The concept of permanent disability as a limiting clause

 seguro incapacidad

If the type of disability is restricted by the cause,  the severity of the injuries or their degree, we are faced with a limitation clause that must be expressly accepted by the insured

 

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They are stipulations risk delimiters those whose purpose is to define the object of the contract, determining the risks that constitute the object of the contract, The amount, the term and temporal scope. However, the limitation clauses rights are aimed at conditioning or modifying the insured's right, as well as compensation when the risk had occurred. These limiting clauses must comply with the formal requirements established in art.. 3 LCS.

Section 1 of the León Provincial Court has passed sentence on 6 March 2020, with n.º of Resolution 164/2020, partly considering the appeal filed by D. Nicholas, by inclusion in the life insurance contract of a clause limiting rights that was not accepted in writing by the appellant.

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

For D. Nicolás hired a life insurance policy the 15 March 2010, with the insurance company AXA AURORA VIDA, S.A. Life insurance included the corresponding coverage and capital in the event of disability for any reason.

D. Nicolás was totally permanently disabled through the INSS Resolution of 12 May, ratified in 2017, for a series of diagnosed physical ailments.

Filed suit against AXA AURORA VIDA, S.A., asking 200.000 euros, under the contracted policy.

Primera Instancia

The Court of First Instance No. 2 Ponferrada sentenced the 22 May 2019, refusing the application.

Provincial Court

D. Nicolás filed an appeal. He alleged:

1) That the policy provided for coverage of disability for any reason.

2) That the clauses of insurance contracts must be interpreted based on the principle "in dubio pro insured”, in case of darkness or insufficient light.

The section, to analyze the "invalidity for any reason" clause, brought up, the provisions in the art. 3 LCS, in which it is collected that "The general conditions, that in no case may have prejudicial nature for policyholders, shall be supplied by the insurer in the insurance proposal and if any policy necessarily in the contract or in an accompanying document, to be signed by the insured and which deliver a copy of it. The general and particular conditions they will be written clearly and precisely. They will be highlighted in a special way the clauses limiting the rights of policyholders, que deberán ser específicamente aceptadas por escrito.”

The STS 6/02/2017, rec. nº 2709/2016, He established that "The requirement that the limitation clauses of rights be highlighted in a special way, responds to the purpose of that the insured has an accurate knowledge of the risk covered by the policy. The important thing is that limiting clauses must allow the insured to understand their meaning and scope to differentiate them from those that do not have that nature (STS de pleno 402/2015 of 14 July).”

He highlighted a sentence handed down by the Hearing itself, for presenting many analogies with the case, the SAP Leon of 29/07/2019, roll nº 313/2019, in which it was determined that

“(…) in this case yes there is darkness in the specific delimitation of the risk covered, for the use of a concept that does not correspond to the usual ones derived from labor legislation and that is also increased due to the lack of correspondence with the concepts expressed in previous applications. The darkness derives from the use of INVALIDITY concept which it is the generic in the workplace as equivalent to Permanent disability that admits different degrees depending on the impact on work capacity that may be relative to the usual profession or to any professional activity, as well as great disability that also implies the need for third-party assistance to carry out the most elementary acts of life. Therefore, this indeterminacy in the delimitation of the risk with the inclusion of a generic concept is the cause of darkness in the policy, starting point that also implies that this Court considers applicable to the case the jurisprudence derived from the TS Judgments on risk limitation clauses, (…).”

On SAP itself, it was also established that:

“(…) a confusion among the particular clauses that specify the contracted guarantees (INVALIDITY FOR ANY CAUSE) and disability description that violates the duties of clarity and precision which requires art. 3 LCS. Under this characterization, the express acceptance of the policyholder would have been necessary, so that, in his absence, we must apply the effects provided in the art. 3 LCS and, therefore, take it for not put. This precept requires that they be highlighted in a meaningful way and that they be expressly accepted in writing, (…).”.

For all the above, the Section partially granted the appeal, for not appearing duly accepted and highlighted said clause, because what was intended was to limit the rights of D. Nicholas.

He did not consider the appeal regarding the accrual of late payment interests in art. 20 LCS, for, according to doctrine established by the TS in this regard, "The process is not an obstacle to impose interests on the insurer unless there is a genuine need to go to litigation to resolve a situation of uncertainty or rational doubt about the birth of the obligation to indemnify itself." (STS 05/07/2016).

Namely, it was not appropriate to apply this type of interest because it was necessary to resort to a judicial procedure to determine whether or not the insurance contract covered D's claim.. Nicholas. Although he did recognize the interests of art. 576 LECivil, from the date of the sentence.

Conclusion

As provided for in art. 3 LCS, the limiting clauses of the insured's rights must be specifically accepted in writing. And in the darkness of a clause, its interpretation must be made for the benefit of the insured.

 

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