Cláusulas limitativas territoriales en el contrato de seguro

clausulas limitativas

Limiting the coverage of an insurance contract to the national territory can be considered a limitation clause and the requirement required “double signature”

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In this entry, We review a case in which he was sentenced to Axa Seguros Generales, S.A. Insurance Authority to pay full compensation, considering that coverage exclusively on “National territory” It was a restrictive clause of the insurance contract and the requirement of having not completed the “double signature” Item 3 LCS, had no effect.

We refer to the decision of the 5th Section of the Provincial Court of Oviedo in its Judgment 43/2018, of 1 February.

Antecedentes

Forest holdings Souto Carrillo S.L.. He had several insurance policies with Axa General Insurance S.A.. Insurance and Reinsurance, among which included a machinery breakdown insurance, one second liability insurance of its activity and a third global insurance compulsory circulation.

On date 10 October 2016 on 21:20 a tractor hours Property Holdings Forest Souto Carrillo S.L.. he suffered an accident near the Portuguese town of Viana do Castelo, with significant material damage, both the tractor unit and the trailer (the company rented Caleras of Moeche S.A.U.). Axa took only transport the tractor and moved from Porto to paying the bill a workshop crane.

Axa subsequently informed Explotaciones Forestales Souto Carrillo S.L.. that the loss would not be served by any of the policies taken, so the company had to compensate Caleras of Moeche, owns the trailer for damages.

Forest holdings Souto Carrillo S.L.. Axa Insurance sued claiming damages and expenses incurred trailer Caleras Moeche, It is having compensated the injured party based on the policy of insurance of circulation and liability policy for their business, covering both the damage caused to third parties that the applicant had already indemnified them. Also claimed the own damage the tractor unit based on policy machinery breakdown, covering the damage that. Axa's conviction and the payment to the applicant requested 50.870,64 €, of which 43.423,48 € they corresponded to damage the tractor.

The applicant stated that he had no policy concerning machinery breakdown insurance because it was never delivered and before the request for preliminary proceedings to obtain documents al respecto, He did not show the signature or endorsement of Forest Holdings Souto Carrillo S.L..

Axa Seguros argued in his defense, the machinery breakdown covering the risk of tractor trailer within Spanish territory and he presented the documents of the general and special conditions of insurance. Only the particular conditions were signed by the insured. He said the liability insurance guarantee not own damage, the policy for damage to third parties had not included causing the accident registration and insurance circulation tractor accident did not include themselves or damage caused to things transported.

Primera Instancia

The Court of First Instance No. 10 Oviedo, in Case 8 November 2017, partially he upheld the claim and ordered to Axa Insurance to pay the plaintiff € 7,447.16 plus interest of art. 20 LCS, excluding damage to the tractor € 43,423.48 head because he understood that the particular conditions policy machinery breakdown It was established as a limit coverage in national territory and every time the accident occurred in Portugal, damages were excluded. The complaint filed by Damage to Third Parties, namely, The workshop on transport trailer and damage caused to it.

The plaintiff appealed the judgment of first instance seeking full compensation for the damage to the tractor to understand that with Axa Insurance policies taken as a whole, leaving evidence of the will to ensure full and without geographic limitation, card having international freight. He reiterated that General Conditions were not signed by the policyholder and it is in them that substantiate its limitation Axa Insurance.

Provincial Court

The Provincial Court in its argument cited several judgments of the same Chamber, in support of its decision.

So, in Case 22 May 2017 dijo:

Finally, As for the question also invoked in the alternative whether the exclusion clause operative may be indicated for the purposes intended by the insurance,…It should be noted that the same, to be limiting the rights of the insured, It is subject to the acceptance requirements required by Article 3 Law of Insurance Contract (RCL 1980, 2295), whereby they have to stand out in a special way and 'must be specifically accepted in writing', what the doctrine and jurisprudence call the 'principle of double signature': a, on the Contract globally considered, and one for the clauses limiting the rights of the insured”.

And Judgment 9 February 2017:

Regarding the requirement that qualifying clauses must be "especially accepted in writing ' (…) As it noted above, the firm should not appear only in the general contract, but in particular conditions which it is the document where usually clauses limiting rights should appear. STS 17 October 2.007 (RC 3.398/2.000) considered fulfilled this requirement when signing the policyholder at the end of the particular conditions and the 22 December 2.008 (RC 1.555/2.003), compliance admitted by referral policy to a separate document in which they appeared, duly signed, duly prominent limitation clauses. Under no circumstances demanded by this Court a signature for each of the restrictive clauses'”.

In the latter judgment, Hall said that while it was true in the particular conditions appeared the signature of the insured, pointing in the same accepting clauses limiting the Terms and conditions, these last They are not signed or not containing the risks excluded outstanding letter and paragraph of the special conditions which includes an extract from the general conditions, lowercase and without highlighting, does not mention the risks excluded; which he led the Chamber to consider the demands of art. 3 the LCS would not have been fulfilled.

In the specific case study, the Chamber considered significant similarity to the indicated sentence, Taking into account that the particular conditions appeared signed by the insured and general not, being in evidence in the preliminary measures the actora known not said conditioned.

He cited the judgment in the same room 19 May 2008 in which it was stated that "the binding force of any general condition lies in the acceptance by the policyholder, for which purpose and attention to the nature of these contracts as contracts or accession mass, Article. 3 LCS has its clear and precise wording and the acceding signed the declaration has received, known and has established its contents”; this is the control of inclusion (not content) which states that for any particular or general condition, It is necessary to have clear and accurate, depending on whether or not restrictively, It must ensure the possibility of actual knowledge by the policyholder and their inclusion is required in the policy or other document that should have been served with a copy to the insured, and for limitation clauses, en palabras de la Sala “A special call by highlighting specific attention and acceptance by the insured…, as noted by the judgment of the 1st Chamber of TS 7-7-2.006, the failure to collect the insured insurer signature with the delivery of the supplementary document containing the general conditioning makes it fall on the burden of proof of actual knowledge by the insured.

the Provincial Court also referred to the formal or consensual nature of the insurance contract and stated that the lack of signature on the document does not affect its perfection and efficiency, however, the document if you have an evidentiary function on the content of the agreement, so that the negative consequences of the absence of the document borne by the insurer who is obliged to deliver.

Conclusion

In view of the above, the Provincial Court upheld the claims of the appeal for the following reasons:

1.- In the particular conditions of the policy was unclear as to whether the "state machinery" referred to the place where it will be located or the place of the accident and Article. 3 the LCS points to the need for clauses are drafted clearly and precisely so that they can understand the coverage and guarantees and exclusions. In the case study, related to the geographical location of the machinery clause was not highlighted in any way.

2.- In the particular conditions mentioned that "The policyholder declares receive along with these particular conditions the general and special conditions and specifically accept clauses limiting the rights of the insured appearing highlighted in the text of the same", but general conditions where the risks were not were signed by the insured, It is also a limiting clause, and it is therefore the nature of the risk object as the object of the activity itself developed by the plaintiff.

3.- Illogical limit the national territory when international transport is performed.

Ultimately, the judgment of the first instance married, It is fully upheld the claim, Axa Seguros Generales condemning, S.A. to pay the appellant the amount of 50.870,64 €, plus interest of art. 20 de la LCS, with imposition of the costs of the first instance the defendant.

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