Indemnify or repair boat insurance?

theft insurance

 

Can the insured choose between compensation or repair in a Boat Insurance? 

 

 Consult your case for free now

The article 18 second paragraph of the Insurance Contract Law establishes that the insurance company may substitute the payment of compensation for the repair of the damaged object. However, can also be requested by the insured.

The 14th Section of the Provincial Court of Barcelona issued a ruling on 14 July 2020, with No Resolution 136/2020, dismissing the appeal filed by MAPFRE against the judgment issued in the first instance by no. 21 Barcelona. It condemned MAPFRE and IBIZA VIP YACTH PLACE, S.L., in solidarity with the obligation to restore the boat to its normal operation.

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

SEA MOMENTS, S.L., she owned a boat, called AKRA IV. This boat was deposited in the facilities of TAGOMAGO SERVICE CENTER, S.L. (later belonging to IBIZA VIP YACHT PLACE, S.L.).   Upon learning that several robberies had occurred, the 13 April 2013, the administrator of the company SEA MOMENTS, S.L., went to examine the boat. Several objects were missing from the boat, how the engines, a propeller, a tender and all the electronics of the boat.

Later, it was learned that one of the engines was not stolen, Instead, it was at the NAUTEC facilities for commissioning.

The “AKRA IVestaba asegurado con MAPFRE.

SEA MOMENTS, S.L., filed a lawsuit against MAPFRE and IBIZA VIP YATCH PLACE, S.L. Against the latter, also requested the claim of 180.000 € for loss of profit.

Primera Instancia

The Court of First Instance No. 21 Barcelona gave judgment on 3 November 2017, estimating the lawsuit filed by SEA MOMENTS, S.L. It jointly condemned MAPFRE and IBIZA VIP YACHT PLACE, S.L., to the full restoration of the boat until it could be used, again, To recess, including everything necessary for its correct operation.

Also, condemned IBIZA VIP PROJECT, S.L., to pay for ITS MOMENTS, S.L., the amount of 180.000 € for loss of profit, because he could not rent the boat between 2013 and 2015.

Provincial Court

MAPFRE filed an appeal. He gave the following reasons:

  • first plea: one of the engines was not stolen, so the demand estimate must have been partial.
  • second reason: there was a robbery simulation.
  • third plea: he could not be condemned to an obligation to do, as Art. 18.2 LCS established that the insurer can substitute the payment of compensation for the repair or replacement, but it is a power that the insurer can exercise, but it cannot be imposed. In the insurance policy, when it was talked about the settlements to be practiced in the event of a claim, nothing was said about replacement.
  • fourth plea: Regarding the invoice of 102.583,88 € should have been discounted 46.613 €, staying in 55.970 €. VAT should also have been deducted because it is a deductible expense, not being able to establish a higher amount in execution.
  • Fifth reason: pluspetición. It was necessary to reduce the value of the hull and engines, globally calculated in 150.000 €, having to indemnify only 32.358,07 €, not including VAT, it was a deductible expense.
  • Sixth reason: there was no payment for the engines (one had not been stolen) and the auxiliary boat and its engine were not declared in the policy either, valued at 320,92 € and 437,62 €, that they should also have deducted from the compensation.

Demand estimation: full partial

Before the sentence handed down in the first instance, repair or compensation of the second motor was not requested, so the judge complied with the principle of congruence between claim and sentence. Otherwise, the claim was upheld in its entirety, as MAPFRE was condemned to the obligation to make, which consisted of the complete repair of the boat.

Robbery simulation

Regarding the robbery simulation, the Chamber could not estimate it, because it considered that the simulation was a legal figure that had to be proven by evidence. However, in the expert opinion presented in the process, the indications listed were insufficient to deduce that the theft had been simulated or invented with the intention of defrauding.

Article 18 LCS

As for what is established in the art. 18 LCS, para la Sala, despite being articulated as a right of the insurance company, Nothing excluded that such repair could be requested by the insurer, instead of the payment of the compensation amount. The Chamber also rejected this reason, considerando que se le podía dar opción también al asegurado de sustituir la indemnización por la reparación.

For Hearing:

“(….) lo que regula el artículo 18 de la LCS es la obligación de pagar la indemnización una vez acreditado el siniestro, si bien se permiten las investigaciones previas sobre su existencia, pero la indemnización no sólo puede consistir en un deber de pagar dinero, sino en la reparación o restitución de lo robado o destruido, ya que el fin del seguro (cubrir el riesgo asegurado) se cumple en ambos casos. Possible, therefore, una reparación específica, salvo que se hubiera pactado lo contrario. Now, no sólo es posible, sino que el propio artículo 18-2 prevé tal sistema de indemnización al dar la opción a la compañía aseguradora de sustituir la indemnización por la reparación o indemnización. In that case, se articula esta opción como un derecho del asegurador, pero ello no excluye que el asegurado también pueda pedir dicha reparación.

Invoice and VAT

He considered the Chamber, de la factura aportada, debía reducirse la cuantía de 46.613 € en concepto del precio de uno de los motores. Concluyó que el pago del lVA sí entraba en el concepto de la indemnización.

Pluspetition

Tras analizar la póliza contratada por SEA MOMENTS, S.L., con MAPFRE, dedujo que el seguro cubría, no solo los daños y robos del equipo de embarcación, sino también los de los botes o embarcaciones auxiliares y sus motores.

Conclusion

The article 18 second paragraph of the Insurance Contract Law establishes that the insurance company may substitute the payment of compensation for the repair of the damaged object. However, también puede ser solicitado por el asegurado. No se trata de un derecho a elegir exclusivo de la compañía aseguradora.

  Consult your case for free now

Leave a Reply

Language


Set as default language
 Edit Translation


Subscribe to receive a book PDF


Just for signing up receive via email the link to download the book "How to change lawyers" en format digital.
Sign up here

Sígueme en Twitter



Subscribe me

* This field is required