The beginning “against proferentem” in life insurance

seguro de vida

 

The company must assume the consequences of introducing ambiguous and generic clauses, that confusing,  in life insurance

 

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the rule applies “against proferentem” contained in art. 1288 CC when the lack of clarity and precision in the terms of a contract,  confusion is generated.

The Provincial Court of León, section 1, has ruled the 29 July 2019 nº 346/2019, resolved in favor of the insured. two contracts of life insurance and disability were signed. Clauses contained an invalidity generic and ambiguous wording therefore declared invalid determined that ensured "for any reason "; open concept without determining. The insured person was in a position declaado total permanent disability, demanding payment of the insurance provision. The insurance company refused on the grounds that was covered only the total disability. Finally the Provincial Court considered that the policy contained dark clauses which prevented the insured risk really understand that ensured the contract signed.

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

 D. Juan Ramon signed two policies the 6 June 2014 and 29 March 2016 with the insurance company AXA S.A. AURORA LIFE.

These policies were covered risks of death and disability,  “for any reason”.

Later D. Juan Ramon was declared for total permanent disability. Therefore he requested the payment of compensation to the insurer.

The company refused to pay the compensation alleging that the policy only covered as an insured risk statement total disability.

Given these facts D. Juan Ramón filed suit against the insurer.

Primera Instancia

The 14 March 2019 the Court of First Instance gave judgment nº5 of Ponferrada fully dismissing the complaint for lack of hedging claimed.

He argued the sentence was covered disability and not the total permanent disability He is claiming the insured. Also, estimated that The questionnaire was inaccurate and unfair by the insured.

The plaintiff filed an appeal claiming two grounds of appeal of the judgment:

– First: The risk of disability contract covering the risk claimed by total permanent disability and,

– Segundo: There was no bad faith or fraud seen at an imprecise questionnaire.

Provincial Court

The 29 July 2019 Section 1 of the Provincial Court of León gave judgment estimating demand.

The point of contention was whether the contracted policy, the risk is also included by total permanent disability, or if instead it was just covered the total disability.

– On the darkness of the clauses of the policy

The Court noted the STS 425/1999 of 14 May: “According to Article. 135 of the Act (General Law on Social Security) we must distinguish between permanent total disability and permanent total incapacity for all work ... in the policy issued It was intended only disability coverage for all types of work, which can not be confused with the inability for the usual profession.”

However, It considered necessary to refer to the possible lack of clarity and obscurity of the clauses of the policy referred to the risks covered.

It was therefore necessary to consider the STS 225/2018 by which "The application of against proferentem rule contained in art. 1288 CC in the event of lack of clarity, and tries to prevent abuse arising from the confusing wording of the clauses of the contract ...only it is violated if the trial court had ruled that the clause defining the contracted risk is confusing and dark,, a pesar de ello, he had interpreted in favor of the insurance company and to the detriment of the insured.

Auto cited the Supreme Court 10 July 2019, nº 1506/2017, that was the definition of absolute permanent disability in the clauses of a policy "without the wording of that clause could lead to confusion or darkness of any kind ".

Therefore the Court stated that there was a confusing wording of the hedged risk on policies taken. This is because "reference to <<disability for any reason>> It does not correspond to the definition given labor legislation total disability (for all kinds of work) and total disability (for regular work) but introduces a mention must be interpreted ".

It seemed that the invalidity contained in the policy as an insured risk was a broader concept that could include the rest.

Therefore, Yes there was darkness in the concrete definition of the hedged risk and is derived from the use of the concept <<invalidity>> (it was the generic in the Laboral scene) as equivalent to permanent disability and admitting different degrees.

This indeterminacy to include a generic concept was the Because of the darkness of the policy.

The Court considered the case law applicable to the case derived from TS on clauses limiting risk.

– On clauses limiting risk:

The law defined the concept of limiting clause, referencing it to "natural content of the contract, derivative, inter alia, clauses identified by its defining character, the particular terms of the contract and typical or usual range corresponding to the object in accordance with the provisions of the law or regulatory practice " (STS 273/2016, of 22 April).

STS 29 January 2019 He determined that when it was logical coverage of a risk in the policy, excluding this general conditions, without an express acceptance, It should be considered surprising and therefore, limitation of rights.

Case law has also established that, voluntary insurance in accident, any restriction by clauses for which coverage is excluded or limited, would be a limited rights clause insured.

The Court noted the STS 17 April 2018, that although it referred to the accident insurance, was applicable to the prosecution case and according to which: “from the perspective of contractual interpretation, the particular conditions were dark, first by making no mention of permanent total disability and second, because by obviating mention that the insured know how it will be indemnified and that darkness it is to harm the insurer who drafted the contract.

The policies taken out by D. Juan Ramon They were dark not to mention permanent total disability rather than absolute inability to differentiate. Also, It was not mentioned that the latter failure mode was not engaged.

Thus, mentioning the disability in general, no other adjective, It seemed to include every situation of disability.

That darkness was to harm the party who drafted the contract. And, therefore, the interpretation of clauses, producido el siniestro, It must conclude that the incident declaration of permanent disability was itself covered.

The wording of the clause "disability for any reason " He violated the duties of clarity and precision demanded by the art. 3 LCS.

Therefore, for clausulado would have been valid on their face would have been necessary express acceptance of the policyholder. So good, in absence, as was the case, express acceptance of this rule should be applied art. 3 LCS and therefore, have it for not start.

On the health questionnaire:

The Court stated that the jurisprudence configured the duty of risk statement as "a duty of reply or response to ask the insurer, also they fall on the consequences arising from the submission of an incomplete questionnaire.

The determining factor for, It was to see if the questions allowed the policyholder to be aware that this "by not mentioning their pathologies, He was intentionally hiding relevant data for accurate risk assessment ".

In the case prosecuted the two questionnaires submitted were generic and the insurer also asked to be supplemented by medical examinations.

So, The formula used by the insurer in both questionnaires was too general and did not refer to any specific disease or ailment.

There was no justifiable inquiry into health status and circumstances of the insured.

Accordingly, producido el siniestro, the insurance could not cover for not complying with the provision that it was up to him in an inaccurate assessment of the likelihood for, This was because of their own lack of diligence in the insurance.

Therefore the Court upheld the appeal of D. Juan Ramon and ordered the insurer to pay the appellant 137.000 euros, plus legal interests of art. 20 LCS.

Conclusion

Insurers assume the consequences of including, in their policies, dark clauses, ambiguously worded and vague manner and generate confusion in the insured.

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