Direct action against the insurer of a patrimonial liability of the administration

abogado negligencia medica

In liability insurance, the injured party has direct action against the insurer of the article 76 LCS although the risk covered is a patrimonial responsibility of the administration

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On your claim for compensation for damages, the injured party has the right to exercise the so-called “Direct action" of the art. 76 LCS in front of the insurance company for a claim covered by civil liability insurance. The statute of limitations is two years, according to art. 23 LCS. Y se puede reclamar directamente frente a la misma en vía civil, aunque la indemnización resultase de una responsabilidad patrimonial de la administración.

The 21st Section of the Provincial Court of Madrid issued a ruling on 30 July 2020, with No Resolution 228/2020, partially upholding the appeal filed by Ms.. Sofia in her own name and on behalf of her minor child, Jose Francisco. He revoked the sentence issued in the first instance by No. 41 Madrid. Condemned QBE INSURANCE EUROPE LTD BRANCH IN SPAIN (onwards, QBE), to compensate Dña. Sofia with 1.196.334,24 €, what will accrue, from the date of this sentence, until your complete satisfaction, the interest of the procedural delay of art. 376 LECivil.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

Ms.. Sofia gave birth in 2005 in a public hospital in the Valencian Community, whose patrimonial liability was covered by the company QBE. After an attempted fetal extraction using forceps, a caesarean section was performed, the newborn suffering from severe perinatal asphyxia that caused infantile paralysis.

Ms.. Sofia and her husband, D. Juan Luis, they went to the administrative route, solicitando una indemnización de daños y perjuicios derivada de la responsabilidad patrimonial de la Administración Pública Valenciana. The claim was presented by 17 February 2009 before the Ministry of Health of the Valencian Community. It was understood to be denied due to administrative silence in administrative proceedings.

Ms.. Sofia and D. Juan Luis interponen recurso contencioso-administrativo. The 2nd Section of the Administrative Litigation Chamber of the Superior Court of Justice of Valencia issued judgment on 23 December 2013, estimating the resource. It acknowledged to the appellants that the Public Administration had to compensate them with 800.000 €.

La Administración Pública interpuso recurso de casación para la unificación de doctrina. The 30 October 2017, the Contentious Administrative Chamber of the Supreme Court, He dismissed the appeal.

The 27 December 2017, QBE delivered to Mrs.. Sofia and D. Juan Luis, 800.000 € for compensation for damages.

The 4 April 2018, Ms.. Sofía interpuso demanda, in which he exercised the direct action of art. 76 LCS v. QBE, requesting that the insurance company be convicted, to be paid 1.304.597,25 €, for the substantive and procedural default interest. QBE alleged the exception of lack of standing, the lack of action and the extinctive prescription of the action.

After holding the preliminary hearing, the 12 November 2018, sentence was passed in the first instance.

Primera Instancia

The Court of First Instance No. 41 Madrid gave judgment on 13 November 2018, considering the exception of lack of active standing raised by QBE, and dismissed the lawsuit filed by Ms.. Sofia.

Provincial Court

Ms.. Sofía filed an appeal.

Direct action of the injured party against the insurance company

Esta acción directa tenía un plazo de prescripción de dos años tal y como se establecía en el art. 23 LCS, being insurance for damage liability. Also, was subject to liability on the part of the insured, such as. The absence of liability of the insured made the prospect of direct action against the insurance company unfeasible. Last, This action did not allow the insurer to be condemned to pay a compensation amount higher than the quantitative limit set for the insured.

Responsibility towards the injured party, both the insured and the insurer, I was supportive (Arts. 1974.1 and 1973 CCivil).

Competent jurisdictional order

The Special Chamber of the Supreme Court of the Conflict of Competence has had to pronounce in this regard on several occasions,  corresponde “The knowledge of the compensation action derived from the patrimonial responsibility when it is exercised directly against the insurer of the Administration, to the civil jurisdictional order in case that the action is only directed solely and exclusively against the insurer, while, on the contrary yes, in addition to addressing the insurer, the claim against the insured Administration is also filed, in this case the competence corresponds to contentious-administrative jurisdictional order.

Interest on late payments

Default interest was defined as the voluntary delay in complying with the obligation. The default interest that corresponded to the Public Administration as the patrimonial responsible, it was much lower than the one that corresponded to pay the insurance company that covered the risk against the injured party, for, on this last case, se aplicaba el art. 20 LCS.

Direct action of Mrs.. Sofia

To admit the direct action filed by Ms.. Sofia, la Sala trajo a colación la STS 71/2014, of 24 February, donde se afirmó que se podía ejercitar esta acción del art. 76 LCS en el orden jurisdiccional civil, en reclamación del interés de demora del art. 20 LCS, accrued with respect to the amount of € 800,000 since the final judgment relapsed in the contentious-administrative jurisdictional order, where the patrimonial responsibility of the Valencian Autonomous Public Administration was declared.

Extinctive prescription of the action

La Sala mencionó el pronunciamiento de la STS 71/2014, of 25 February, in which it was stated that “(…) that taking into account the solidarity relationship that exists between the insurer and its insured, the calculation of the prescription must be done, taking as the initial day the one on which the litigation proceeding against its insured was terminated ".

In this particular case, The Chamber concluded that the contentious-administrative process ended on 30 October 2017, when the sentence was passed. For his part, the claim was filed, exercising direct action on 4 April 2018, therefore, the two-year limitation period had not elapsed.

Ultimately, The Chamber rejected the extinction prescription exception of the action.

Partial absence of insurance coverage

The defendant alleged that as Ms.. Sofia was third injured, it was not part of the contract that was entered into between the insurer and the insured, and, therefore, could not exercise the action of art. 76 LCS.

However, la STS 200/2015, of 17 April, He established that “The immunity from direct action to the exceptions that the insurer has against its insured means that it cannot oppose personal exceptions or those derived from the insured's conduct, such as fraud, but if objective exceptions, such as the definition of risk, the scope of coverage and, and general, all the objective impeding events that derive from the law or the will of the parties to the insurance contract ".

Quantitative limit of insurance coverage

Although QBE could oppose the amount of compensation claimed by the plaintiff, responding to the late payment interest of art. 20 LCS that will accrue € 800,000, covered by the contract, the truth is, in that contract, it was agreed that the sum insured per claim was € 20,000,000, above the € 800,000 to which he was sentenced, so it had to face the default interest of art. 20 LCS, which were imposed by legal imperative.

In this case, the interest accrued from the production of the loss, because QBE had knowledge of it from that day, since in the contentious-administrative appeal he was notified as an interested party.


On your claim for compensation for damages, the injured party has the right to exercise the so-called "direct action" of art. 76 LCS against the insurance company for a claim covered by civil liability insurance. The statute of limitations is two years, according to art. 23 LCS. Aunque se cubra una responsabilidad patrimonial de la administración, se puede reclamar en vía civil siempre que se haga solamente frente a la aseguradora.


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