Dommages-Ouvrage Insurer Refusal: What Sanction Applies?

If a French dommages-ouvrage insurer (France's mandatory property-damage insurance, taken out by a construction project owner before work begins, that pre-finances repairs to defects covered by the ten-year garantie décennale without waiting for a court to rule on builders' liability) turns down a claim without an expert assessment and without the legally required notice, is that refusal left unpunished? No — but France's Cour de cassation (Court of Cassation) confirmed on 28 May 2026, in a decision published in its official Bulletin, that the only available sanctions are those set out in article L.242-1 of the French Insurance Code, never an ordinary breach-of-contract claim against the insurer. This article explains French law; it does not describe an equivalent scheme outside France.

The essentials

• Article L.242-1 of the French Insurance Code gives the dommages-ouvrage insurer 60 days to notify its decision on whether cover applies, then 90 days to present a compensation offer (Cour de cassation, decision of 28 May 2026, No. 24-10.463, published in the Bulletin).
• The Cour de cassation confirmed these sanctions are exhaustive: a breach by the insurer cannot be pursued under ordinary contractual liability (former article 1147 of the Code civil, now article 1231-1).
• If the insurer misses these deadlines or makes a clearly inadequate offer, the policyholder may commission the repair work itself, and the compensation owed is automatically increased by interest equal to twice the statutory legal interest rate.
• Annex II of article A.243-1 of the Insurance Code requires the insurer's refusal letter to reproduce, in a visible way, the notice informing the policyholder of the right to request an expert.
• The ruling confirms a 2007 precedent (Cour de cassation, 3rd civil chamber, 7 March 2007, No. 05-20.485, Bulletin 2007, III, No. 32) and consolidates the exclusivity of this special regime across dommages-ouvrage disputes.

What does article L.242-1 of the Insurance Code require from the insurer?

From the moment a claim is filed, article L.242-1 sets a strict timeline for the dommages-ouvrage insurer: 60 days to notify its decision on whether cover applies in principle, then, if it accepts, 90 days to present a compensation offer covering the repair works.

This mechanism, created by law No. 78-12 of 4 January 1978 (the "loi Spinetta"), operates independently of any inquiry into which builder is at fault — it is a pre-financing scheme, not compensation conditional on litigation. Annex II of article A.243-1 sets out the formalities the insurer must follow, in particular when it chooses not to commission an expert assessment: in that case it must notify its offer or refusal within 15 days of the claim being deemed complete, and its letter must visibly reproduce the notice that the policyholder may, if it disputes the refusal, request that an expert be appointed.

What happens when the insurer refuses cover without an expert assessment or the required notice?

That is exactly what the Cour de cassation ruled on 28 May 2026 (No. 24-10.463, published in the Bulletin, ECLI:FR:CCASS:2026:C300320). Project owners who had bought an off-plan house in 2003 reported cracks in 2012, then again in 2016. The dommages-ouvrage insurer refused cover twice, without a prior expert assessment and without reproducing, in its letters, the notice informing the policyholder of the right to request an expert.

The policyholders sued the insurer not under article L.242-1, but under ordinary contractual liability (former article 1147 of the Code civil), arguing these failures amounted to a separate fault, compensable independently of the special regime. The Paris Court of Appeal dismissed that claim on 15 November 2023. The Cour de cassation upheld the dismissal.

Can a project owner sue the insurer under ordinary contractual liability instead?

No, the Cour de cassation ruled. Article L.242-1 of the Insurance Code and Annex II of article A.243-1 — both matters of public policy that override ordinary law — exhaustively set out the sanctions applicable to any breach by the dommages-ouvrage insurer. As a result, a refusal notified without sufficient investigation and without the required notice cannot give rise to compensation under ordinary contractual liability.

In practice, the Court refused to open any bridge between the special dommages-ouvrage regime and ordinary contractual liability law. A project owner cannot turn a procedural failure by the insurer — no expert assessment, missing notice — into a stand-alone damages claim under article 1231-1 of the Code civil. The ruling confirms a 2007 precedent (Cour de cassation, 3rd civil chamber, 7 March 2007, No. 05-20.485, Bulletin 2007, III, No. 32): the 3rd civil chamber's case law has been consistent on this point for nearly twenty years.

What sanctions actually apply when the insurer fails to meet its obligations?

Article L.242-1 provides an automatic sanction mechanism, with no need to prove a separate fault by the insurer.

Situation	Sanction under article L.242-1
Insurer misses the 60-day deadline to rule on whether cover applies	Policyholder may commission the repair work at its own initial expense, after notifying the insurer
Insurer misses the 90-day deadline to present a compensation offer	Same sanction: policyholder commissions the work
Compensation offer is clearly inadequate	Same sanction: policyholder commissions the work
Any of the above	Compensation ultimately paid by the insurer is automatically increased by interest equal to twice the statutory legal interest rate
Refusal letter omits the required notice on the right to an expert (Annex II, article A.243-1)	Sanctioned only within the L.242-1 regime, not through a separate contractual liability claim

This table is exhaustive: there is no additional sanction available under ordinary contractual liability law, however serious the insurer's handling of the claim.

What should a construction SME acting as project owner do when faced with a refusal?

A construction SME acting as project owner — building its own workshop or warehouse, for instance — that receives a dommages-ouvrage refusal without an expert assessment or the required notice has one effective lever: invoke directly the deadlines and formalities of article L.242-1 and Annex II of article A.243-1, not an ordinary contractual liability claim, which this ruling confirms is doomed to fail.

In practice, that means checking three points as soon as the refusal letter arrives: whether the 60-day deadline (or 15 days when no expert is appointed) was respected, whether the notice on the right to request an expert appears, and whether the insurer's investigation before refusing was adequate. If a failure is found on any of these points, the policyholder can notify the insurer of its intention to commission the work itself and claim the statutory interest increase — depending on the specifics of the case, a broker can help assess the failure precisely before acting.

What McLer does

McLer helps French SMEs and mid-sized companies in construction structure and manage their dommages-ouvrage and garantie décennale insurance programmes, including support when a claim is disputed with an insurer. The firm helps clients assess whether a refusal complies with the deadlines and formalities required by article L.242-1 of the French Insurance Code. This support is informational and adapts to each contractual situation, with no guarantee of acceptance by any insurer.

Want clarity on your dommages-ouvrage cover?

Contact McLer to review your construction insurance programme, based on your situation and ongoing projects.

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McLer is an insurance brokerage specialised in corporate risk for the road transport and construction sectors. Based in the Paris region, McLer supports French SMEs and mid-sized companies in structuring, negotiating and managing their insurance programmes.

Related reading: penalties for uninsured decennial liability in France and challenging a decennial insurance refusal before the Bureau Central de Tarification.