Excluding hedging in the Voluntary Accident Insurance for Rafael Juan Juan Sanjose

exclusion de garantia en seguro voluntario

Special reference to drunken driver

Today published an analysis of outstanding jurist Rafael Juan Juan Sanjosé, Alternate Judge of the Provincial Court of Castellón.

This entry is longer than usual and is intended for legal professionals. Here you work Juan Juan Rafael Sanjose:

Excluding hedging in the Voluntary Accident Insurance

Special reference to drunken driver

Rafael Juan Juan Sanjosé
Alternate Judge of the Provincial Court of Castellón

Index

1.- Introducción.
2.- Risk vs delimiting clauses restrictive of rights.
3.- Double requirement of Article 3 LCS.
4.- Special reference to drunken driver of the insured.

1.- Introducción.-

It is common for insurance companies, when a claim covered in an insurance policy of motor vehicle accidents and the driver has occurred was under the influence of alcohol or toxic substances, intends to discharge its obligation to indemnify.

In these cases the first thing we ask is whether there is any clause providing that exemption in the insurance contract and if so interpret it in case we have a bounding clause of risk or on the contrary we have a limitation of rights Insured.

Therefore, In this paper we analyze, first, the differences between the two types of clauses, then move to study the requirements that the restrictive clauses should be enforced in accordance with Article 3 LCS for the insurer can be released from its indemnity obligation.
Finally we analyze the response that the law has given regarding the case of drunkenness of the insured driver and the consequences this entails determining the obligations of Contracting, and especially the insurance, They have to the counterparty.

2.- Risk vs delimiting clauses limiting rights.-

The first question to be asked when we are analyzing the extent and effects of a clause inserted in an insurance contract is whether we have a clause boundary of the insured risk or if we actually presents is a clause limiting the rights of the insured.

This distinction will not be trivial, as we discussed below, since both effects, as legal and formal requirements will not be the same in that while some configure the insured risk covered by the contract, the others, they restrict the rights of the insured, how, in principle, weakest part of the contractual relationship, you must have superior protection than the insurer.

So things, and starting with the warning that the Supreme Court itself made in its judgment of 25 November 2013 (1), Keep in mind that there have not always been peaceful profiles that have the Boundary risk clauses and limiting the rights of the insured. The boundaries between them are not clear. It is arriving itself even if the clauses which limit the risk surprisingly assimilated to the limiting of the rights of the insured.

Since this issue has been controversial and the result of the existence of different interpretative currents about when we are dealing with one or another type of contractual clause, High Court, Judgment of the plenary session in 11 September 2006 (2), doctrine laid, in his own words contained in the second Legal Grounds, in order to maintain a uniform approach and to ensure the strengthening of the principles of legal certainty and equal application of the law.

For this reason it is so, without ignoring the own casuistry of insurance law, and the difficulty in practice presents the distinction between some clauses, the High Court established the doctrine of application, decisional foundation whose two fundamental aspects:

a) one side, the distinction between boundary terms of risk from those that restrict the rights of policyholders,

b) and, of other, the location of the first contract, and control of inclusion and content.

Once raised the question, that resolution defines both concepts, and thus gives an overview of jurisprudence starting with STS 16 October 2000 (3), It determines that the restrictive clause operates to restrict, condition or modify the insured's right to compensation once the object of the insurance risk has occurred, and risk exclusion clause is the class that specifies which of them has become subject of the contract.

Consequently, and paraphrasing the High Court, the delimiting risk clauses are, for, those through which the specific object of the contract, it risks setting, if it occurs, since it is the object of insurance, They give rise in the insured's entitlement to benefits, insurance and mutual duty to attend to. Therefore delimiting clauses are those that determine what risk is covered, to what extent, for how long and at what spatial area (SSTS 2 February 2001; 14 May 2004; 17 March 2006).

This allows to distinguish what is a risk coverage, the compensation limits and the insured or contracted amount, Contract clauses that limit the rights of policyholders, once already it finalized the object of insurance, because they have nothing to do with these, but with delimiting, as within the scope of the autonomy, They are the cause of the contract and the regime of rights and obligations of the insurer, and they are not subject to the requirements of the Law of the limiting, as the art. 3 LCS, since the requirement of this provision does not apply to a general condition or their exclusionary clauses of the insurance liability, but to those who are limiting the rights of the insured (STS 5 March 2003 , and those cited therein).

Therefore, STS cited 11 September 2006, feel a doctrine, subsequently collected in many other, whereby risk provisions are delimiting those that are intended to define the subject of the contract, so that they materialize:

1. what risks are the object,

2. to what extent,

3. for how long and

4. what time domain.

As we are reminded of the STS 15 October 2014 (4) subsequent resolutions to that of 2006, like 17 October 2007 (5) and the 5 March 2012 (6), They understood to be included in this category, risk coverage, the compensation limits and the insured amount. It is, for, to individualize the risk and to establish their objective basis, establish "objective exclusions", as stated in the judgment of 5 March 2012, remove ambiguities and specify the nature of risk in line with the subject of the contract or arrangement for use with established, provided that delimit the risk that is inconsistent with the conditions of the contract or not frequent or unusually striking.

For his part, the rights clauses limiting condition target or modify the right of the insured and therefore compensation, when the object of the insurance risk were to occur.

These must fulfill the formal requirements of art. 3 LCS, so that should be highlighted in a special way and have to be expressly authorized in writing, formalities which are essential to ensure that the insured had an exact knowledge of the risk covered (SSTS 20 April 2011, RC 1226/2007 and 15 July 2009, RC 2653/2004).

The latter, determine, conveniently, the concept of limiting clause, referencing it to the natural content of the contract, derivative, inter alia, clauses identified by its defining character, the particular terms of the contract and typical or usual scope corresponding to the object in accordance with the law or the insurance practice. The principle of transparency, basis for the special scheme for limiting clauses, It operates with special intensity about the introductory clauses or individuals.

Meanwhile the delimiting clauses risk because delimit or define the limits of the insurance coverage without suppressing or restrict any rights are not subject to the requirements of Article 3 LCS.

In this context it is important to note the remark made by the High Court in the judgment of 27 June 2013 (7), when it determines that the limitation of a clause can be, also, of that regulation that opposes the contract is established, with negative character for the insured, which it can be considered usual or derived from the introductory clauses or individuals.

Notwithstanding this, and as we have advanced above, It is not always easy to determine, with the parameters offered by the law, when we have a boundary or limiting clause, and therefore, as the Supreme Court stated in Sentence 9 July 2012 (8) identifying the set of obligations arising for the parties to any contract requires finding the common will of these that was expressed in the same.

In line with the above, says the resolution, que la jurisprudencia (9) ha reiterado el carácter preponderante que tiene la interpretación literal frente a otros criterios, which they are of subsidiary application.

Accordingly, should only crucial factor the literal sense of the contractual clauses of the contract when the letter leaves no doubt about the intention of the parties (SSTS 30 September 2003, 28 June 2004, 10 March 2010, RC n.º 2413/2004 and 1 October 2010, RC n.º 2273/2006) for, if perceived lack of clarity or contradictions between the will expressed by the wording of those clauses and really wanted by the parties, the rule of the second paragraph of that article should be applied 1281 CC in order to prevail the real intent (SSTS 29 February 2012, RC n.º 842/2008 and 4 April 2012, RC n.º 1043/2009).

This doctrine is applicable to the insurance contract (SSTS 9 October 2006, RC n.º 5177/1999; 17 October 2007, RC n.º 3398/2000, 20 July 2011, RC n.º 819/2008, 28 November 2011, RC n.º 1639/2008, inter).

The lack of clarity gives way to other subsidiaries rules of interpretation. Article 1284 CC imposes a purposive interpretation and responds to the principle of conservation of contract (Please business): If any provision of the contracts admitted various senses, it should be understood in the most suitable to produce effect (STS 4 April 2012, RC n.º 1043/2009).

For his part, Article 1288 CC gathers the hermeneutical canon against proferentem (against the proponent), as punishment for lack of clarity to protect the weaker contracting in the sense that the interpretation of the dark clauses of a contract must not favor the party who has caused the dark (10).

This rule has been applied reiteration by the jurisprudence of the High Court accession contracts as insurance and is related to the special protection afforded to consumers provisions such as Article 80.2 TRLGDCU (11) en que expresamente se ordena que «en caso de duda sobre el sentido de una cláusula prevalecerá la interpretación más favorable para el consumidor».

But it is a rule of interpretation that only comes into play when there is an obscure clause that is dark entire contract, for, Given this lack of clarity and transparency, with the consequent impossibility of knowing the common will, it has to protect the contractor that did not cause confusion.

Also emphasizes the Supreme Court in the resolution of 9 July 2012 which as stated by this Court on the occasion of distinguishing between risk and delimiting clauses restrictive of rights, when the insurance contract an adhesion contract, birth for the insured's entitlement to benefits, and for the insurance, reciprocal duty to attend to, It depends on the fulfillment of this duty of transparency in the drafting of contractual content herself predisposed, to determine clearly what risk is hedged, to what extent, for how long and at what spatial area.

Since the contract comes from the natural content that has the hedged risk and the premium, as the causal delimitation of the sum insured risk and the satisfaction it gives objective interest in the contract, it is essential to understand this distinction see if the insured had an exact knowledge of the risk covered.

And like all insurance regulation is focused on protection, They are to be resolved in their favor interpretative doubts arising from the wording of the contract or dark or confusing clauses, because the demand for contract transparency, at least when the perfection of the contract is subject, as is the case of adhesion, an act of will on the part of the applicant, requires that the insurer complies with the duty to inform the insured that shapes the object of insurance on which will give their consent, which is, in risk, thus enabling awareness of the delimiting clauses risk, as those that limit their rights, with the clarification that the latter must be done with clarity and emphasis required by law, which it requires that special acceptance is collected.

En el mismo sentido la STS de 15 July 2009 (12) He declares that negatively given the concept of limiting clause, its affirmative determination, under the various examples provided jurisprudence, It must be made by reference to the natural content of the contract, derivative, inter alia, clauses identified by its defining character of the particular clauses of the contract and typical or usual scope corresponding to the object in accordance with the law or the insurance practice.

Of these criteria It follows that the restrictive nature of a clause can be, also, of that regulation that opposes the contract is established, with negative character for the insured, which it can be considered usual or derived from the introductory clauses or individuals. The principle of transparency, which it is the basis of the special scheme for limiting clauses, opera, indeed, with special intensity with regard to the clauses that affect the regulation of contract.

This is also, as the High Court recalled in Case 28 November 2011 (13), the criterion expressing STS 18 May 2009 (14), abounds on the idea that what is important is that the insured see limited or restricted their rights in relation, for example, to those who have been attributed in part to the policy negotiated, which will be reflected in the special conditions and not on the general, predisposed exclusively by the insurer to be incorporated into several contracts, calling for the opposition of any limitation contained in these stating their explicit consent in the manner provided in Article. 3 LCS, adding clarity in identifying policy guarantees covered becomes insufficient, by contradictory with it, the statement assumed as own by the policyholder to know and accept the limitations established in the general conditions, more so if the content thereof is not transcribed and only the number of each of the articles that incorporate identifies, yes, with its respective title. It is insufficient in this regard reference.

Do not forget that according to the judgment of the Supreme Court 8 March 2007 (15) stipulated in the special conditions prevailing on the provisions of the general conditions, they have a complementary role and informative regarding general.

Accordingly, regardless of which it has a delimiter character or risk limiting rights, the addition of a clause to the insurance contract requires acceptance by the insured.

Also, if the demand for contract transparency requires that the insurer complies with the duty to inform the insured that shapes the object of insurance on which will give their consent, en particular, the risk or risks covered and those that are not, logical, reasonable and adjusted to such a requirement and the jurisprudence exposed, understand that no efficacy against the insured must have an exclusion of risk made in note "masked", the, how much less, so poorly transparent.
In conclusion, as stated in the judgment of the Supreme Court Plenum 14 July 2015 (16):

  • Its cláusulas delimitadoras del riesgo: those that determine what risk is hedged, to what extent, for how long and at what spatial area, including in these categories cover a risk, the compensation limits and the insured or contracted amount. They serve a purpose to eliminate ambiguities and specify the nature of risk in line with the subject of the contract or consistent with established usage, I avoid as contradictory to delimit the purpose of the contract or special conditions of the policy (SSTS 25 October 2011, 20 April 2011, 18 May 2009, 26 September 2008 and 17 October 2007).
  • Its cláusulas limitativas de los derechos del asegurado: restricting the, condition or modify the right of the insured to compensation, Once the risk has occurred (SSTS 14 June 2007, 30 December 2005 and, 26 February 1997, inter). Not always the differences between each other appear in clauses clearly enough, often treated as restrictive of rights which surprisingly limited risk (STS 25 November 2013, RC 2187/2011). The principle of transparency which operates with particular intensity in the clauses limiting rights, must be apparent in the particular clauses (STS 15 October 2014, RC 2341/2012).

3.- Double requirement of Article 3 LCS.-

Article 3 párrafo primero LCS establece que “(the)as general conditions, that in no case may have prejudicial nature for policyholders, shall be supplied by the insurer in the insurance proposal and if any policy necessarily in the contract or in an accompanying document, to be signed by the insured and which deliver a copy of it. The general and special conditions shall be clearly and accurately. They will be highlighted in a special way the clauses limiting the rights of policyholders, que deberán ser específicamente aceptadas por escrito.

As you see in the final paragraph of Article, in the case of clauses limiting rights, it requires so that the insurer is freed of its obligation to compensate the dual requirement is met exposed, namely:

a) They are highlighted in a special way.

b) Who are especially accepted in writing.

About, sentence, aforementioned, Plenary of the High Court 14 July 2015 specifies that:

La exigencia de que las cláusulas limitativas de derechos figuren “destacadas de modo especial”, It is intended that the insured has an exact knowledge of the risk covered.

The Supreme Court case law requires that should appear in the special conditions and not on the general conditions, by more than, in the latter declare meet those, as noted by the STS 1 October 2010 (17), inter. The wording of the clauses must meet the criteria of transparency, clarity and simplicity, and must appear highlighted or emphasized in the text of the contract.

Of particular relevance is the STS 19 July 2012 (18) which it concluded that the restrictive clause could not be relied on against by not complying with the requirements of Art. 3 LCS for not being clear or appear prominently “and mottling paragraph that it contains, …heterogeneous mixture of exclusions subject of a group that gets hinder their understanding … with wording “crowded and congested” it lacks clarity and notoriously difficult to display a reading and understanding of the clause”.

In any case, the clauses restricting rights must allow the insured, understand the meaning and scope thereof and differentiate them from those without that nature.
Respecto a la exigencia de que las cláusulas limitativas deban ser “especialmente aceptadas por escrito”, it is a requirement which must be satisfied cumulatively with the previous (19), so it is essential the signature of the payee.

As it noted above, the firm should not appear only in the general contract, but in the particular conditions it is the document normally be the limiting rights clauses appear. STS 17 October 2007 (20) considered fulfilled this requirement when signing the policyholder at the end of the particular conditions and the 22 December 2008 (21), compliance admitted by referral policy to a separate document in which they appeared, duly signed, duly prominent limitation clauses. In no case it has been demanded by the High Court a signature for each of the restrictive clauses.

In any case, and in general, it should be remembered, and so does the resolution of the Supreme Court of 14 July 2015, the transparency control, As it has been set by the High Court (SSTS 9 May 2013 and 8 September 2014), It applies to the serial accompanying insurance contracts, particularly the accessibility and comprehensibility Real ensured by limiting causes the insurance that respond to their own behavior or activity, you must be especially reflected in the policy and differentiated.

As noted the judgment of the Supreme Court 1 October 2010 (22) a specification of such caliber that means reducing the risk coverage of guaranteed basic assumptions for singular, when escaping what could reasonably expect the insured, You MAY NOT opposed to it at the expense of a compensation law that was defined in the special clauses, while to perfect the insurance contract with the provision of consent.

Being a restrictive clause, it could only be valid and effective, enforceable against him, if it is established as a proven fact that at the same time improving the insurance contract was actually known and accepted in the manner provided in Article 3 LCS, to which must be added to the solemnity of this prevents it deemed as complied with the signing of a standard clause.

So things, and as stated the judgment of the High Court 18 May 2009 (23), Article 3 LCS serves to protect the policyholder, the requirement of a number of requirements that the legislator considers necessary to ensure that, when consents to the perfection of insurance contract, dutifully knows the contents thereof (24).

In this sense the STS 13 May 2008 (25), the appointment of plenary 11 September 2006, previously mentioned, adds and clarifies that policy and Conditions are not the same thing, distinction is manifest in Article 3 LCS -STS 26 February 1.997 (26)-.

And if the contract is integrated with general conditions, these must necessarily be included in the Policy, as authentic contractual clauses, whose binding force for the policy lies in mutual acceptance and agreement of wills (27).

The particular conditions, special and general contract mark the event whose risk is hedged positively -determinados damage- and negatively-certain damage or, best, certain causes of damage- It is thus defined risk, as clause “constitutes the core object or insurance, It concrete exactly as far as it can achieve an action for damages” -STS 7 July 2003 (28)-.

They are therefore clauses, even delimiting, They are likely to be included in the general conditions to form part of the contract, being subject to the regime of generic acceptance without the need for compliance with the requirements of integration required of the limiting, as it noted repeated jurisprudence (29), direct or indirect.

Definitely, this doctrine would not be possible if certain assumptions are not met they have to do with control of inclusion, a que se refiere el artículo 3 LCS, on all terms and conditions, attending the inexcusable nature of these contracts as mass and adhesion contracts, in order to facilitate the adhesive and its actual knowledge that is bound by its content.

And this requires that the wording is clear and precise, and which are known and accepted by the insured for which it is sufficient that in the particular conditions, subscribed by him, is expressed, the same clear and precise, who knows and has received and verified the general conditions, when it left untreated conditions that restrict the rights of the insured.

In this regard it is also important nuance introduced by the judgment of the High Court 13 September 2007 (30), when it states that if a certain provision can not be regarded as limiting rights clause, but as bounding risk clause covered, the consequence is that its enforceability by the insurer does not depend on the so-called double signature referred to in Article 3 LCS, being sufficient attesting that was part of the policy and was known and accepted by the insured to hire, shall then form part of the contents of the contract.

In the same vein also he notes the STS cited 8 March 2007 that, While it is true that direct action is immune to the exceptions that may apply to the insurer against the insured, such provision can not be extended to the definition of insured risk and insurance coverage, elements that integrate the framework in which it operates and assurance, therefore, be decisive for fixing the insurance premium, they are also for the establishment of the limit of liability of the insurance indemnity, without it can be inferred that the obligation to the third party to exceed the limits concerted own insurance for then you would be exceeding the definition of an insurance contract in Article 1 LCS when he says that the obligation of the insurer to indemnify it will be "within the limits agreed" and would lead to the absurd conclusion that prejudiced against the third party would always unlimited coverage.

So things and regarding clauses limiting the rights of the insured, while the dual requirement under Article is not met 3 LCS, the insurer will not be safe to indemnify the insured, even if it meets the provisions of the clause and that in principle exclude the compensation duty.

4.- Special reference to the insured intoxicated driver.-

It is concurrent, in forensic practice, meet with cases in which the insurer intends to avoid its obligation to indemnify the insured driver when the accident has been tested for alcohol or toxic, giving positive.

In these cases, the first thing we look at is if we have a boundary or limiting the risk of the insured rights clause, and in case of being in the second, whether they have met the requirements laid down in article studied 3 LCS.

So things the STS plenary 14 July 2015, aforementioned, states that the voluntary accident insurance Article 100 LCS defines the insured risk insurance as object, "As bodily injury stemming from a violent cause, Sudden, external and beyond the control of the insured, producing temporary disability, permanent or death ".

Therefore any restriction by clauses that determine the causes and circumstances of the accident or disability arrangements, for which coverage is excluded, would be a clause limiting rights of the insured.

A partir de la STS de 7 July 2006 (31) has been considered that the clause in the disputed policy excludes accidents occurring in a state of intoxication manifested "should be construed as limiting because the situation of drunkenness, even manifest, neither constitutes itself demonstrates the occurrence of the insured intent on causing accidents " (32).

In that case, as we have seen above, the insurer is released from its obligation to compensate, if it meets the dual requirement of art. 3 LCS, typical of the limitation clauses.

In the same vein the judgment of the High Court 25 March 2009 (33) highlights the existence of two lines jurisprudence in the provincial courts in connection with the underwriting of damage committed while intoxicated or under the influence of toxic or similar substances, they would understand that the exclusion from the accident suffered in such circumstances is applicable when contained in a clause, as limiting the rights of the insured, Figure specifically highlighted and which it accepts, those who reject the claim, even if not included in the policy validly any such clauses, It is not under the coverage of the insurance contract, by applying the legal provisions which exclude losses caused by bad faith of the insured (art. 19 LCS); and, specifically in connection with accident insurance, which exclude claims arising from causes other than outside the intent of the insured (article 100 LCS) and intentionally caused by this (article 102 LCS).

But the issue, and emphasizes that resolution, already it decided by the Supreme Court, among other in STS 7 July 2006, previously mentioned, and STS 13 November 2008 (34) which they claim that the clause in the disputed policy excludes accidents occurring in a state of intoxication manifested be construed as limiting, because the situation of drunkenness, even manifest, neither constitutes itself demonstrates the occurrence of the insured intent on causing accidents.

So, Following this line of argument, Case 12 February 2.009 (35), in which the same legal issue raised here is debated, it upheld the appeal of the insured with the following arguments: "It is true that this power of repetition comes from the law, in line with the EC's interpretation, Judgment in the 5th Chamber of the Court of Justice of the European Communities 28 March 1.996 (SWEET number 180/10, of 22 June 1.996) He considered that "the compulsory insurance contract may not provide that in certain cases and in particular in the drunk driver of the vehicle, the insurer is not obliged to compensate personal injury and property damage caused to third parties by the insured vehicle 'noting that "however, the compulsory insurance contract may provide that, in such cases, the insurer provided an action for recovery against the insured '.

But if this is so, continues to argue the decision of the High Court, in those cases in which it has contracted voluntary insurance, contract that governs the relationship between insurer- insured as a result of the principle of autonomy, we must consider whether the risk is covered or not by this insurance, without it being possible, in the light of the jurisprudence of the Supreme Court sitting in the judgment of 7 July 2.006 and then followed by the Judgment 13 November 2.008, considering that this type of behavior, to be fraudulent, they can not be assurance.

Already he said, in the first case cited, that: "Admitting, principle, all result derived from a conduct defined as criminal, even in the case of risk figures, can not be assurance (since the exclusion of the alleged bad faith of the insured meets the contract morality reasons linked to the legitimacy of their cause) no es compatible, from the standpoint of formal logic, with the principle of self-autonomy in governing this contractual matters; and, from a logical perspective materials, It does not support the argument verification when contrasted with their disproportionate and contradictory consequences in relation to the usual scope of the insurance contract and the content assigned to it by law in various mandatory procedures related activities likely to cause accidents.

The exclusion of insurance coverage for losses incurred or suffered by the insured driving a motor vehicle in a situation of excess alcohol can not be accepted, while recognizing the great importance of the social function of insurance, and although his introduction deemed necessary by virtue of prevention policies or other, if not covered by a specific provision in the standard.

So currently the case, following the transposition of Community standards order, in regulating liability insurance in the circulation of motor vehicles, but only in respect of the insured and not in respect of third exercising direct action as a victim or harmed (art. 10.A of Law Liability and Insurance in the Circulation of Motor Vehicles and 9.4 of the Rules and decisions of the Superior Court of Justice of the European Communities 28 March 1996).
In another case, only be introduced into the policy provisions, for, even though there is no doubt that excessive alcohol consumption and the resulting driving increases the risk of accident, not every situation that increases the risk should be equated with the existence of fraud, intent or bad faith and are insurers who, in the economy of the insurance contract, must weigh, as permitted by law, subject to the requirements set out therein, the opportunity to exclude certain risks in using freedom of pacts ".

This being so, the conclusion circumscribe the scope of the solution and allocate compulsory insurance amounts paid to it by the insurance, would ignore the existence of an agreement between the parties that would cover the event occurred, unless it was expressly excluded.

The solution, therefore, It is not in the compulsory insurance, in which the insurer would have power to repeat in the event of damage caused by intoxication, but concerted analysis voluntary insurance complements the above, in such a way that, if the parties agreed to their exclusion, the insurer shall have no power of recovery against the insured as there would be undue payment of the first and, therefore, unjust enrichment of the insured, but I pay justified under the principle of autonomy governing the voluntary insurance. Else would understand the same condition that the insured is limited to compulsory insurance and the insured so that foresighted and paying for it corresponding premium, contracts over a voluntary insurance mandatory, relying on the belief of having hired all risks except those specifically excluded.

Therefore, It must be considered that existing voluntary insurance, It is examined, given the restrictive nature of the clauses excluding the risk in cases of intoxication, compliance with the requirements of Article 3 Law of Insurance Contracts, to consider the effects of the exclusion applicable risk as it was known and accepted by the insured.

Juan Juan Rafael Sanjose

Alternate Judge of the Provincial Court of Castellón.

__________________________________________

Notas:

(1) STS, Civil section 1 the 25 November 2013 (ROJ: STS 5633/2013 – ECLI:ES:TS:2013:5633); Sentence: 715/2013 | Resource: 2187/2011 | Speaker: PAPIOL SASTRE SEBASTIAN - Basis third law.

(2) STS plenary, Civil section 1 the 11 September 2006 (ROJ: STS 6597/2006 – ECLI:ES:TS:2006:6597); Sentence: 853/2006 | Resource: 3260/1999 | Speaker: JOSE ANTONIO QUINTANA SEIJAS – Second foundation of the right to fifth.

(3) STS, Civil section 1 the 16 October 2000 (ROJ: STS 7414/2000 – ECLI:ES:TS:2000:7414); Sentence: 961/2000 | Resource: 3125/1995 | Speaker: Ballesteros GULLÓN ANTONIO - Legal Grounds fourth.

(4) STS, Civil section 1 the 15 October 2014 (ROJ: STS 4785/2014 – ECLI:ES:TS:2014:4785); Sentence: 534/2014 | Resource: 2341/2012 | Speaker: PAPIOL SASTRE SEBASTIAN - Basis third law.

(5) STS, Civil section 1 the 17 October 2007 (ROJ: STS 7789/2007 – ECLI:ES:TS:2007:7789); Sentence: 1050/2007 | Resource: 3398/2000 | Speaker: Juan Antonio XIOL Rios.

(6) STS, Civil section 1 the 05 March 2012 (ROJ: STS 1577/2012 – ECLI:ES:TS:2012:1577); Sentence: 82/2012 | Resource: 838/2009 | Speaker: FRANCISCO JAVIER ARROYO HOLIDAYS - Legal Grounds fourth.

(7) STS, Civil section 1 the 27 June 2013 (ROJ: STS 4094/2013 – ECLI:ES:TS:2013:4094); Sentence: 417/2013 | Resource: 489/2011 | Speaker: RAFAEL saraza JIMENA - Basis third law.

(8) STS, Civil section 1 the 09 July 2012 (ROJ: STS 5766/2012 – ECLI:ES:TS:2012:5766); Sentence: 473/2012 | Resource: 2048/2008 | Speaker: JUAN ANTONIO XIOL RIVERS - Basis third law.

(9) SSTS 10 March 2010, RC n.º 2413/2004, 27 June 2011, RC n.º 417/2008 and 26 March 2012, RC n.º 146/2009.

(10) SSTS 21 April 1998 , 10 January 2006, RC n.º 1838/1999 ; 5 March 2007, RC n.º 1066/2000 and 20 July 2011, RC n.º 819/2008

(11) Royal Decree 1/2007, of 16 November, approving the revised text of the General Law for the Defence of Consumers and Users and other complementary laws.

(12) STS, Civil section 1 the 15 July 2009 (ROJ: STS 5705/2009 – ECLI:ES:TS:2009:5705); Sentence: 516/2009 | Resource: 2653/2004 | Speaker: JUAN ANTONIO XIOL RIVERS - Basis second law.

(13) STS, Civil section 1 the 28 November 2011 (ROJ: STS 9337/2011 – ECLI:ES:TS:2011:9337); Sentence: 880/2011 | Resource: 1639/2008 | Speaker: JUAN ANTONIO XIOL RIVERS - Basis third law.

(14) STS, Civil section 1 the 18 May 2009 (ROJ: STS 2685/2009 – ECLI:ES:TS:2009:2685); Sentence: 316/2009 | Resource: 40/2004 | Speaker: FERRÁNDIZ JOSE RAMON GABRIEL - Basis second law.

(15) STS, Civil section 1 the 08 March 2007 (ROJ: STS 1203/2007 – ECLI:ES:TS:2007:1203); Sentence: 268/2007 | Resource: 721/2000 | Speaker: IGNACIO SIERRA GIL SLOPE - Legal Grounds first.

(16) STS, Civil section 991 the 14 July 2015 (ROJ: STS 3754/2015 – ECLI:ES:TS:2015:3754); Sentence: 402/2015 | Resource: 1241/2013 | Speaker: PAPIOL SASTRE SEBASTIAN - Basis third law.

(17) STS, Civil section 1 the 01 October 2010 (ROJ: STS 5535/2010 – ECLI:ES:TS:2010:5535); Sentence: 601/2010 | Resource: 2273/2006 | Speaker: JUAN ANTONIO XIOL RIVERS - Basis fifth Law.

(18) STS, Civil section 1 the 19 July 2012 (ROJ: STS 5988/2012 – ECLI:ES:TS:2012:5988); Sentence: 489/2012 | Resource: 878/2010 | Speaker: FRANCISCO JAVIER ARROYO HOLIDAYS - Basis third law.

(19) STS, Civil section 1 the 15 July 2008 (ROJ: STS 3891/2008 – ECLI:ES:TS:2008:3891); Sentence: 676/2008 | Resource: 1839/2001 | Speaker: JUAN ANTONIO XIOL RIVERS - Basis third law.

(20) STS, Civil section 1 the 17 October 2007 (ROJ: STS 7789/2007 – ECLI:ES:TS:2007:7789); Sentence: 1050/2007 | Resource: 3398/2000 | Speaker: Juan Antonio XIOL Rios

(21) STS, Civil section 1 the 22 December 2008 (ROJ: STS 7348/2008 – ECLI:ES:TS:2008:7348); Sentence: 1029/2008 | Resource: 1555/2003 | Speaker: Juan Antonio XIOL Rios

(22) STS, Civil section 1 the 01 October 2010 (ROJ: STS 5535/2010 – ECLI:ES:TS:2010:5535); Sentence: 601/2010 | Resource: 2273/2006 | Speaker: JUAN ANTONIO XIOL RIVERS - Basis fifth Law.

(23) STS, Civil section 1 the 18 May 2009 (ROJ: STS 2685/2009 – ECLI:ES:TS:2009:2685); Sentence: 316/2009 | Resource: 40/2004 | Speaker: FERRÁNDIZ JOSE RAMON GABRIEL - Basis second law.

(24) SSTS 27 November 2.003, 17 October 2.007, 13 May 2.008, 15 July 2.008, 22 July 2.008, inter.

(25) STS, Civil section 1 the 13 May 2008 (ROJ: STS 1714/2008 – ECLI:ES:TS:2008:1714); Sentence: 394/2008 | Resource: 260/2001 | Speaker: José Almagro NOSETE – First Legal Grounds.

(26) STS, Civil section 1 the 26 February 1997 (ROJ: STS 1357/1997 – ECLI:ES:TS:1997:1357); Sentence: 130/1997 | Resource: 2488/1993 | Speaker: Xavier O'Callaghan Muñoz - Legal Grounds first.

(27) SSTS 31 May, 4 and 9 June; 23 December 1988; 29 January 1.996; 20 March 2003.

(28) STS, Civil section 1 the 07 July 2003 (ROJ: STS 4790/2003 – ECLI:ES:TS:2003:4790); Sentence: 718/2003 | Resource: 3605/1997 | Speaker: Xavier O'Callaghan Muñoz - Basis second law.

(29) SSTS 17 April 2001; 20 March 2003; 14 May 2004 and 30 December 2005.

(30) STS, Civil section 1 the 13 September 2007 (ROJ: STS 5927/2007 – ECLI:ES:TS:2007:5927); Sentence: 985/2007 | Resource: 4226/2000 | Speaker: RAFAEL RUIZ CASCAJARES SLOPE - Basis second law.

(31) STS, Civil section 1 the 07 July 2006 (ROJ: STS 5884/2006 – ECLI:ES:TS:2006:5884); Sentence: 704/2006 | Resource: 4218/1999 | Speaker: Juan Antonio XIOL Rios.

(32) Ver también SSTS de 13 November 2008, RC 950/2004, 22 December 2008, RC 1555/2003 and, 16 February 2011, RC 1299/2006.

(33) STS, Civil section 1 the 25 March 2009 (ROJ: STS 1246/2009 – ECLI:ES:TS:2009:1246); Sentence: 221/2009 | Resource: 173/2004 | Speaker: IGNACIO SIERRA GIL SLOPE - Legal Grounds second.

(34) STS, Civil section 1 the 13 November 2008 (ROJ: STS 5979/2008 – ECLI:ES:TS:2008:5979); Sentence: 1095/2008 | Resource: 950/2004 | Speaker: IGNACIO SIERRA GIL SLOPE - Legal Grounds second.

(35) STS, Civil section 1 the 12 February 2009 (ROJ: STS 446/2009 – ECLI:ES:TS:2009:446); Sentence: 90/2009 | Resource: 1137/2004 | Speaker: IGNACIO GIL DE LA SIERRA COSTS.

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