An insurer may apply for a court-ordered expert appraisal (expertise judiciaire) before any trial without having yet compensated its insured or the victim. Article 145 of the French Code of Civil Procedure does not require the claimant to establish that the future claim is well founded: it is enough to show a potential dispute. The absence of payment therefore does not make the contemplated subrogation claim manifestly bound to fail.
The essentials
- An expert appraisal before trial may be ordered under Article 145 of the French Code of Civil Procedure without the claimant having to demonstrate that the claim it contemplates is well founded.
- An insurer that has not yet paid anything may seek an investigative measure (mesure d'instruction), even if it intends to act later as subrogated to the victim's rights.
- The insurer's subrogation, by contrast, presupposes that the victim has first been compensated: that condition is assessed at the stage of the claim on the merits, not at the stage of the investigative measure.
- The judge retains unfettered discretion to set aside an application that is manifestly bound to fail, which would then reflect an absence of legitimate reason (motif légitime).
- An investigative measure already ordered may be extended to other parties involved and declared enforceable against them, so that the operations are conducted on an adversarial basis.
What facts led to this extended appraisal?
The first civil chamber dismisses the appeals: an insurer does not have to prove that it has compensated the victim in order to obtain an expert appraisal before any trial (Civ. 1re, 28 May 2026, No. 24-10.385). A company had commissioned a builder to install a photovoltaic system integrated into the roof of an agricultural building owned by an agricultural civil company (société civile d'exploitation agricole). Alleging malfunctions, the commissioning company and the owner of the building issued summonses in summary proceedings (référé) against the builder's liability insurer and an agricultural insurer, in order to obtain a court-ordered expert appraisal.
The builder's liability insurer then applied to the same court to have that measure, ordered on 19 October 2021, extended to the manufacturer of the modules, to its successive insurers and to two component manufacturers. The decision under appeal (CA Montpellier, 26 October 2023, No. 22/06208) declared the order in summary proceedings common to one of those insurers, held the appraisal operations enforceable against it and extended the expert's terms of reference.
The insurer thus joined argued that the application was manifestly bound to fail. Its argument: the applicant insurer had made no payment to the victim, so that it could not be subrogated to the victim's rights. The Court rejects that reasoning in the following terms (free translation):
It follows from Article 145 of the French Code of Civil Procedure that, since the claimant does not have to establish that the claim for which the investigative measure is sought is well founded, it is not required at that stage to prove that the victim has been compensated in order to apply for that measure, even where it seeks the measure with a view to possibly acting as subrogated to that victim's rights.
What does this ruling change for an insurer or a company?
An insurer may apply for a preventive expert appraisal as soon as the loss appears, without waiting until it has paid anything. The logic lies in the very purpose of an investigative measure before any trial: it serves to preserve or establish evidence with a view to a possible dispute, not to resolve that dispute. Requiring proof of payment would mean ruling, at the appraisal stage, on a condition that concerns only the proceedings on the merits.
The chronology adopted by the lower court judges is telling. The appraisal is precisely intended to determine the causes of the defects, the liabilities incurred and the amount of the damage. Compensation of the victim can therefore only take place after those operations, or even after the victims have brought proceedings on the merits. Making the measure conditional on prior payment would trap the insurer in a practical impossibility.
For a company facing a complex technical loss, the lesson is direct. Future standing to sue (qualité pour agir) does not have to be already established on the date of the application for the appraisal. It is enough to show a potential future dispute liable to arise between the parties, which the lower court judges assess in their unfettered discretion.
Legitimate reason and a claim bound to fail: where is the line?
The ruling confirms the separation between the conditions for the investigative measure and the conditions for the claim on the merits, without removing the judge's review. The ground of appeal set out exactly the law applicable to subrogation: an insurer is subrogated to the victim's rights only after it has paid. The decision does not contradict that principle. The lower court judges had themselves stated that a subrogation claim presupposes that the insurer has first compensated the victim.
What the Court refuses to do is to transpose that condition to the stage of Article 145 of the French Code of Civil Procedure. The absence of payment does not make the future claim manifestly bound to fail, since payment may occur later. The test for review therefore remains that of an application manifestly bound to fail, the assessment of which falls within the unfettered discretion of the lower court judges.
Room for challenge remains, but it shifts. A defendant seeking to have a preventive expert appraisal set aside can no longer simply rely on an admissibility condition not yet satisfied on the date of the application. It must establish that the contemplated claim is, in itself, manifestly bound to fail.
How to respond to an application to extend an appraisal?
A challenge based on a substantive condition not yet satisfied has little chance of defeating a preventive investigative measure. A company or an insurer joined to an appraisal already ordered must therefore redirect its defence to other grounds: the absence of any potential dispute, the absence of any link between its own involvement and the alleged defects, or a challenge to the scope of the terms of reference sought.
Conversely, an insurer anticipating a recourse claim has an interest in applying for the measure to be extended as early as possible. Waiting until it has paid before acting brings no procedural advantage and creates a risk that evidence will deteriorate. Extension has another advantage: the operations become enforceable against the parties joined and are conducted on an adversarial basis in relation to them.
Refusing to take part in extended appraisal operations is not a neutral strategy either. The technical findings made in that context will then feed the debate on the merits. A company against which liability is alleged therefore has a concrete interest in putting forward its technical observations at that stage, rather than concentrating its efforts on a challenge of principle.
Checks to carry out when faced with an expert appraisal before trial
- Check whether the application rests on an identifiable potential future dispute, and not on a mere general assumption that liability may be alleged.
- Do not base the challenge solely on the applicant insurer's failure to pay compensation: that circumstance is not enough to set the measure aside.
- Examine closely, item by item, the scope of the appraisal terms of reference whose extension is sought.
- Gather, as soon as liability is alleged, the technical documents, instruction manuals and traceability records relating to the components or services concerned.
- Take an active part in the operations made enforceable, since their findings will serve the debate on liability.
Frequently Asked Questions
Can an insurer apply for a court-ordered expert appraisal before compensating its insured?
Yes. Under the decision of 28 May 2026, an insurer does not have to prove that it has compensated the victim in order to obtain an investigative measure based on Article 145 of the French Code of Civil Procedure, even if it intends to act later as subrogated to that victim's rights. At this stage, the claimant does not have to establish that the contemplated claim is well founded. Showing a potential future dispute is enough.
Must payment always be made before bringing a subrogation claim?
Yes, an insurer's subrogation claim presupposes that the victim of the damage has first been compensated. The decision under review does not call that principle into question: it holds only that this condition is not assessed at the stage of the application for a preventive appraisal. Payment may occur after the appraisal operations, once liability and the amount of the damage have been determined, or even after the victims have brought proceedings on the merits.
On what ground can an application for an expert appraisal before any trial be dismissed?
A judge may set aside the application where it is manifestly bound to fail, which reflects an absence of legitimate reason. That assessment falls within the unfettered discretion of the lower court judges. In the case decided on 28 May 2026, the absence of payment by the applicant insurer was not enough to establish such a situation, since compensation could occur later. The challenge must therefore target the contemplated claim itself.
What does it mean for an appraisal to be declared common to a company and enforceable against it?
An appraisal declared common to a company means that the company is called to the operations and that the expert's findings may be relied on against it in later proceedings. The operations are then conducted on an adversarial basis in relation to it: it is summoned, receives the documents and may submit observations. Ignoring that summons means allowing technical findings to be established without having put forward its own position.
Why should a company take part in appraisal operations rather than challenge them?
The interest is evidential. The expert's findings will feed the debate on liability and on the quantification of the damage during the proceedings on the merits. A company that takes part can have its technical observations recorded, discuss the assumptions adopted and document the compliance of its services or products. Focusing its defence on a challenge of principle, without engaging on the technical ground, deprives the company of a decisive means of influence.