Three Troubled Issues About Fire Insurance

abogado seguro de incendios

Legitimacy, causality relationship and quantification of damage are the most frequent questions that arise when there is a claim covered by fire insurance

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In this post we review these three points, relying on the Judgment of the Provincial Court of Barcelona (Section 16) of 19 May 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 26 October 2015 there was a fire at the EXAPAL facilities, S.C.P., after the controlled burning of some fruit trees on the neighboring farm, separated by a strip of communal forest.

The owner of the neighboring farm was AGROPECUARIA MONREAL, S.L. Controlled burning started the days 21 and 22 October. He hired the SANIBARS company for this, ALCARRAS, S.L.

Not the contracted company, SANIBARS ALCARRAS, S.L., ni D. Fructuoso, ni D. Ginés soaked the burned remains or verified that the "socas" they threw into the strip, were off. The fire that remained latent in the "socas" was the one that caused the fire in the neighboring farm days later when it came into contact with the dry vegetation.

This was confirmed not only in the expert report issued by D. Martin, but also by the Mossos d'Esquadra and the Rural Agents. Other hypotheses alleged by the defendant were ruled out, like what "The fire started on EXAPAL's own farm and that the phenomenon of methanogenesis or self-combustion by fermentation of alfalfa piled up in the open air".

EXAPAL, S.C.P. filed a lawsuit requesting that he be compensated with 365.000 € por los daños sufridos como consecuencia de la quemacontroladade unos árboles frutales realizada por SANIBARS ALCARRAS, S.L., specialist company hired by AGROPECUARIA MONREAL, S.L., which ended up spreading to his farm.

Primera Instancia

The Court of First Instance No. 29 Barcelona gave judgment on 4 April 2018, estimating the claim filed by EXAPAL, S.C.P. He jointly condemned D. Fructuoso, MAPFRE EMPRESAS, S.A., D. Gines, SANIBAL ALCARRAS, S.L. and AGROPECUARIA MONREAL, S.L., turn out 365.000 € plus legal interests of art. 20 LCS.

The Court considered it to be proven that the fire originated from some "socas" that were not extinguished after the controlled burning. The amount requested in respect of damages was considered well determined, as well as the joint and several liability of the defendants, not being able to individualize each one's guilt.

Provincial Court

Two appeals were filed. One by MAPFRE and its policyholders, SANIBARS ALCARRAS, S.L. y D. Gines (SANIBARS worker), and another by AGROPECUARIA MONREAL, S.L. y D. Fructuoso.

Both claimed the same reasons:

  • first plea: active standing of the plaintiff.
  • second reason: cause or origin of the loss.
  • third plea: passive legitimation attributed to denying all responsibility in the production of the claim.
  • fourth plea: quantification of the claimed damage.
  • Fifth reason: sentence to the payment of the interests of art. 20 LCS.

The Section decided to jointly resolve both appeals.

Right of action

They alleged that EXAPAL, S.C.P. it was an irregular company lacking legal personality for not adopting one of the corporate forms admitted in the CCom, and that those who had active legitimacy were the partners of said society, for having the capacity to be part.

The Section rejected this first reason because the S.C.P. are recognized by our legal system, even art. 6 LECivil recognizes procedural capacity to "entities without legal personality". EXAPAL, S.C.P. was the owner of the burned farm, had its own CIF and subject of tax rights and obligations, Therefore, it did have full procedural capacity to initiate this procedure to claim amounts in respect of compensation for damages..

Cause or origin of the loss

The Section rejected the reason alleged by the appellants, considering that the most convincing version was the one given by the Rural Agents, when they stated that the cause of the fire was "the dumping of" socas "and the remains of fruit trees with latent combustion on the forest vegetation". They thus coincided with the sentence handed down in the first instance.

They came to this conclusion after a visual inspection of the site, as well as the statements of several witnesses and based on a technical report, where the "geometry of fire" was explained, deciding that the origin of the incident was "Due to the burning of plant remains and that partially burned socas can have a latent combustion for days or even weeks that can be activated when the weather conditions change or have a new supply of oxygen."

Quantification of the claimed damage

This was the only reason estimated by Section.

Dismissed the compensation proposed by the plaintiff and estimated in the first instance by Failure to comply with the necessary rigor in the calculations made by the expert hired by said party.

The Section relied on two other expert reports, since both calculated the compensation after attending to the company's accounting and evaluating the initial stocks at the beginning of the campaign, adding homegrown and third party accredited purchases, subtracting sales in the year, Well, the plaintiff, did not contribute at any time during the procedure, not even Single Agrarian Declaration (DUN), neither him "Exploitation Notebook”, Well the first is "A mandatory annual declaration that must be made by every owner of agricultural exploitation, which includes the entire agricultural area, forest and unproductive that is exploited ", and the second, "It is also mandatory to carry, being a record of all phytosanitary treatments carried out on the farm that, therefore, it must specify those applied in the different fields of crops that an agricultural holding has. "

“For alfalfa a valuation of 51.339,26 €, for the fescue of 12.546,48 €, for corn straw from 0,00 €; for the cereal straw 141,35 € and for the chopped corn of 10.082 €. Finally, some expenses of 10.082 € for how much the plaintiff's numbers are accepted for the use of own machinery in the clearing tasks. "

The Section calculated the compensation taking into account the Declaration (DUN) what did EXAPAL do, S.C.P., in 2015, Although the fire occurred in 2012, in the absence of provision by the plaintiff of the relevant documentation, based on the expert report issued by Juan Antonio, when considering it the tightest.

Sued

The reasons alleged in this regard were also rejected by the Section, because he understood that all the appellants acted negligently.

One for not having soaked the remains of the fire with water, another for leaving in the forest the charred roots that contained latent fire, as well as for not burying the socas.

This responsibility should be joint and several, since it was impossible for the Section to specify the responsibility of each of the intervening parties at the time of causing the accident.

Nor did it accept the alleged reason that EXAPAL, S.C.P. he had also been responsible for the production of the fire on his farm.

Interests of the article,,es,LCS and health questionnaire,,es,On the diligence of agents and insurers and the duty of declaration of risk,,es,Breach of the exchange of solar for housing,,es 20 LCS

The Section also rejected this alleged reason, as to the fact that there was just cause to oppose the payment of the compensation claimed, pues el objetivo de ese precepto era sancionar la falta de pago de la indemnización, o de ofrecimiento de una indemnización adecuada tras tener conocimiento de la producción del siniestro.

MAPFRE debía responder de la cuantía indemnizatoria, a pesar de no ser la aseguradora de AGROPECUARIA MONREAL, S.L. ni de D. Fructuoso, pues se regían por las reglas de la solidaridad pasiva (art. 1144 Civil), teniendo a su disposición las acciones de repetición oportunas (Arts. 1145 CCivil and 43 LCS).

Conclusion

Una sociedad colectiva tiene capacidad procesal, and, therefore, locus standi, en aplicación de lo dispuesto en el art. 6 LECivil. Cuando resulte imposible cuantificar o concretar el grado de responsabilidad en la producción del siniestrolos responsables lo serán solidariamente.

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