Health Questionnaire and Life Insurance in Barcelona

Seguro vida Barcelona

 

By hiring a life insurance, the company must submit a complete health insurance and unambiguous

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If the health questionnaire is ambiguous or incomplete, shall indemnify unless he proves the existence of fraud or gross negligence.

The policyholder must respond truthfully and diligently to health questionnaire submitted by the insurance company. Should this not present or is incomplete, It is the insurer who assumes the consequences.

Section 1 of the Provincial Court of Barcelona, in Case 22 July 2019 resolution number 481/2019 He resolved the dispute between an individual and the insurance company with which it had signed an insurance policy life and disability. So, declared secured incapacitated, the insurer refused to pay compensation on the grounds that responded to the questionnaire were hiding pathologies determinants of fact. Finally, the Court ruled in favor of the insured.

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

In 2003  Ms.. Maria Esther signed an individual life insurance with commercial OCASO S.A.

This policy covered the main contingency of death and additional, inter, and permanent disability absolute insured. The guaranteed capital was 30.000 euros.

By sentence 4 November 2010 Superior Court Dña. Maria Esther was declared in situation permanent and absolute incapacity for all work.

On 25 June 2012 Ms.. Maria Esther informed the insurer of the claim and requested payment of the guaranteed capital.

The 9 April 2013 the insurer responded by rejecting his request inaccuracy of the statements of the policyholder in the insurance application questionnaire.

Ms.. Maria Esther filed suit against the insurer OCASO. He alleged that on the date of execution insurance did not suffer from any disease. He stressed that the recognized disability brought in a clinical cause injury. Primarily in a fibromyalgia diagnosed between 2005 and 2006 (years after signing the policy).

The insurance lawsuit objected and argued:

  • exception of fraud He denied because the plaintiff had suffered nervous system disorder, be low over 15 days, take medication and undergo a psychological disorder.
  • Inaction and law because it incurred a concealment of pathologies that caused the invalidity of the contract.
  • The materialization of the risk was not caused by the resolution of the INSS but because of suffering from any disease likely coverage.
  • Existence of bad faith and fraud.

Primera Instancia

The 26 March 2017 the Court of First Instance No. 2 in Mollet del Valles delivered judgment dismissing the lawsuit filed in full.

The judge appreciated the concurrence of fraud in the answers given by the policyholder to the questionnaire so that "the answers provided by the applicant did not conform to the truth and consciously silenced major diseases for your health and at the time of the conclusion of insurance you were well known and had to be expressed to the insurance, for surely They influenced the risk assessment.

Provincial Court

Against judgment, the plaintiff filed an appeal based on the following reasons:

1.- Erroneous assessment of evidence. The plaintiff was occupationally active on the date of the insurance. And, pathologies for which was declared in disability were diagnosed after signing insurance.

2.- Erroneous application and interpretation of the jurisprudence of the Supreme Court regarding Articles 10 and 89 LCS. This is because the health questionnaire that was presented to him was imprecise. Specifically, section 8 f) in fine he referred to "any other disease ". Also it not contains any mention of psychiatric disorders.

The 22 July 2019 Section 1 of the Provincial Court of Barcelona gave judgment upholding the appeal.

The Court referred to the art. 10 Law of Insurance Contracts (LCS) determining that "Taker duty to declare any issues that may affect the assessment of risk is subject to the questionnaire to be submitted and does not depend on its own autonomous will.

So, cited previous decisions that developed that provision.

STS 8 November 2007 señaló que, “Article. 10, instead of conceiving a general and abstract terms the limits of duty of the policyholder to declare all circumstances known to him that may influence the risk assessment, has limited this duty limiting the questionnaire reply submitted assure you the. not a spontaneous or independent duty of the policyholder but a duty to respond to a questionnaire and appears”.

STS 4 January 2008 impinged on the same idea stating that "compliance with reporting obligations imposed on the insured must be assessed in relation to ... the purpose of the contract and the degree of clarity and precision of the questionnaire submitted to it.

STS 16 March 2016 and 4 December 2014, added that "Article 10 Law Insurance Contract has conceived ... más que un deber de declaración, a duty of reply or response taker what is asked by the insurer, ... as it should ask the contractor any data it deems appropriate ".

The latest STS 7 February 2019 stated that "...what the room should look is if the type of questions that were made allowed him to be aware that, by not mentioning their pathologies, I was hiding relevant data for accurate risk assessment.

Therefore, the Court concluded that the obligation of the policyholder to answer the questionnaire was focused and delimited the terms used in the questionnaire and their very existence.

Hence, to be released from the insurance benefit payment was necessary that the questionnaire had been filled out improperly by malice or gross negligence of the insured. Thus excluding situations of minor errors or inaccuracies without malice or negligence grave.

The Court cited the STS 30 May 2018 in which the insured was a psychiatrist and whose performance the High Court did not appreciate malice or gross negligence. So, according to the judgment wondered the insured "Merely generic form if he had suffered or was suffering at that time any disease or intervention that was also <<outstanding>>... ... adjective is provided with a tinge of subjectivity that can not operate to the detriment of the insured”.

And resoundingly he concluded the sentence "... the lack of specificity of the questionnaire should operate against the insurer, because this incumbent upon the consequences of filing a health questionnaire or overly vague or generic, since the art. 10 LCS, in its first paragraph, exonerates the policyholder-insurer of its duty to declare the risk both in cases of lack of questionnaire as in cases ... where the questionnaire is so generic…”.

Then, the Court came to analyze whether the 14 October 2003 when Dña. Maria Esther signed the health questionnaire must manifest the condition that later determined to be invalid.

The medical report from INSS day 25 November 2008 fibromyalgia relevant medical history. But fibromyalgia appeared for the first time outlined in the AN0 2005 and the rheumatology meant having treated since 2006, not before.

Therefore, when the questionnaire was filled by Ms.. Maria Esther this had not been diagnosed with fibromyalgia, resulting inadmissible for the hearing that the intention is to link their ailments with the presence of "chronic pain" that was diagnosed in the year 2003.

About him cuestionario de salud, the Court determined that it contained no questions allowed the insurer the need to review various pathologies that had suffered was represented (early menopause, hysterectomy and oophorectomy, osteopenia…). Therefore, his silence about it could not be a grossly negligent or willful misconduct in terms of art. 10 LCS.

The question 8 f) the health questionnaire on "HISTORY" said: <<Have you had or have a tumor, Cancer, diabetes, PAGE o any other disease not mentioned in the preceding paragraphs?>>.

The Court of Instance held that Ms. Maria Esther must express functional ailments he suffered when he was posed the question. Since the question, in its final, was vague and ambiguous.

Also, on cuestionario de salud there was not any question relating directly to mental health. The question 8 b) the same said: <<Have you had or have a disorder of the nervous system such as seizures, paralysis, loss of consciousness, etc.?>>.

The insured answered no, and answer, according Audience, it was true. He had no obligation to point out that had an episode of depression or dysthymia, This is because these diagnoses They did not have the gravity to be inferred from the question.

The Court cited the judgment of the Supreme Court 30 May 2018 and also 222/2017 for that: “the fact that the policyholder no history of psychosis manifest suffering since long before It did not allow to conclude that he was hiding relevant health data for risk assessment, <<because he was not asked specifically about whether suffering or had suffered disease or pathology to the affecting your mental health>>”.

For all the above, The hearing concluded estimating the appeal and revoking the first instance judgment. He ordered the insurer to pay the plaintiff the amount of 30.000 euros as guaranteed capital. More, legal interest counted since the incident was reported to the insurer.

Conclusion

So you can appreciate fraud or bad faith in the conduct of the policyholder will be necessary to prove that the health questionnaire allowed him to be aware that, by not mentioning their pathologies, I was hiding relevant data for proper risk assessment.

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