The cumulative compensation prinicipio personal insurance

clausula limitativa contrato seguro

The clause limits the rights of the insured when several insurance contracts on the same risk is limited and must be taken not to put

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In personal insurance the principle of cumulative compensation operates without proration. A contract term can not prevent the insured can perceive the total sums insured when engaging multiple policies, establishing a compensation scheme including. This would limit the rights of the insured. In personal insurance the insured may demand full compliance with each individual contract.

The Supreme Court, Civil Division, in Case 14 November 2019, with no resolution 609/2019, FIATC has condemned to the payment of the amount insured, plus legal interests Article 20 LCS. For D. Gabriel was hired several insurance policies, covering the risk of loss of license driver. The 13 November 2019, It was declared permanently disabled by the Social Security. At the request insurers corresponding compensatory amounts, FIATC claimed clause included in the one of policies, regulating supplementary insurance as another who had hired the same insured, operating as a supplement to the subscriber under the other contract, to the limit of the maximum guarantee contracted. However, the Supreme Court, after the filing of the appeal by D. Gabriel, alleging infringement of Articles 1288 the Civil Code and 3 LCS, It is estimated the same, considering that a contractual clause that prevents the insured can receive all the sums insured, establishing a system of compensation between different policies, It limits the rights of the insured persons insurance, the insured may demand full compliance with each individual contract.

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

Gabriel, I professional airline pilot, He signed through the insurance broker HWI Spain, S.A., two insurance policies. Covered loss, the final time, driver's license. One of insurance with the insurance company FIATC Mutual Insurance and Reinsurance Fixed Premium (FIATC), in effect since 1 October 2006 to 30 September 2008. The maximum sum insured was 450.700 euros. The other insurance with the company AVIABEL, S.A., since 1 October 2008. A la vez, He had hired another policy with FIATC, through SEPLA, which also covered the loss of pilot's license.

In the first-mentioned policy FIATC, It contained a clause limited coverage, stating that "If an insured driver had hired another loss licensing policy, and was in force when the accident happened, Said policy is regarded as a primary insurance contract. This policy will only pay the excess payable under the primary policy guarantees and only that amount, after being added to the compensation of the other policy, sea igual a la garantía máxima de esta póliza.

Between October 2008 and October 2009, D. Gabriel, incurso in a temporary disability, received monthly amounts agreed in the policy AVIABEL, S.A.

The 13 November 2009, D. Gabriel was declared permanently disabled by the Social Security, losing his license as a pilot. The FIATC policy was hired through the SEPLA indemnified him with 162.273,27 euros.

Gabriel filed suit against HWI Spain, FIATC and AVIABEL, S.A., requesting solidarity condemns payment 450.700 euros, in compensation for permanent loss of license, plus interest as specified in Article 20 LCS.

AVIABEL, S.A., reconvino, claiming D. Gabriel amounts paid during the year he was temporarily incapacitated.

In the first instance it was partially upheld the claim, condemning FIATC to compensate D. Gabriel 288.426,73 euros, which it is the difference between the sum insured and paid by the other policy, and acquitted brokerage HWI Spain and AVIABEL, S.A. He estimated full counterclaim.

On appeal, he dismissed the. He considered that the clause that allowed FIATC, the amount to compensate, It is deducted perceived by that company for the subscription of another policy with the same company, It was a risk clause boundary, not limited.

I was appealed by D. Gabriel, infringement of Articles 1288 the Civil Code and 3 LCS. It was estimated by the Civil Chamber of the Supreme Court.

Primera Instancia

For D. Gabriel filed suit against AVIABEL, S.A., FIATC and HWI Spain, S.A. the 30 September 2010, the resulting competent Court of First Instance No. 8 Las Palmas.

HWI Spain, S.A. FIATC answered and demand, requesting their dismissal. AVIABEL, S.A. He opposed by lack of passive legitimation, requesting that the lawsuit be dismissed and the acquitting. Also made counterclaims, calling for the reintegration of the amount 81.126 euros, in respect of amounts paid to D. Gabriel during the year he was temporarily incapacitated, plus interest.

The Court of First Instance No. 8 Las Palmas gave judgment on 21 February 2013, and partially upheld the claim.

He condemned FIATC to pay the amount of 288.426,73 euros, plus interest under Article 20 LCS from the 9 July 2010 until full payment. He absolved in the rest of the pedimentos. He absolved AVIABEL, S.A. It upheld the counterclaim, condemning D. Gabriel to reinstate AVIABEL, S.A. the amount of 81.126 euros, plus legal interest from the 8 April 2010.

He condemned D. Gabriel to pay the costs incurred by AVIABEL, S.A. and HWI Spain S.A., to FIATC and the plaintiff to pay the costs paid to your instance and common by half.

Provincial Court

The judgment at first instance was appealed by D. Gabriel.

Section 3 of the Provincial Court of Las Palmas gave judgment on 18 July 2016, dismissing the appeal.

The Chamber found that the clause which allowed the agreed amount will be deducted indemnity perceived from the same insurance company, in this case, FIATC, to have another insurance policy taken out with it, It was not a limiting clause, but a clause boundary risk.

Supreme Court

For D. Gabriel appealed. AVIABEL, S.A. he withdrew from the proceedings by submitting written.

The appeal was based on the infringement items 1288 the Civil Code and 3 LCS. D. Gabriel argued that the clause which has reduced compensation sought is limited, non boundary of the risk.

The Civil Chamber of the Supreme Court gave judgment on 14 November 2019 estimating the appeal.

For the Board, the general terms of recruitment used by insurance companies can be: Boundary of the risks covered, or limiting. According to Article 3 LCS, clauses restricting typographically have to stand out and be specifically accepted in writing.

While delimiting clauses, They are intended to delimit the purpose of the contract specifying the risks, The amount, the duration and the time domain, the limitation clauses, “condition or modify the right of the insured and compensation when the subject of insurance risk, It had occurred. " These clauses must meet the requirements set out in article 3 LCS. It must verify that the insured had knowledge of the exact hedged risk.

In this particular case, It was FIATC who included a clause in the individual policy, regulating insurance as complementary to the other had contracted D. Gabriel. The clause stated that It operates as a supplement to the subscriber under the other contract, to the limit of the maximum guarantee contracted.

We are facing a insurance competition in the field of personal insurance. D. Gabriel hired two insurance policies with occupational disability FIATC, one individually and another with SEPLA, collectively. It was considered by the Chamber as a contractual option to cover as much as possible the risk insured against a contingency of a serious nature, such as. D. Gabriel lost the power to exercise professional activity, and therefore it was permanently disabled by the Social Security.

In personal insurance operates Cumulative principle of compensation without proration. The Chamber concluded that "A contractual clause that prevents the insured can receive all the sums insured, establishing a system of compensation between different policies, It can not be conceptualized as boundary of the risk, but, clearly, It limits the rights of the insured, in relation to the natural content of the contract, which means that, in personal insurance, the insured may demand full compliance with each individual contract. "

For all the above, the Civil Chamber of the Supreme Court upheld the appeal.

Resolvió el recurso de apelación en la única pretensión mantenida en el recurso de casación. Condenó a FIATC al pago de 450.700 euros, plus legal interests Article 20 LCS. Estimó el recurso de apelación porque la cláusula era limitativa de los derechos del asegurado. No reunía los requisitos del artículo 3 LCS, ni estaba destacada tipográficamente ni aceptada específicamente por D. Gabriel.

Conclusion

En el seguro de personas rige el principio de indemnización cumulativa without proration. En una contratación múltiple de pólizas donde se asegura el mismo riesgo, no se pueden incluir cláusulas limitativas que impidan que el asegurado pueda percibir la totalidad de las sumas aseguradas, porque limita los derechos del asegurado.

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