Surprise exclusion clauses and fire insurance

seguro de incendio

The coverage exclusion clauses “surprising” receive the same treatment as the limiting clauses in the insurance contract

 

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The limitation clauses rights must be expressly accepted by the insured party to be valid. Otherwise, will be considered not put.

Section 6 of the Seville Provincial Court has resolved one of these cases in its judgment on 25 May 2020, with No Resolution 164/2020, dismissing the appeal filed by REALE GENERAL INSURANCE, S.A., after considering that the exclusion clause was a limiting clause, surprise. Not being expressly accepted by D. Artemio, lacks validity. The limiting clause was deemed not to have been, having to compensate with 33.500 € for the loss of the irrigation gums after the production of the fire on your farm.

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 5 March 2015, D. Artemio signed an insurance policy with REALE SEGUROS that covered, among other risks, the fire.

The 11 September 2016 a fire broke out on his farm, where some irrigation gums were damaged.

REALE SEGUROS refused to pay him any amount for said tires, alleging that they did not fall within the scope of the policy.

D. Artemio filed a lawsuit against REALE SEGUROS, claiming a compensation amount of 33.500 €, coinciding with the assessment of irrigation rubbers damaged in the fire. I thought I was inside the insurance, well he, at the time of negotiating the conditions, was really interested in including those irrigation rubbers among the insured assets.

However, REALE SEGUROS opposed the lawsuit, because they understood that said coverage was specifically excluded.

Primera Instancia

The Court of First Instance and Instruction No. 2 Estepa sentenced the 13 July 2018, estimating demand D. Artemio. Condemned REALE SEGUROS to pay D. Artemio 33.500 €, plus interest of art. 20 LCS.

The Court brought up jurisprudential doctrine on the difference between the limitation clauses and risk delimiters, to conclude that REALE was aware that D. Artemio wanted to insure those irrigation gums that were damaged in the fire. The fact of excluding them in one of the clauses of the policy should have been expressly accepted by D. Artemio, and did not do it.

Provincial Court

REALE SEGUROS filed an appeal. He alleged two reasons: error in the evaluation of the evidence and in the interpretation of the contract and opposed the imposition of the default interest of art. 20 LCS.

Assessment of the evidence

The Chamber examined the evidence provided by both parties. Focused on analyzing the underwritten policy, as well as the documentation of the negotiations prior to the insurance subscription. He understood that the clause on the “agricultural trousseau”, it also included the coverage of the irrigation rubbers.

For the Chamber it was logical that D. Artemio will not request any clarification of what is included in that clause of the policy, because it could be understood that they were insured within it.

Limiting and limiting clauses

The Section rejected the motive..

The jurisprudential doctrine of the STS 12 December 2019, in which it was expressed that "A distinctive criterion used to determine the concept of limiting clause, is to refer it to the natural content of the contract, this is "[…] of the typical or usual scope that corresponds to its object in accordance with the provisions of the law or insurance practice. In this sense, the condition of limiting a la surprise clause that deviates from said content. (…) «[…] even there are assumptions in which the clauses that surprisingly define the risk are assimilated to the limitations of the insured's rights»”.

According to STS 273/2016, of 22 April, it was pointed out that “(…) These clauses may be valid, but for this it is required that the insured has known the restrictions they introduce -that is, not surprise you- and reasonable, that they do not empty the content contract and that they do not frustrate its economic purpose and, therefore, not be deprived of their cause […] Precisely when there is a contradiction between the clauses that define risk and those that limit it, it is when a surprising exclusion can occur ”.

“(…) When a certain coverage of a claim is objectively and reasonably expected by the insured, for constituting a natural benefit of the arranged insurance modality, it is necessary that the pre-established restriction has the additional guarantee of knowledge implied by the regime of the limiting clauses, so the contractual effectiveness of the surprise conditions is conditioned to the requirements of the art. 3 LCS.”

Ultimately, the Section considered that the exclusion clause was surprise to D. Artemio, applying the same regimen as to a limiting clause. As this clause was not accepted by D. Artemio, was taken for not.

Default interest art. 20 LCS

The Chamber rejected the motive after considering that it could not consider its opposition justified, it was based on a surprise clause that was not expressly accepted by D. Artemio in order to avoid its indemnification obligation

Conclusion

Las cláusulas de exclusión de la cobertura “surprising” deben recibir el mismo tratamiento que las cláusulas limitativas. If they are not expressly accepted by the insured, are not enforceable by the insurer.

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