Direct action 76 LCS: only liability insurance

seguro vida

The art. 76 LCS protects the direct action of third persons of the exceptions that the insurer could raise against the insured, only in liability insurance. Non-payment of premium life insurance involves the reduction of compensation but not their total rejection.

 Consult your case now

The Supreme Court, Civil Division, in Case 23 September 2019 (Res. No. 489/2019) He resolved partially upholding the claim of the heirs in case of non-payment of policy premiums. Se impagaron varias primas y, after the accident occur, los herederos legítimos solicitaron, by the application of art. 76 LCS, the declaration of validity of the insurance at the time of the accident. The Chamber considered correct rejection by the insurer as, the direct action of art. 76 LCS is an inherent right of the injured third party against the insurer in damage insurance. While in life insurance, as was the case, you can not go to such action, as the heirs do not have the status of injured, but simply interested. However, partially granted the application, since under Article 95 LCS after the period specified in the policy which may not exceed two years, nonpayment results in reduced compensation but not its complete abolition.


The 24 July 2007 D. Roberto signed with VidaCaixa S.A. de Seguros y Reaseguros un contrato de seguro de vida anual renovable.

The policy contract covering the risk of death with an initial sum insured 115.000 euros.

Also, dicho seguro se vinculó al préstamo hipotecario que D. Roberto had made with La Caixa and for this reason, the credit institution designated as first beneficiary.

The policy is renewed annually at maturity on dates 1 August 2008, of 2009 and 2010, sin que para la renovación fuera obstáculo el pago tardío de alguna fracción mensual de la prima anual.

To get to 1 August 2011, the insurance is renewed for the following annuity by paying the corresponding monthly.

D. Roberto died 12 December 2011.

On that date, the capital of the outstanding mortgage loan amortization amounted to 99.717,92 euros.

The 27 December 2011, the brother of the deceased, as verbal president of his parents tried through notarial pay the said monthly unpaid. But, the lender refused payment beneficiary.

The 1 March 2012 the insurer sent a letter notifying that "He had completed the period of suspension of guarantees for non-payment of premiums ". And, for that reason we proceeded to the cancellation of the policy to date 1 March 2012.

The 4 October 2013 D. Nicanor and Dña. Crescencia (parents deceased insured) filed suit against VidaCaixa. They requested the repayment of outstanding principal of the loan which was linked insurance, the date of death of D. Roberto and amount of 99.171,92 euros.

Specifically, alleged:

  • The insurance was in force at the time of death D. Roberto because, He had been renewed annually with the consent of the insurer.
  • Que el impago de las mensualidades de los meses de septiembre a diciembre de 2011 not deprive the incident coverage. Especially when in previous years they had consented arrears.
  • Until March 2012 the insurer had not communicated that the insurance had been canceled.

Primera Instancia

The 8 October 2014 el Juzgado de Primera Instancia nº 11 Seville gave judgment and dismissed in full the lawsuit filed.

The judge concluded that, to the installment payment of the premium he has been accepted, and the first fraction consisting paid and unpaid the following, It was applicable the second paragraph of art. 15 LCS.

This is because the jurisprudential requirements are met for the application of Article: culpable default or attributable to the insured and the insurer in good faith.

Accordingly, the judge understood that, the death of the insured lacked coverage during the period when it was suspended.

Article 15

If the policyholder because the first premium has not been paid, or the single premium has not been at maturity, the insurer is entitled to terminate the contract or to demand payment of the premium legal means based on the policy. Unless otherwise agreed, If the premium has not been paid before the loss occurs, the insurer is discharged from its obligation

In case of nonpayment of one of the following raw, insurance coverage is suspended one month after the day of maturity. If the insurer does not demand payment within six months following the expiration of the premium it is understood that the contract is extinguished. In any case, the insurer, when the contract is suspended, it may require the payment of the premium for the current period.

If the contract shall have been resolved or terminated in accordance with the preceding paragraphs, coverage will become effective at midnight the day the policyholder pays the premium.

Provincial Court

Instance against the decision was filed by the actors, appeal.

The 12 November 2015, 6th Section of the Provincial Court of Seville gave judgment by which upheld the appeal filed. Likewise, He overturned the ruling and upheld the claim.

The Court stated that the dispute was promoted by the heirs of the deceased, who exercised the direct action of art. 76 LCS.

Article 76

The injured party or his heirs will have direct action against the insurer to demand compliance with the obligation to compensate, without prejudice to the right of the insurer to repeat against the insured, if it is due to willful misconduct of this, damage or injury to third. Direct action is immune to the exceptions that may apply to the insurance against the insured. The insurer may, however, oppose the exclusive fault of the injured party and personal exemptions have against it. For the purposes of the exercise of direct action, the insured is obliged to state the injured party or his heirs the existence of the insurance contract and its contents.

According to the interpretative art jurisprudence. 15.2 LCS, “from the month following the non-payment of the next premium and during the following five insurance coverage would be suspended ... but the suspension of insurance coverage would not operate against the third party would exercise direct action of art. 76 LCS, in so far as it provides that <<direct action is immune to the exceptions that may apply to the insurance against the insured ".

Also, added the statement that the appellants were offered to meet the first unpaid so, for them the incident was itself covered.

Supreme Court

Against the judgment of the Court, la aseguradora demandada interpuso recurso de casación y extraordinario por infracción procesal.

The appeal was articulated in a single motif and was based on the infringement by misapplication of art. 76 LCS Law 50/1980, of 8 October Insurance Contract.

The insurer understood that the decision of the High Court opposed the doctrine of the Supreme Court about the nature and basis of direct action as a right of the injured third party against the insureracción que solo era reconocida en el seguro de responsabilidad civil.  The direct action of art. 76 LCS supposed to recognize the injured third party a personal right to claim from the insurer to pay compensation. Solo era aplicable en las reclamaciones sobre seguros de responsabilidad civil.

Insured parents were actively legitimated interest of the secured payment of compensation. Máxime porque contaban con un interés legítimo derivado del propio insurance contract. Therefore,  los actores pidieron en la demanda realmente el pago de la indemnización con destino a la cancelación del préstamo vinculado.

The 23 September 2019, the Civil Chamber of our Supreme Court handed down its judgment No 489/2019, by which part the appeal.

Insurance satisfy a common or shared interest between the bank, the insured and the heirs of this as successors to their rights, but also on its obligations.

He noted that the art. 76 LCS was specific standard of liability insurance it was regulated in Section 8 of Title II of the LCS (Damage Insurance). And, in return, insurance whose effectiveness was requested in the lawsuit was a life insurance, regulated in Section 2 of the Act (Sure people).

Como argumentaba la aseguradora, the plaintiffs did not have the status of injured third parties Art. 76 LCS, sino que solo tenían la condición de interesados en la efectividad del contrato de seguro en cuanto a herederos.

Not It was applicable except Art. 76 LCS to not be a liability insurance (STS 357/2015, of 30 June, 472/2015, of 10 September, 374/2016, of 3 June, 58/2017, of 30 January 684/2017 of 19 December).

However, assuming the instance, Chamber applied Article 95 de la LCS:

Article 95

Once the deadline has expired provisions in the policy, which it may not exceed two years from the term of the contract, 2nd paragraph does not apply Article 15 for nonpayment of premium. From this period, nonpayment of premium produce insurance reduction according to the table of values ​​inserted into the policy.

Insurance reduction is also produced when requested by the policyholder, After expiry of that period.

The policyholder is entitled to the rehabilitation of the policy, anytime, before the death of the insured, for it must meet the conditions set in the policy.

Thus, partially it demand estimated under existing table values ​​in the policy, al haber transcurrido más de dos años desde el inicio de la vigencia del contrato de seguro. Se condenó a la aseguradora a cumplir y hacer efectivo el seguro de vida aunque reduciéndolo conforme a la referida tabla.


 La salvedad del art 76 LCS frente al impago de las primas del seguro, It does not operate in personal insurance, sino que es propio de los seguros de responsabilidad civil.  Transcurridos dos años desde la contratación de la póliza, non-payment does not eliminate the right to compensation but carries its reduction.

 Consult your case now

Leave a Reply


Set as default language
 Edit Translation

Subscribe to receive a book PDF

Just for signing up receive via email the link to download the book "How to change lawyers" en format digital.
Sign up here

Sígueme en Twitter

Subscribe me

* This field is required