italy of motor vehicles and boats registered or registered abroad can exercise’, is in line with the provisions of the European sources regulating road traffic. COMPANY_REASON
In particular, the directive of the European Parliament and of the Council n. 2000/26/EC of 16/5/2000, (concerning the approximation of the laws of the Member States regarding insurance against civil liability resulting from the use of motor vehicles) provides in art. 3 (titled ‘direct action’) that ‘each Member State shall ensure that the persons referred to in Article 1 who are injured by accidents under that provision have a right of direct action against the insurance undertaking covering the civil liability of the responsible person’.
To define the notion of ‘injured person’, the aforementioned directive refers to Council Directive no. 72/166/EEC of 24/4/1972, according to which ‘every person entitled to repair of damage caused by vehicles’ is considered an ‘injured person’, therefore it must be excluded that an insurance company who has suffered damage only indirectly can be considered an ‘injured person’, due to the fact of having paid insurance benefits to the injured person.
These considerations are supported by a teleological interpretation of the national and community rules – which regulate the role and passive legitimacy of the defendant if we consider that the main purpose of the creation of within the participating countries (with a mechanism that provides for the compensation of damages by the of the accident, in its capacity as ‘Managing Office’, with subsequent reimbursement of the sums paid by the insurer of the vehicle that caused the accident) is the protection of people injured as a consequence of accidents caused by vehicles registered abroad, who can thus obtain compensation for damage more quickly, in accordance with the law of the State in which the accident occurred. COMPANY_REASON
In the present case, as mentioned, the plaintiff company proposed a request for compensation against the defendant pursuant to art. 141, paragraph 4, Legislative Decree 209/2005, for the sums paid in favor of (as a third party transported on a vehicle insured by the plaintiff company) in relation to the road accident which occurred on 22/7/2019, which involved the Opel Astra vehicle, registered VEHICLE_PLATE VEHICLE_PLATE registered in Bulgaria, driven by the owner (who died following the accident). COMPANY_REASON
It is true that, as a rule, the insurance company of the vehicle on which the damaged person was traveling, which has made the payment in favor of the damaged person, is subrogated in the rights of the injured party (with consequent succession in particular rights) to the insurance company of the civilly liable person.
However, the defendant is not the insurance company of the civilly liable party, but is only the passively legitimized party (in the cases mentioned above, referred to in articles 125-126 of Legislative Decree 209/2005) with respect to the actions proposed by the ‘injured’ parties, i.e. by people who have suffered damage due to the circulation of vehicles registered abroad. COMPANY_REASON
In other words, if it is true that the plaintiff company has the right to exercise the compensation action pursuant to art. 141, paragraph 4, Legislative Decree 209/2005, it must however be noted that the plaintiff company does not have the right to exercise it against the defendant whose passive legitimacy is limited by the articles. 125-126 of Legislative Decree 208/2005 only to the actions proposed by the ‘injured’ parties (consistently with the ‘ratio’ of national and community provisions, inspired by a need to strengthen the protection of people injured as a result of accidents caused by vehicles registered abroad). COMPANY_REASON
Moreover, it cannot be considered that the articles. 125-126 of Legislative Decree 209/2005 are also referable to the position of those who (like the plaintiff company) have suffered damage only indirectly, for having paid sums to the injured person as compensation for the damage.
And in fact, such an extension of the legitimacy to act against the defendant would conflict both with the literal interpretation of the art. 126 Legislative Decree 209/2005, which expressly refers to ‘damaged’ subjects, both with the criterion of interpretation compliant with supranational sources, given that the directive on European vehicle insurance, from which the Italian legislation derives, expressly clarifies that by injured party we must understand ‘any COMPANY_REASON
person entitled to compensation for damage caused by vehicles’ (see art. 1, point 2, of Council Directive no. 72/166/EEC of 24/4/1972).
In light of the above, the lack of active legitimacy of the plaintiff company must therefore be noted, which acted in subrogation with respect to the procedural position of the injured party, in the face of an express provision of law which reserves only to the injured parties the possibility of bringing a direct action for compensation for damage against the defendant COMPANY_REASON
In this regard, it is noted that the ‘legitimatio ad causam’, in its dual aspect of legitimation to act and to contradict, consists in the active and passive ownership of the action and arises from the configurable correlation between the subjects and the legal relationship deduced in the application, on the basis of which the parties are identified between which the ruling of the NOTARY_ATTORNEYcoming to recognize it for the sole fact of the affirmation of the claim, so that the active legitimizer is the one who claims to be the owner of the right and the passive legitimizer is the one in respect of whom the ownership of the right is affirmed. Otherwise, the question relating to the real and effective active or passive ownership of the substantial relationship in question and to the concrete identification of the subjects of this relationship does not concern the legitimacy, but rather the merit of the dispute (see, in this sense, Cass. Sez. Un. 2951/2016).
Having clarified this, in this case the person who proposed the request (i.e. the plaintiff company) does not coincide with the person who, according to the law regulating the case, is the active holder of the claim (i.e. the person injured as a result of accidents caused by vehicles registered abroad), with the consequence that the request must be declared inadmissible as it cannot even be hypothetically accepted.
In conclusion, for the reasons stated so far, the inadmissibility of the request proposed by the plaintiff company must be declared, given the lack of active legitimacy.
Based on the principle of losing the case (art. 91 cpc), the defendant’s procedural costs (paid in the amount indicated in the provisions, taking into account the nature and value of the dispute, as well as the procedural activity carried out) must be borne by the plaintiff company. COMPANY_REASON
P.Q.M.
the Court, definitively ruling in the case registered at no. 7243/2022 RG, any other contrary request or exception being disregarded, hereby rules:
declares the inadmissibility of the application proposed by
condemns it
to the payment, in favor of the
of the procedural costs, which is settled in euros 10,000.00 for professional fees, plus a flat-rate reimbursement of 15%, VAT and CPA if due, as per law.
Thus decided in Milan, 23 December 2025.
Il NOTARY_ATTORNEY
NOTARY_ATTORNEY. NAME SURNAME