How to leave an insurance contract empty of content?

abogado defectos contruccion

An insurance contract can be left empty of content through limiting clauses

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However, These clauses can be declared void by the Courts.

In this post we see one of these cases resolved by the Section 1 of the Provincial Court of Córdoba in ruling on 15 June 2020.

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 Community of Owners of La Manzana filed a lawsuit, exercising the action of responsibility for defects and constructive defects, under the protection of Arts. 17 and 19 of the Building Planning Law (onwards, READ), in front of MARIN HILINGER CONSTRUCTIONS, S.L., the construction, and ALLIANZ INSURANCE AND REINSURANCE COMPANY, S.A. (onwards, ALLIANZ).

Also in front of the architects, D. Enrique, D. Ernesto and his insurer, MUTUAL INSURANCE AND REINSURANCE ASEMS, S.A. (onwards, POSITIONS), and the technical architect director of the execution of the work, D. Ildefonso, and your insurer, FIXED PREMIUM INSURANCE AND REINSURANCE MUSSAT MUTUA (onwards, MUSSAT).

Primera Instancia

The Commercial Court No. 1 Cordoba gave judgment on 27 September 2018, partially estimating the lawsuit filed by the Community of Owners of La Manzana.

Appreciated lack of passive legitimation of ALLIANZ and prescription of the action brought with respect to D. Ildefonso and the insurance company MUSSAT.

It jointly condemned CONSTRUCCIONES MARIN HILINGER, S.L., D. Enrique, D. Ernesto and the insurance company ASEMAS, to repair dampness in walls and basement enclosures. It also condemned them jointly and severally to the payment of € 1,174.84 as compensation for the damages related to the garage door and anchoring pilaster.

Also, condemned CONSTRUCCIONES MARIN HILINGER, S.L., to repair the pedestrian paths, the private stairs and to be paid to the Community of Owners of La Manzana, 20.667,12€ as compensation for the repair carried out on the community staircase.

Regarding interests, applied art. 20 LCS.

It dismissed ALLIANZ's conviction on the civil liability insurance arranged with CONSTRUCCIONES MARIN HILINGER, S.L., considering that, in accordance with the exclusive clauses of the civil liability insurance policy, the claim was not within the scope of coverage.

Let's see the detail of the clauses in the Allianz insurance contract whose article 2 established:

“Art. 2. DESCRIPTION OF THE ACTIVITY OF THE INSURED COMPANY: Construcción principal de inmuebles

And Article 3 indicated:

” Art. 3. RISKS COVERED BY THE INSURER AT THE REQUEST OF THE POLICYHOLDER:

A) Secured interest.
A.1 The obligation to indemnify a third party for damages caused by the insured, consequence direct:
3. Civil liability for exploitation, understanding as such what the insured must face as direct consequence of the development of its business activity and in particular:
a) The realization within the business premises, de las actividades propias de la empresa asegurada.

However, the court judge, according to the content of section B) B.1.3.b) understood that the claim did not fall within the scope of coverage.

Section B) established:

B) “Obligaciones no aseguradas:
B.1 Those derived from damages for:
3. Goods of any kind:
b) are the direct object of the Insured's work, good for your custody, handling, transformation, elaboration, repair, installation, transportation or any other manifestation of business activity”.

Thus, if the obligations derived from damages for goods of any kind are not insured, that are the object of the insured's work, el seguro se quedavacío”, as denounced by the appellant. To greater abundance, it was a limitation of rights that was not signed by the policyholder.

Provincial Court

Appeal of the Community of Owners of La Manzana

The Community of Owners of La Manzana filed an appeal, claiming a reason: infringement of Arts. 1, 3, 73 and 76 of the LCS and jurisprudence that interprets them, in relation to the civil liability insurance subscribed between ALLIANZ and CONSTRUCCIONES MARIN HILINGER, S.L.

The appellant considered that the second and third clauses of ALLIANZ's civil liability insurance emptied the object of coverage of content. They were also clauses limiting the rights that were not signed by the policyholder., and therefore did not produce any effect.

The Lounge, in this case, had to decide whether we were facing a delimiting or limiting clause of rights. For this, brought up the STS 14 September 2016 which stated the following:

(…) the first (delimiting clauses) specify the object of the contract and set the risks that, if it occurs, give rise in the insured the right to benefit form the subject of insurance. (…) the limitation clauses restrict, condition or modify the right of the insured to compensation or to the guaranteed benefit in the contract, once the object of the insurance risk has occurred.

(…) The boundaries between them are not clear, and there are even cases in which the clauses that surprisingly delimit the risk are assimilated to those that limit the rights of the insured (SAP Cordoba 715/2013, of 25 November).

(…) The STS 853/2006, of 11 September, feel a doctrine, (…) whereby risk provisions are delimiting those that are intended to define the subject of the contract, so that they materialize: (i) what risks are the object; (ii) to what extent; (iii) for how long; and (iv) what time domain.

(…) the clauses limiting rights are aimed at conditioning or modifying the right of the insured and therefore the compensation, when the object of the insurance risk were to occur. They must meet the formal requirements set forth in the art. 3 LCS, so that should be highlighted in a special way and must be expressly accepted in writing; formalities which are essential to ensure that the insured had an exact knowledge of the risk covered (sentences 268/2011, of 20 April; and 516/2009, of 15 July).”

For the exposed, the Chamber considered that the clauses highlighted by the plaintiff were limitation of the rights of the insured, because it started from what the risk covered by the insurance has occurred (…) but the obligation borne by the insurer is not produced (…), as it is precisely damage to property caused by the work of the insurer in their custody, handling, transformation, elaboration, repair, installation, transportation or any other manifestation of business activity, being really difficult to conceive what would be the risks covered by the scope of the terms of this limiting clause of rights. "

Not having complied with the requirements established by art. 3 LCS, the clause was unenforceable, estimating the appeal of the Community of Owners of La Manzana.

Appeal of D. Enrique, D. Ernesto and ASEMAS

From this appeal, only one of the alleged reasons was upheld, As for the art. 18 READ.

He considered the Chamber, since the damage appeared in 2008 until the conciliation ballot was presented on 16 September 2014, no claim was submitted to the architects, he only went to the construction company, so that, as established by the art. 18 READ, prescribed the liability action against D. Enrique and D. Ernesto, as well as in front of your insurance company, considering this reason for appeal.

For Hearing:

“Namely, given the initial solidarity enshrined in the article 17,3 of the Building Planning Law for the promoter, If the action is directed against the promoter, the limitation period is not interrupted with respect to the other building agents, but if the claim is directed against any agent, the term will be interrupted de prescripción respecto del promotor.

Revoked D's sentence. Enrique and D. Ernesto and ASEMAS.

Conclusion

The clauses limiting rights are aimed at conditioning or modifying the right of the insured and therefore the compensation, when the object of the insurance risk were to occur. They must meet the formal requirements set forth in the art. 3 LCS, so that should be highlighted in a special way and must be expressly accepted in writing; formalities which are essential to ensure that the insured had an exact knowledge of the risk covered (STS 14 September 2016).

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