Clausulas limitativas del contrato de seguro: Conocer no equivale a consentir

seguro de daños

 

In the insurance contract, knowledge of the existence of a restrictive clause does not imply consent

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So that the limitation clauses in insurance contracts,  are valid and produces its effects, They must be highlighted and must be accepted by the insurer expressly. Mere knowledge of its existence, It does not imply that the accept insured.

A merchant signed a rain damage insurance. Produced damage, the company refused to pay the agreed compensation. He alleged that he had not complied with a clause inserted in the contract forcing the materials were placed at a certain height above ground (10 cm). The insured clause considered as limiting their rights. Also, He had not expressly consented so was invalid.

The 17 June 2019 2nd Section of the Provincial Court of Lleida He dictated his No 324/2019 sentenceIt settled the case by estimating customer demand.

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

an insurance contract was concluded between REALE GENERAL INSURANCE S.A.. (onwards, REALE INSURANCE) and commercial INSERBO S.L.. The contract was to secure four industrial buildings owned by the insured.

The 5 September 2014 there was a strong storm. As a result the rain came through the roof, gutters and bathrooms ship. It caused a series of damage to the installations of the insured.

Produced the insured event (water damage), the insured insurer urged the payment of appropriate compensation. It refused. So INSERBO filed an action for payment against the insurer.

REALE INSURANCE opposed. He argued that the entry of water went under the door and damage should be covered by the Insurance Compensation Consortium (CCS). Damages were excluded from compensation. Also, the general condition of the policy determined that "are covered for damage, “stocks must be placed at least 10 cm about ground level ".

Primera Instancia

The 28 June 2017 the Court of First Instance delivered its judgment No. 3 of Lleida. partially upheld the lawsuit filed by INSERBO against REALE INSURANCE.

He condemned REALE SEGUROS to pay the plaintiff the amount of 235.325,22 euros plus interest of art. 20 LCS.

The sentence considered general condition of the policy as an exclusion or limited rights. So, it consisted not expressly accepted by the insured with the requirements of Art. 3 Therefore LCSy, it was ineffective.

He admitted the existence of damages and that they were derived from accident. On the quantification of damages, They were affected outdated or obsolete materials. These should not be assumed not compensable economic loss to the plaintiff. Therefore, the judge reduced from a starting material the 30%, € 17,956.24 moderating the amount claimed.

Provincial Court

Both sides made appeal.

INSERBO appealed the ruling that the rebate 17.956,24 euros in quantifying damages. He alleged error in the assessment of evidence. He argued that the obsolete and expired material that was affected by water was identified and excluded from the claim for compensation. So that there was no moderate disputed games for damages.

REALE argued in its appeal that the sentence incurred instance an incorrect assessment of evidence. He requested revocation and Absolution. He argued that the applicant tried to deceive and defraud the insurer including his claim expired goods. He added that the cause of the damage was not included in the coverage of auto policy. It was compensation for water inlet their compensation corresponding to the Consortium of Insurance Compensation. The clause requiring that goods be found at 10 cm soil was nonlimiting picture, but bounding warranty.

INSERBO opposed the application of REALE. He denied it attempted fraud, the expired materials was not subject to claim, but he identified and separated from the rest. On the causes of the loss it claimed not to be a case of damage consorciable not fit in the cases regulated in the RD Leg 7/2004 of 29 October. This is because not attend a situation of extraordinary flooding. Clause on the policy, He claimed that did not meet the requirements of Art. 3 LCS. Palletized goods were logistically to manage them so that if they were to 10 cm soil.

In Judgment 17 June 2019, 2nd Section of the Provincial Court of Lleida upheld the appeal of Inserbo and dismissed the Reale.

For Hearing, the judgment was in accordance with the procedural and substantive rules and case law on the subject.

REALE on the allegation that it would be at a loss as consortial damage, no evidence was provided on extraordinary flooding or cyclic storm, whose concurrence is required in the art. 6 del RD Leg. 7/2004 TR Legal Statute of the Insurance Compensation Consortium and Articles 1 and 2 Regulation of the Insurance of Extraordinary Risks (RD 300/2004, of 20 February).

Mere suspicions about the entity of the accident were not sufficient to prove the concurrence of the An exception fraud which exclude the liability of the insurer.

The lack of coverage of the incident not found effects 10 cm soil, Instance judgment of the clause as limitation of rights. It could not be applied to the case atnot meet the requirements of Art. 3 LCS, not be signed expressly or explicitly accepted by the insured, but suffice it that he has delivered the general conditioning.

The insurance broker witness, Sr. Romualdo, He stated that INERBO knew this clause. But it was not proven that out specifically accepted or signed by the insured, it was the requirement of art. 3 LCS.

So, the Court cited the judgment of the Court of Barcelona, 16th section, of 27 December 2018, by which "enough is known legal doctrine ... which proclaims, in the context of the insurance contract, that acceptance of the clauses must be made, well with the firm or with an unequivocal act by the insured which can be inferred consent ... which can not be understood produced with simple possession of general conditions. As they stated by the SSTS 19 December, 31 March and 17 November 1990, “It know not amounts to consent”.

Also, nº273 of the STS 22 April 2016 and SAP nº232 of Lleida 28 May 2015 collected the consolidated jurisprudential doctrine that "the distinction between delimitation clauses and clauses limiting coverage ... the first materialize the object of the contract and the risks set, if it occurs, give rise in the insured the right to benefit form the subject of insurance. While clauses restricting restrict, condition or modify the right of the insured to compensation or the provision guaranteed in the contract, once the object of the insurance risk has occurred”.

So, clauses limiting target rights "condition or modify the right of the insured and therefore compensation, when the object of the insurance risk had occurred. They must meet the formal requirements of art. 3 LCS, so they must be Featured in a special way and have to be expressly accepted in writing; formalities are essential to ensure that the promise had an exact knowledge of the hedged risk(STS 268/2011, of 20 April 516/2009 of 15 July).

Applying the above jurisprudence, It was before a clause that limited the rights of the insured. Restricted and conditioned their right to compensation to the requirement that the goods were placed at a certain height from the ground.

She hearing shared the pronouncement of the first instance judgment about.

Also, an exhaustive account of the goods concerned accompanied by the relevant invoices was conducted. So, the notary conducted extensive sampling randomness.

The Court conducted a joint assessment of the evidence produced (Expert Sr. Vicente, testifical photographs and employees of the applicant). It hearing appreciated an error in assessing the evidence of Judge a quo. This did not take into consideration the instructions of Mr. Perito. Vicente sobre que el material obsoleto o caducado no se incluyó en el cálculo de la indemnización. Ese material fue identificado y separado y así se hizo constar por el Notario en el acta notarial.

Por ello concluyó la Audiencia que no se habían incluido en el cálculo de la valoración existencias sin valor comercial por estar caducadas u obsoletas. Se apreció que la determinación de los perjuicios económicos en 253.281,46€ se ajustaba a la realidad.

La Audiencia consideró que sí eran aplicables los intereses del art. 20 LCS. Las meras sospechas de fraude, no acreditadas, no justificaban por sí mismas la oposición ni la falta de pago de la indemnización.

La Audiencia estimó el recurso de apelación formulado por INSERBO y desestimó el recurso de apelación interpuesto por REALE SEGUROS. Estimó íntegramente la demanda interpuesta por INSERBO. Condenó a la aseguradora a abonar a la asegurada 253.281,46€ de principal, plus legal interests of art. 20 LCS.

Conclusion

Para que las cláusulas limitativas de derechos sean válidas, deben estar resaltadas en el texto y aparecer expresamente firmadas por el aseguro como aceptación de las mismas (art. 3 LCS). No podrá entenderse aceptada una cláusula limitativa por la simple tenencia por el asegurado de las condiciones generales.

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