About General Conditions unaccepted in the Insurance Contract

Seguro Responsabilidad Civil

The limitations included in the general conditions of a contract must be accepted to be effective against the insured

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You can not oppose the insured risk the delimiting clauses included in the general conditions of a contract if they have not been expressly accepted.

The Supreme Court, Civil Division, in Case 17 September 2019 (Res. No. 475/2019)  He has spoken in favor of the policyholder in a case restrictive clauses in the general conditions of the policy. The insurer claimed the applicability of restrictive clauses in the general conditions, but these were not accepted, neither explicitly signed by the policyholder. Thus, application was art. 3 Law of Insurance Contracts: These clauses are not enforceable against the injured. If the conditions have not been delivered to the policyholder you can not release this knows its actual content and therefore accepts it.

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

They signed two insurance contracts between the company and the company GROUPAMA ANOIA INVESTMENT PLOT S.L.. (onwards, PLOT). These policies guaranteeing the risks of stocks in the continent and the insured premises. He said premises was leased to the CENTER OF ENVIRONMENTAL S.L. entity GESTIÓ. (hereinafter CGM).

CGM had, and the embroidery, contracted with the company ZURICH one liability policy general. This covered the civil responsibility for the operation and employers, with a limit sinister 1.250.000 euros. The risk in the policy was described as: “Refuse collection services: Waste collection and treatment, mat. inert, sludge, metals, paper, ... carton manipulation, recycling and / or destruction plants themselves or others“.

The 2 May 2011 there was a mechanical failure that caused a major fire that affected the constructive elements of the ship and its stock.

Under contracts signed between Groupama insurance and commercial PLOT, the insurer took over the settlement of claims, indemnifying damage. Fertilizer 446.874,71 euros; 370.308,20 euros for damages on the continent and 76.556,51 euros for damages in stock.

Accordingly, GROUPAMA, under the arts. 43 the LCS and 1101 and 1902 et seq CC, He exercised the subrogation action CGM and its insurance against ZURICH. He asked the sentence jointly and severally to pay him the amount of 446.874,71 euros.

In the process of answering the application, ZURICH company partially smoothed in the amount of 149.008,94 euros for damages on the continent. However, He rejected the claim regarding the damage to the ship stocks.

For his part, CGM merchant requested his acquittal.

The opposition of the defendants focused on questioning the amount of damages and concepts that could be claimed under art. 43 LCS.

Primera Instancia

The 5 December 2013, el Juzgado de Primera Instancia nº 26 Barcelona gave judgment condemning the co-defendants to pay the plaintiff 180.531 euros for damages on the continent and 76.566,51 euros for damages in content.

Provincial Court

Case instance was appealed by ZURICH and GROUPAMA.

The application focused on three ends:

  • The assessment of the damage suffered by the injured, in building and contents, by the fire
  • Incidence of equity rule applied by the insurer to the increase in risk declared
  • Lack of passive legitimacy ZURICH

The 11 November 2016, 11th Section of the Provincial Court of Barcelona gave judgment.

It dismissed the action brought by GROUPAMA and partially upheld the appeal of ZURICH. the contested decision in the sense of condemning CGM and ZURICH to pay the sum of partially revoked 214.573,97 euros for damages on the continent.

The Court considered that no concurred lack of passive legitimation of insurance ZURICH. It based its decision on two arguments.

First, It was not all damaged goods were owned by the insured CGA, operate without, accordingly, the rule of art. 43.2 the LCS that forbade the possibility that the insurer exercised to the detriment of the rights assure that it had subrogated.

Second, ZURICH the policy contained a limiting clause not accepted, either expressly signed under Art. 3 de la LCS, and therefore, It was not opposable to the injured.

Audience added that "no evidence that these general conditions were delivered to the policyholder and be signed ... Consequently, It can not be considered to have been properly integrated into the policysince not being delivered to the policyholder, no knowledge of them was held.

Supreme Courtseguro de incendio

Against the judgment of the Provincial Court was filed on appeal by GROUPAMA, that was not admitted, and by ZURICH, if exceeded admission control.

The appeal of ZURICH was based on a single plea: “Violation of the established case law of the Supreme Court regarding the application of art. 1281 the Civil Code in case of literal interpretation of the clauses of the Articles 3 and 73 of the Insurance Contract Act ".

They cited in particular asset, las SSTS 895/2011, of 30 November, 598/2011, of 20 July; 268/2011 of 20 April and the judgment of the plenary session 11 September 2006 and 15 July 2009.

The thesis of the insurance company was to hold that the general condition 4.1.2.2 the insurance contract subject to the procedure, excluded "claims for damages to things for their preparation are in custody of the insured person or persons who is responsible ". Whereas the clause as delimiting the risk in the general liability form of exploitation.

The Supreme Court, Civil Division, dictated the 17 September 2019, its judgment No 745/2019 dismissing the appeal of Zurich.

Hall cited the art. 3 LCS whereby:

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 that a copy thereof be delivered "

Such provision gathered assumptions incorporation of the general conditions of the contract, Also provided by art. 5 and 7 Act 7/1998, de Condiciones Generales de la Contratación (LCGC).

STS 27 July 2006 with no appeal 2294/1999 he declared the inability to oppose the insured contents of the delimiters risk clauses included in the general conditions of the policy. For on these had necessarily project the will of the insured. So that, “delimiting clauses to risk ... has to project the will, to the extent that comprise the subject matter, and they have to fall back on the consent perfects, which is summarized in need for acceptance thereof prior consent.

Moreover, Article. 5 determined that the LCGC: “The conditions general will become part of the contract when accepted by the adhesive joining the same and be signed by all Contracting. All contracts must refer to the general conditions incorporadas.No may have been understood that acceptance of the incorporation of the general conditions to the contract where the proponent has not expressly informed the adherent about its existence and has not supplied a copy of the same”.

The raison d'etre of this article was that the insured could access the content contractual fully aware of the commitment assumed. Or at least, This had the real possibility and non-formal purchase.

He also referred to his sentence Room 316/2009, of 18 May, by which: “meets art. 3 Act 50/1980 the function of protecting the policyholder, by means of the requirement of a number of requirements that the legislature considers necessary for ensure that, when consents to the perfection of insurance contract, dutifully knows the contents thereof.

Therefore, the standard wording imposed conditions, both general and specific and should be clear and precise.

If there was in the particular or general conditions clauses restricting rights of the insured, these should be outstanding and they are specifically accepted in writing.

The Chamber referred to the judgment of the High Court which declared necessary, the general conditions contained in the risk exclusion clause should be delivered, subscribed and known by the insured. Otherwise there was no need to determine if it was against a limiting or boundary condition, for not the first filter transparency and control was fulfilled.

Conclusion

The clauses included in the general conditions of insurance contracts, not delivered or accepted, have no effect against the policyholder.

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