Italian Supreme Court – Failure to adopt an adequate technical defense might breach the insured's duty to mitigate

Factual backgrounds

The case originated when a civil court convicted an anesthetist for medical malpractice after an operation on a newborn child resulted in serious permanent damage.

The trial ended with a compensation order against (among others) the anesthetist. The court didn’t accept the defense argument based on the anesthetist's objection to continuing the surgery, giving more weight to the medical records, which hadn’t been formally challenged for falsity at any stage of the proceedings.

Later, the anesthetist (Insured) took legal action against her insurer to have the validity of the civil liability insurance policy recognized and to obtain the insurer’s payment of the coverage.

First and second instance proceedings

Both the Court of First Instance and the Court of Appeal recognized the Insured's right to compensation, rejecting the objection raised by the insurer that the Insured's defensive conduct constituted a breach of the duty to mitigate provided for by Article 1914 of the Italian Civil Code (ICC).

The insurer challenged the doctor's failure to take, during the indemnity proceedings, specific defensive initiatives, including filing a formal challenge for falsity (querela di falso) against the medical records. According to the insurer, the gaps and errors in the defense strategy would have been relevant under the provision, since they could potentially prejudice the insurer’s liability exposure.

Conversely, the Court of Appeal held that the duty to mitigate only concerns conducts that could prevent or reduce the damage caused to the third party. Since the alleged procedural mistakes occurred after the damage had already materialized, they were deemed irrelevant in terms of forfeiting the right to compensation, as they didn’t fall within the causal chain of the harm suffered by the third party.

The Supreme Court decision (no. 10725/2025)

The insurer appealed to the Supreme Court, claiming the breach and false application of Article 1914 of the ICC, by failing to consider the insured party's insufficient diligence in managing its legal defense.

The Supreme Court upheld the appeal. The court clarified that the duty to mitigate doesn’t end with merely preventing the damage, it also extends to conduct subsequent to its occurrence, including conduct aimed at containing or reducing the extent of the damage. As such, the Insured’s procedural conduct in liability proceedings brought by the injured third party falls within the scope of application of Article 1914 of the ICC.

The ruling addresses a narrow and traditional reading of the institution, previously confined to tangible actions of prevention or containment. The court recognized that containing legal expenses incurred to resist the injured party's claim falls within the scope of Article 1914 of the ICC. In this sense, the duty to mitigate may even involve abstaining from legal defense if no concrete benefit can be derived from the latter.

More generally, the court specified that the defensive strategies adopted during the action for damages must also be characterized by the diligence of a “reasonably prudent person.” So any negligence in the technical defense (such as omitting a formal challenge for falsity, ie querela di falso) could be considered a breach of the duty to mitigate, affecting the insured’s right to compensation, provided they’re not attributable to the insurer or to counsel appointed by the insurer.

Conclusion

This ruling significantly broadens the scope of the duty to mitigate, extending its applicability to procedural behavior. By formulating a clear and innovative principle of law, the Supreme Court confirmed that the duty set forth in Article 1914 of the ICC also applies to how the insured conducts litigation, imposing a standard of diligence and responsibility in managing legal proceedings. This results in a heightened duty of cooperation on the insured, who now has to adopt all measures, including procedural measures, to avoid or minimize the financial consequences of the damage.