¿Cláusulas limitativas o delimitadoras del contrato de seguro?

clausulas limitativas

Determining the degree of invalidity insurance damages are delimiters of risk and are not restrictive of the rights of the insured

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The Audiencia Provincial de Madrid understood that the clauses in the general conditions of the contract insurance were aimed at determining the degrees of disability depending on the losses suffered by the insured, and therefore Boundary of the object of the contract and not of the rights of the insured.

This decision was adopted by section 10 of the Provincial Court of Madrid in its judgment 14970/2017 of 14 December.

Under the contract signed between Multiseguro Freelancer D. Peter and ZURICH INSURANCE, that he sued the insurer so that it be ordered by 155,878.50 plus interest of € Article 20 Law of Insurance Contract (LCS) and additionally it requested the condemnation of the payment of € 122,082 plus interest Article 20 de la LCS .

ZURICH INSURANCE The entity is partially paved and acknowledged the amount of 9.897,88 €, as opposed to the rest of the amount was claimed.

Primera Instancia

The Court of the 1st Instance 5 Torrejon de Ardoz sentence 8 January 2016 partially he upheld the claim and ordered ZURICH INSURANCE to pay the sum of 32.428,89 € plus interest.

The ruling was appealed to the Audiencia Provincial by ZURICH INSURANCE for being dissatisfied with:

– The application of the 20% on the sum insured for disability

– The sum insured when the accident occurred

– Calculating the amount for temporary incapacity

– The application of interest Article 20 de la LCS

In turn D. Pedro challenged it because it considered that the particular conditions of the policy envisaged compensation for permanent disability, and established Different types of such failure, and with them it would violate the provisions of the art 3 LCS; ie if the general conditions limited the particular conditions agreed, They would be affected by the invalidity.

Provincial Court

Regarding the consistency of the original ruling, the Provincial Court based its decision on the judgment of the 7 March 2013 of the First Chamber of the Supreme Court which affirmed "vice congruence is to grant more, less or something different than requested, the court incurs, as we have said so repeated, in the forms of incongruity known as ultra petita, Oh claimed without any outside party claimed, potentially revealing the partiality of the court, who decides what nobody asks, or the helplessness of either party”.

As for the validity of the clauses of the contract, the Provincial Court cited the judgment of the Supreme Court of 7 November 2017 He is summarizing the doctrine of limitation clauses and:

delimiters are the provisions of those risks are intended to delimit the purpose of the contract, so that they materialize: (i) what risks are the object; (ii) to what extent; (iii) for how long; and (iv) in that time domain. The rights clauses limiting target condition or modify the right of the insured and therefore compensation, when the object of the insurance risk were to occur; They should be highlighted in a special way and have to be expressly accepted in writing; formalities which are essential to ensure that the insured had an exact knowledge of the risk covered”.

Based on the case law cited, the Provincial Court concluded that in the case study was in front of cláusulas delimitadoras del riesgo and no limiting the rights of the insured, since those contained in the general conditions are aimed at determining the degree of disability based on the losses suffered by the insured, and thus delimiting of the object of the contract and not the rights of the insured.

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