A recent judgment of the Belgian Supreme Court of 15 January 2026 is important reading for insurers and brokers. It clarifies when an insurer may rely on the exclusion for a loss intentionally caused by the insured, and it may make the exclusion easier to apply in cases where the insured's primary motive was not to cause insured damage, but the insured damage was nevertheless the direct result of the insured's deliberate conduct.
The case concerned a tenant who deliberately set fire to the rented premises, stating that he had done so in order to commit suicide. The fire insurer, having indemnified the owner, sought recovery and the tenant's liability insurer resisted cover on the basis of wilful intent. The Ghent Court of Appeal accepted that the fire had been started intentionally, but held that the insured had not intended to cause damage flowing from a risk covered by the policy; his intended "damage" was his own death, not property damage. On that basis, the Court of Appeal found that the intentional loss exclusion did not apply.
The Supreme Court quashed that reasoning. It held that, for the insurer to be released from cover, it is necessary but sufficient that the insured, by an act or omission, voluntarily and consciously intended to cause damage. The fact that the insured did not intend the precise nature or extent of the loss is irrelevant. Crucially, the Court added that the fact that the insured set fire to the premises with the intention of committing suicide does not prevent the loss from being intentionally caused.
This judgment appears to mark a partial recalibration of the Court's recent case law. Earlier decisions, particularly in 2017 and 2022, had emphasised that the intentional fault must involve an intention to cause damage resulting from the materialisation of a risk covered by the policy, and that cover could not be refused where the covered damage was distinct from the damage intended by the insured. The 2026 judgment does not abandon the requirement of intended damage altogether, but it rejects an overly narrow approach under which the insured's subjective motive could neutralise the exclusion whenever the intended personal objective differed from the insured loss.
For insurers and brokers, the practical message is that the analysis should focus less on the insured's broader motive and more on whether the insured deliberately engaged in conduct that necessarily or foreseeably involved causing damage of the relevant kind. That said, the judgment should still be applied with care. It does not turn every deliberate risk-taking act into an intentional loss. The distinction between intending damage and merely creating a risk of damage remains important, and coverage disputes will continue to turn heavily on the evidence of the insured's state of mind and the causal link between the intended act and the insured loss.
Practical takeaways
- Underwriting: exclusions and policy wordings should be reviewed to ensure that intentional acts, deliberate damage and related consequences are addressed clearly, consistently with article 62 of the Belgian Insurance Act.
- Claims handling: claims teams should investigate not only what the insured did, but also whether the evidence supports a voluntary and conscious intention to cause damage, even if the insured's principal motive was different.
- Coverage disputes: insurers may have stronger arguments where the insured deliberately caused the physical event giving rise to the insured loss, such as fire, even if the insured argues that the ultimate purpose was self-harm or another non-insured objective.
- Broker advice: brokers should alert clients that intentional conduct may jeopardise cover even where the insured did not intend the full extent, consequences or legal characterisation of the resulting loss.
- Evidence remains key: the decision is helpful for insurers, but it is not a blanket rule. Each case will require a careful assessment of the facts, the insured's intention and the relationship between the intended damage and the covered risk.
For further insights on this topic, or on insurance law in Belgium more broadly, please feel free to contact our Belgian CMS Insurance team.
Authors:
Kim van Zummeren, CMS
