Statement of risk in life insurance

declaracion riesgo

The risk statement is a response duty to ask the insurer whose failure could have serious consequences for the insured

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The 11th Section of the Audiencia Provincial de Barcelona, in Case 27 November 2019 (Res.nº 6 62/2019), He resolved in favor of Ms.. Flora, the first beneficiary of the seguro de vida hired by D. Valeriano, dismissing the appeal filed by ALLIANZ, COMPANY INSURANCE AND REINSURANCE S.A., considering that the insurance company fall on the consequences of having carried out a health questionnaire incomplete. It also justifies the surcharge on arrears prescribed by law as a mechanism to facilitate the rapid settlement of claims by insurers.

Antecedentes

For D. Valeriano was signed on 21 June 2012 a policy seguro de vida in the case of death (60.000 euros), comprising first recipient Dña. Flora.

After the death of D. Valerio day 5 December 2016, Ms.. Flora claimed to the insurance company the capital of the life insurance policy in case of death signed the decedent. However, He was denied. Ms.. Flora filed suit against ALLIANZ, COMPANY INSURANCE AND REINSURANCE S.A. Claim amount.

The defendant opposed the demand.

Primera Instancia

By Court of First Instance No. 8 Barcelona se dictó sentencing 1 February 2018, estimating the lawsuit filed by Ms.. Flora, stating that "Estimating the lawsuit filed by Ms.. Flora contra ALLIANZ, COMPANY INSURANCE AND REINSURANCE S.A., I declare the defendant's obligation to deal with coverage underwritten life insurance policy D. Valeriano in date 21 June 2012, by virtue of his death, and I condemn ALLIANZ to pay the plaintiff the amount of SIXTY SEVEN HUNDRED THIRTY THOUSAND EUROS AND FIFTY CENTS AND THREE (67.530,53€), plus legal interest of money increased by fifty percent since the day 8 February 2017 until the date of payment. The coast of the process imposed on ALLIANZ, INSURANCE AND REINSURANCE COMPANY, S.A.”

The Court considered that Ms.. Flora had exclusive legitimacy, first beneficiary, to claim the capital to date stipulated in the policy life insurance in case of death (60.000€), signed by D. Valeriano, the 21 June 2012, after ruling he had not told the truth to the response to the health questionnaire, to which was submitted by ALLIANZ, INSURANCE AND REINSURANCE COMPANY, S.A. It also found that the occurrence of the incident referred to in the policy came with the death of D. Valeriano Day 5 December 2016.

By defendant It was filed appeal, requesting the revocation of the sentence in the first instance.

Provincial Court

By ALLIANZ, COMPANY INSURANCE AND REINSURANCE S.A., It was filed appeal.

As to primer motivo, ALLIANZ claimed the alleged inaccuracy of the negative response given by D. Valeriano the only question was raised about his health before signing the policy:

"In the last 5 years old You have undergone diagnostic tests for any of the following diseases (Cancer, myocardial infarction, cerebro-vascular accident, renal insufficiency, heart surgery, transplantation of vital organs such as heart, lung, liver, pancreas or bone marrow) or he has made medical treatment for more than 7 days or had to interrupt his daily routine for health reasons for more than 7 days?”

By the 11th section that plea was rejected, because you can not change in the brief filing the appeal, claims held in response to demand. In the same, ALLIANZ said the decline in compensation due to Dña. Flora, by applying the rule of equality under Art. 10.III LCS, for having circumvented the policy state that had been diagnosed in the year 2006 of heart disease. In the raised, to the above argument, ALLIANZ added the fact omitting D. Valeriano be in medical treatment for this disease.

However, TS on article 10 LCS, on STS 81/2019 He established that "The starting point of the jurisprudence of this Court has led it to different solutions, justified by differences in the content of the declaration in the questionnaire. The Chamber must examine whether the type of questions that were made, They allowed him to be aware that, by not mentioning their pathologies, I was hiding relevant data for accurate risk assessment. The doctrine is synthesized on the duty declaration of risk as a duty to reply or response to ask the insurer, on which, also, borne the consequences arising from the submission of an incomplete questionnaire. This was reinforced by the last paragraph added to the first paragraph of the original wording of theart. 10  LCSin which it is established that the policyholder is relieved of his duty declaration "if the insurer or when subjected questionnaire, aun sometiéndoselo, se trate de circunstancias que puedan influir en la valoración del riesgo y que no estén comprendidas en él».

For the Court of First Instance, merited reproach D performance. Valeriano when it signed the policy, because the Question was submitted on his health, It was concrete.

For 11th section, It was undeniably he said cardiac pathology was detected at the policy practiced in a radiological test the 7 September 2006, before the five-year period set in the previous questionnaire to the policy, signed in the year 2012. It was therefore a previous illness on which the policyholder was not disputed by the insurer or specifically, or generic, and on which therefore should not respond.

ALLIANZ he simply asked about diseases diagnosed in recent 5 years old (from 2007) perhaps because it considered that the above, or they were overtaken, or they were well chronic, and that, after that period of time without giving significant symptoms, as was the case of D. Valeriano, It should be considered irrelevant for the purpose of concluding insurance, and in fact that was not what caused the birth of their indemnity obligation.

Therefore, Section dismissed the alleged reason, for, citing STS 81/2019, "In consecuense, producido el siniestro, the insurer can not rely not fully comply with the provision incumbent upon it in an incorrect assessment of the risk, since it would be a result of their own lack of diligence in the hiring of insurance. "

The segundo motivo It was based on undue imposition of the surcharge provided for in Article 20.8ª LCS concurrence of cause. He was also rejected, Section has continued as follows TS doctrine (SSTS 11 June 2007; of 10 October 2010 and 19 February 2019):

The general rule, benefit of the insured, beneficiary and third injured, It is the imposition, even ex officio, the surcharge on arrears provided in such article as a mechanism promote the rapid settlement of claims by insurers, so in principle no reproach deserves its imposition by the Court.

The arrears of the insurer, justifying the imposition of the surcharge, It does not disappear automatically by the fact that there is a process or need referral to him same, but only when necessary to resolve a situation of uncertainty or reasonable doubt about the birth of the obligation to compensate done, namely, when the judgment is essential to dispel doubts about the reality of the loss or coverage, serious doubts that in the case were not fulfilled: in view of the policy, era clear the exclusive status recipient Dña. Flora, if you survived the insured; the death of the insured, regardless of the cause, this is an objective fact duly communicated to the insurance; leaving the margin had been more than 1 year for challenging contract (art. 89 LCS ySTS 635/07), It is settled case law which states that mere disagreement over the exact amount of compensation due not preclude the accrual of the interest on arrears from which finally declare relevant because the recipient was a creditor of the same from the communication of the claim to the insurance; omission imputed to the policyholder in the defense, lack of statement of hypertensive heart disease, the date was diagnosed (before 5 years, as recorded in medical history known for ALLIANZ), It was not included in the health form which was submitted to it, so you can not go to the detriment of the beneficiary.

Ultimately, the 11th Section of the Audiencia Provincial de Barcelona, in sentence 27 November 2019, desestimó el recurso de apelación filed by ALLIANZ, confirming the first instance judgment issued, and condemning the insurance company to pay the costs.

Conclusion  

It should be examined whether the type of questions posed to the policy are conducive to that it can represent what health history he knows or can not ignore concerns, namely, if questions that are made in the health questionnaire allow you to be aware that, by not mentioning their pathologies, It is hiding relevant data for accurate assessment of the risk. The duty of the risk statement is a duty of reply or response to ask the insurer, on which, also, borne the consequences arising from the submission of an incomplete questionnaire.

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