Who pays the counterparty lawyer?

Everyone knows that, in the event of a dispute before the court, the loser pays the counterparty lawyer. And this - called "principle of losing" - should reassure those who, having suffered damage, is forced to take legal action to obtain justice: indeed, everything that he anticipated in terms of the taxes should be refunded to the outcome of the judgment.
But what if the dispute is referred to before the cause? The typical case is just what in insurance matters where, as a result of a traffic accident, not just the simple letter to obtain compensation, but are required a series of steps that, at times, require a certain "stimulus" to be able to channel on the right way of compensation.

Consider, for example, to the respect of limitation periods (two years from the left) and, therefore, the need to issue a warning - written "as it should be" - to prevent the law "vanish" forever. Then think of the right advice on the evidence to be provided to the insurer to prove the damage suffered, including the possibility of a coroner appraiser. Just think, last but not least, the various contacts with the liquidator and the usual negotiations - a real bargain - on the amount of damage. In short, for all this it is best to make use of someone who has experience, especially if he has to pay the insurance and not the client from his own pocket.

The insurance, therefore, can not lift an apology of sorts: it also has to reimburse legal fees to the injured who accepts his offer under the direct compensation procedure: one can not deny the fact repeatability on the mere ground that the accident It has been called out of court and the lawyer's assistance is the result of a choice of the victim of the accident. The company will still have to take charge of the remuneration of the professional when the accident between vehicles has nevertheless placed legal problems and the victim has not received adequate support from his insurer.

The Court denies the interpretation of the law [2] that we should exclude the reimbursement of legal fees just because it was the injured to call lawyer for help in the phase out of court: such a reading of the provision is in conflict with the law the defense provided by our Constitution. This interpretation, however, is not new: in the past the Supreme judges had said [3] that the administrative rule should not be applied [2] (in contrast to the constitution) that "in the event that the sum offered by 'insurance undertaking is accepted by the injured party, the amounts paid are not due remuneration for the advice or professional assistance of which has benefited from the damaged different from the coroner for personal injury ".


I doubt the constitutionality of this provision had been raised before the Constitutional Court, but have not been examined by this, since the case of administrative rule, on which the Court has no jurisdiction.

[1] Cass. sent. n. 3266/2016 of 02.19.2016.
[2] Art. 9 of Presidential Decree 254/06.
[3] Cass. sent. n. 11154/2015.
[4] C. Cost. Sent. n. 192/2010.