Direct action against the insurer of the Administration

accion directa contra aseguradora de la administracion


If you exercise only direct action against the insurer of the Administration, It is competent civil jurisdiction

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Cuando se reclama solamente contra la compañía aseguradora de una Administración mediante el ejercicio de la acción directa del artículo 76 LCS, and do not claim to own administrative entity, is competent civil jurisdiction. The start of the administrative process by the Administration itself does not impede trade exercise of civil action directly against the insurance, although there is no firm decision on the administrative law field.

Section No. 17 Provincial Hearing, in Case 3 October 2019 (No. Feature 514/2019), He has dismissed an appeal filed by the insurance company Mapfre against the beneficiary of compensation for an accident occurred on bullfighting. The appellant felt that was the contentious order in charge of clarifying the damages claim and not the civil courts, In addition to finding unacceptable the amount of the petitum.


Ms.. Catalina lawsuit filed 28 July 2016 by direct action of the art. 76 LCS against the company Mapfre, en reclamación de 658.803’38 euros más intereses del art. 20 LCS.

The applicant and D. Ramón formed a stable union couple and lived together until the death of the last, the 4 September 2015. So was his heir. The death of D. Ramon was the result of a catch by the res 18 August 2015 during the course of a bullfighting spectacle in the town of Murchante. The animal jumped the perimeter barrier deep into the area reserved for spectators. The City Council had insured damage with Mapfre. The plaintiff claimed that the poor construction of the enclosure was the cause of the facts, in breach of regulations on the height of the perimeter barrier.

Primera Instancia

The 8 May 2018, the Court of First Instance No. 7 Barcelona, He gave judgment partially estimating demand.

Concluyó el juzgado queThe first of the issues under discussion and was issued an order dated 12.06.2017 which resolved the issue before ruling made by the defendant consistent prejudicialidad, to understanding that knowledge of the matter corresponds to the administration and, if, the courts of administrative litigation. (…) … because the jurisdiction is of the organs of civil jurisdiction, they should assess the possible liability of the defendant Administration, although this should apply the administrative regulations, at the time of the facts, It was the art collection. 139 law 30/1992 (…) …we must proceed to the analysis of the first issue of controversial background, of whether or not there is responsibility of the Administration depending on whether or not it complied with the measures that were required of him. (…) With the information available in the proceedings it must be concluded that the place where the event was done can not be considered non-permanent bullring.

The judge ordered the defendant to pay 224.700 the plaintiff euros, plus interest of art. 20 LCS from the 18 August 2015 to the effectiveness of payment.

Provincial Court

La compañía aseguradora recurrió la sentencia de la primera instancia alegando que la plaza de toros portátil cumplía con toda la normativa exigible. According to the appellant, D. Ramon jumped into the ring to the meeting of the res. Moreover, It was initiated on 24 of August 2015 a record of responsabilidad patrimonial, which he was dismissed by administrative silence without being recourse.

On said direct action was inadmissible for lack of responsibility of the City of Murchante to comply with the applicable standards or exclusive fault of the victim. The sums claimed considered disproportionate. the amount of contracted is exceeded in policies, besides existing franchise worth 300 euros.

For the resolution of the appeal, the Court referred to the section SAP Madrid 11 the 10 April 2018, that its legal basis 8 says:

“En este sentido, we see no conclusive reasons that prevent the injured choose only the exercise of direct action in the civil courts, even after they are initiating administrative proceedings. Can not be classified as fraud law or the acts contradict the possibility of recourse to civil jurisdiction because, precisely, Law tends to provide compensation for the injured by this action. This margin to the exercise of direct action only in the civil jurisdiction responds to a valid reason, at least, which is to avoid further delays that, in fact, the administrative pathway involves. (…)”.

"At the procedural level, the argument loss of action against the insured ignores the procedural autonomy of direct action. The law also assumes the irreversibility of administrative initially chosen, or the need for the administrative appeal with preclusion of the civil suit, lo cual solo se produce en el momento deaccionar” (not before) and, also, if demand jointly to the Administration and to your insurance ( art. 9.4 LOPJ ), not only the case of direct action. At the substantive level, the responsibility of the Administration is declared or denied by a court ruling and, until then, the eventual credit can not give precluded or extinct. "

For Hearing, no estamos vinculados por la resolución administrativa que deniega la responsabilidad patrimonial porque no hay prejudicialidad devolutiva or administrative order effect of res judicata. The administrative decision denying the liability of the Administration, does not suspend the course of civil proceedings or linked because it is not counted those cases where required by law or agreement of the parties ( art. 42.3 LEC contrario).

Tampoco debe apreciarse la existencia de “res judicata”:

“The art. 222.4 of the Civil Procedure Law refers to final judgments by organs of civil jurisdiction when it comes to defining legal relations of such a character, so can hardly be attributed effect of res judicata, even as a preliminary, as decided by other jurisdictions, y menos aún por los órganos administrativos” ( STS 1ª 301/2016, 5.5 ). It would be otherwise, in another case, que la resoluciónfue objeto de recurso contencioso-administrativo, la resolución judicial firme que lo resuelve sí vincula al tribunal civil””( SSTS 1ª 634/2014, 9.1.2015 and 588/2017, 3.11 ; Plenum also 12.1.2015 ).

Jurisprudential doctrine ( STS 1ª 545/2014, 1.10 and juris. Cit.) lleva recordando quethe civil court must order from the presumption of legality of administrative acts, while they are not superseded by the contentious administrative jurisdictional order“. Is, assuming only direct action, by law, It not resolved to preliminary but with the sole purpose arm's. The very existence of direct action calls naturally apply administrative law by a civil court and so has recognized the jurisprudence.

Finally regarding the imposition insurer interests art. 20 LCS, This article does not discriminate on the basis of different types of seizures, so what it was decisive only if the insurer has incurred in arrears, from “birth by the insured of the obligation to compensate third parties for damages caused by an act under the contract whose consequences liable to be insured” ( art. 73 LCS). And the obligation arises, not when a sentence is produced firm, but when it causes damage.

In this case, as we have seen, the reasonableness of the non-payment by the insurance company was unfounded, and I learned of the incident from the first moments, without delivering any amount even if it had proceeded to formulate the same time the opposition, so the indicated doctrine should apply, which he entailed the entire dismissal of its action.


Is viable civil claim exercising direct action Article 76 LCS against the insurer of an Administration. La resolución en vía administrativa no constituye “res judicata” de cara a una reclamación en el ámbito civil.

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