clauses limiting liability insurance

clausulas limitativas contrato seguro

 

Failure to comply with the requirements for the validity of the restrictive clauses in the insurance contract invalid and entails the obligation to indemnify the insurer

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In insurance contracts it is often the existence of clauses limiting risk. Such clauses can be used by insurance companies to avoid paying compensation. Appropriate advice can verify whether these limitations clauses are null and therefore, demand payment of the insurance indmenización. In this post we see a resolved case by the Provincial Court of Pontevedra.

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.

The 4 September 2013, VIMAR 13, S.L. conducted some works consisting in the execution of ditches for underground pipes in order to sanitation. Excavator shovels hit a medium voltage cable, causing damage to several companies in the industrial estate where executed.

It was requested that such damages were covered by the insurance company AXA GENERAL INSURANCE, Inc. insurance, denied compensation,  based on the provisions in the insurance policy. The clause at issue provided as follows:

  • “….RC covers that may result from damage to buildings or underground pipes if the insured can justify irrefutably that it had requested with minimal advance 10 working days the start of work, although such management would result fruitless, layout drawings or distribution agencies and entities that may be affected by the work.. If because of the emergence of the work it has not been possible to apply the plans in advance required, the guarantee is maintained by doubling the planned franchise in general present and the obligation secured by attaching the claim report written document of the body or entity competent justifying the reason for the emergency and informing the order date and duration of work prevista.

Axa sought to avoid paying compensation for breach of that clause, which required, with a minimum of 10 business days, they had requested the site plans or distribution agencies and entities. For urgent jobs impossibility of compliance with the deadline,  but the guarantee would be maintained by paying the insured twice the exemption provided for in the contract.

the insured not being in any of the two circumstances, They denied compensation.

Primera Instancia

The 19 December 2017, sentence was handed down by the Court of First Instance No.. 3 O Porrino (Pontevedra), in which the lawsuit was dismissed by the representation of VIMAR 13, S.L.

Provincial Court

In its judgment of Section 1 of the Provincial Court of Pontevedra 7 October 2019, It upheld the appeal. The resolution, the room distinguished between clauses limiting rights and limiting the risk of insurance contracts.

Rights clauses limiting condition, restrict or limit the right of the insured, while taking into account their special characteristics. The Court cited the STS 234/2018, of 23 April, systematizing the doctrine of the requirements for the effectiveness of restrictive clauses namely:

(i) They should be highlighted in a special way
(ii) Accumulatively, They must be specifically accepted in writing; It is essential for the fi rm taker, it is not enough to appear only in the general contract, but must fi gure also in the particular conditions. Now, it is sufficient that the fi rm is affixed to the fi nal conditions individuals and remission of the policy is also supported by a separate document, if it is signed and fi clauses restricting him appear properly highlighted. (iii) They should appear in the conditions individuals and not in the general conditions, even though in the latter the policyholder declare know those.
(iv) L wording of the clauses must meet the criteria of transparency, clarity and simplicity.

In return, the delimiting clauses risk is reflected in the general conditions, objectively establishing what specific risks covered by the entity and that are in relation to the object of the contract. Therefore, sufficient consent of the insured, It is indifferent location. No requieren del requisito de la “double signature” que sí se exige a las cláusulas limitativas de derechos.

In this case, ententía what the insurance as a risk boundary clause, It was not such. The clause requiring the application by the insured plans to get coverage was a limitation on the right to the customer.

Once regarded as limiting clause right,  it was verified that the requirements were not met in the art. 3 of the Law of Insurance Contracts. In consecuense, the provision was void and the insurer was ordered to pay.

Thus, Finally, Axa condemning demand was estimated payment of EUR 16.383'31, plus interest Article 20.4 the LCS and to pay the costs of the first instance. 

Conclusion

For any claim, we recommend the advice of an insurance lawyer. Insurance contracts may have restrictive clauses, in breach of the requirements, shall be null and therefore, the insurer shall indemnify.

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