Doubts about the interpretation of a contract accident insurance

seguro de accidentes

In case of darkness, the articles of the accident insurance contract must be interpreted in favor of the insured

 

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Dark clauses of an accident insurance should be interpreted against whom the established.  

Section 1 of the Provincial Court of Ávila, in Case 13 September 2019 (Res. No. 394/2019), It has solved one of these cases:  an insurance policy accident containing dark clauses producing an imbalance between the parties engaged. Hearing reproduces the case on the subject, to conclude that, these clauses, according to art. 1288 Civil Code, must be interpreted in the sense most favorable to 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

The day 11 November 2014 D. Torcuato suscribió una póliza de accidentes con la aseguradora REALE SEGUROS GENERALES S.A. La disputa radica en el numero de días que deben ser indemnizados. El asegurado sostenía que se debía indemnizar hasta elaltapor parte de un facultativo del sistema público de salud, namely, the 9 January 2017. Reale, la fecha dealtadebería ser la que indique el médico por ella designado: The 16 December 2016. Furthermore, the company where he worked D. Torcuato was closed for the holidays 19 December 2016 to the 9 January 2017. Reale acquiesce to the amount claimed by downwards to 16 December 2016. The litigation relates these days apart.

Primera Instancia

The 18 February 2019 the Court of First Instance reinforcement of Avila gave judgment upholding in full the lawsuit.

Accordingly, He ordered the defendant to pay the amount of 10.500 euros with the interests of the art. 20.4Number of the Insurance Contract Act.

Provincial Court

The insurer appealed the sentence.

First plea alleged error in the assessment of evidence as to the days eligible for compensation following the contracted policy.

The second reason for the appeal of the insurer was based on a possible inconsistency by omission of the judgment. Given that the partial acknowledgment is not collected from 8.200 euros deducted by the appellant.

The third reason for the appeal was based on the sentence imposed in the judgment at first instance to the payment of interest of the art. 20 LCS.

The 13 September 2019, Section 1 of the Provincial Court of Ávila, He gave judgment dismissing the appeal of the insurer.

The first plea of ​​the appeal, the clause of the insurance policy concerted accident was worded as follows:

the insured daily capital indemnifies (100 euros) when the insured suffers an accident, covered in this policy, that temporarily precludes the exercise of their profession or activity declared, It is paid from the date on which it has the right to receive compensation: 100% the daily allowance while remaining totally precluded for the exercise of their profession ... ".

And still adding that the medical discharge was not the only reference to specify the period of low. Well, the wording of the clause was based essentially on the fact remain totally unable to exercise the profession. The policy itself indicated how to justify temporary disability and performance standards, where it not referred to medical clearance. In the same they talked mostly a full medical report reflecting the health status of the insured, on which compensation would be set.

So, the insurer the right to ask the insured to undergo a medical study to consider appropriate reserved, in order to determine the extent of the disaster.

The Court noted that the appellant had admitted insurer assurance, the sinister and the right of accrual of the compensation of the insured. And, who had challenged only the time period that was to be compensated.

The first instance judgment compensation amounted to the date on which the insured received medical clearance by the practitioner of the public health system.

The appellant insurer argued that the time period to pay compensation due to end at the time set by the doctor appointed by it to track injuries. This set the recovery time of the day 16 December 2016.

In addition it should be noted that the insured company closed for vacation from the day 19 December to 9 January.

On the interpretation of the clauses of the policy

He stressed the Audience, regarding the interpretation of the policy, It was assessed that it was before a membership contract, understood as, one in which "its clauses are drafted by one party and imposed on the other, without it has the possibility to negotiate, only to accept or not.

This caused that there was no contractual freedom in the sense that both parties had not negotiated and established, with full freedom and equality, The clauses.

Hence, especially in this type of contract,   dark clauses should be interpreted against whom the established.

So, the STS 4 July 1997 He declared that "the Supreme Court's jurisprudence has established that the doubts that may arise on the significance of its provisions must be interpreted, according to art. 1288 CC, in the most favorable sense for the insured, as worded clauses by one of the Contracting, its darkness can not favor that he caused, but not causing the indeterminacy or ambiguity ".

The art. 1281 CC provided that if the terms of a contract are clear and leave no room for doubt about the intention of the parties, it should be in the literal sense of the clauses. Such that, that would not come into play the other rules contained in the following articles and working as subordinate.

The Court recalled the STS 21 February 1999 He determined that the thread of the item "This is to prevent by applying any other rule hermeneutics or interpretative arguments clearly revealing the expressions of the will of those hired were adulterate ".

In insurance and adhesion contracts, Hearing acknowledged it was usual to go to the rule of the art. 1288 CC why "the interpretation of the dark clauses of a contract shall not favor the party that had caused the darkness ".

STS 24 June 2002, noted that "the rule of interpretation against proferentem, host in the art. 1288 CC, as a concrete application of the basic principle of good faith in bargaining interpretation, It requires not only the unilateral drafting of the contract, but mainly dark in clause…”.

STS 27 September 1996 said the subsidiarity of this standard. So that, said single command came into play when, after applying the rules of logic, It was not the result univocal, but they originate in several similar degree of credibility.

In the case under Litis it was clear that the transcribed clause could not be described as dark because using clear and simple terms. There was confusion and darkness, nor clause could be interpreted differently.

The value of the report of the Optional contributed by the appellant

Hearing continued with allegations made by the applicant on the value of the report prepared by the doctor designated by it to track injuries insured. This report that was opposed to the approach taken by the doctor of the public health system.

The Court noted that the trial court had valued the expert opinions according to the rules of sound. Especially when the judges were not required to abide by the expert opinion, because this was only one of the means of proof or evidence.

In the case prosecuted, the Court chose to give greater credibility to the discretion of the physician of the public health system who attended the insured. And that given its status as public official, which gave it a greater appearance of impartiality.

Therefore the Court entirely dismissed the appeal filed by the insurance company, fully confirming the first instance judgment.

Conclusion

Adhesion contracts in the dark clauses shall be interpreted against whom the established.

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