Interests of Art.20 of the Law on Insurance Contract by Rafael Juan Juan Sanjose

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If the insurance company is delaying payment of compensation, is obliged to pay interest in accordance with Article 20 Law of Insurance Contract.

On this topic, I have the honor of publishing the work of D. Juan Juan Rafael Sanjose, Deputy Judge of the Provincial Court of Castellón and brilliant jurist.

I recommend this work especially for lawyers because its depth is greater than the ticket usually public.

Here you work D. Juan Juan Rafael Sanjose:

INTEREST ARTICLE 20

LAW OF INSURANCE CONTRACT

Jurisprudential analysis of the question.

We must start from the premise that once the accident happens obligation born, by the insurer, indemnify the insured, and this because in return for payment of the premium, is to indemnify the insured damage at the time the loss occurs.

The insurer will, therefore, obliged to pay compensation at the end of the investigations and surveys necessary to establish the existence of the claim and, if, the amount of damage resulting therefrom, as stipulated in the Article 18 LCS[1].

Follow determining that Article 18 LCS in any course, the insurer must make, within forty days, from receipt of the statement of claim, pay the minimum amount which the insurer may owe, according to the circumstances known to him, the insurer may, when the nature of insurance and the insured permits consents, substitute the payment of compensation for the repair or replacement of the damaged object.

This is derived from the obligation to pay the benefit by the insurer to the insured, except, as mentioned in Article 19 LCS, the accident was caused by the bad faith of the insured.

Nonetheless, Article 20 LCS, and in order to protect the insured, establishes a penalty in case of default by the insurer in paying compensation.

Once established these basics when it comes to understanding the indemnity obligation under the insurance contract, we will analyze Article 20 LCS, which is of recurrent discussion in court between insured and insurer.

The article 20 LCS, sets out rules on the assumption that the insurer is in default in complying with the provision, always leaving untouched those contractual terms which are most beneficial to the insured and well in its first point determines that affect, generally, the default by the insurer in respect of the policyholder or insured and, with particular character, the delay regarding the injured third party liability insurance and the beneficiary in the life insurance.

This first rule that is exposed are those individuals who may claim to the insurer in the event that it is delayed in the payment of compensation to the next required.

The second rule specifies that apply to the delay in the satisfaction of compensation, payment or for the repair or replacement of the damaged object, and also the delay in payment of the minimum amount which the insurer may owe.

The third point an express determination of periods from which the insurer is in default and thus exposes the insurer in default if not complied with the provision within three months from the occurrence of the loss or any proceeded to pay the minimum amount of what may be due within forty days from the receipt of the statement of claim.

Regarding this point, is important to determine the starting time of the accrual of interest, what inevitably will come together at the time of production event for the indemnity obligation, because this will determine not only the amount of interest, but even mulberry own insurer or.

Since this point is not peaceful, especially fruit casuisticsts Multiple occurs in forensic practice, jurisprudence has spoken about, highlighting among others the following resolution, in which the event giving rise to an obligation to indemnify is analyzed and thus far a quo to determine the delay of the insurer:

STS Sala 1ª- 20-7-2011 - Fundamentals of Law 5th- Speaker: Juan Antonio Xiol Rios: Accident Insurance - made generator and insured risk.

In accident insurance has distinguished between fact generator and insured risk, what you put in connection with the accident insurance with disability coverage in different levels, has led to the conclusion that the doctrine, While insurance obligations, essentially, compensate the damage caused to the insured, within agreed limits, are payable to the insurer whose contract was in force when the event occurred that gave rise, later, to invalidity, however the risk insured, whose attendance is essential to be under an obligation to indemnify, what is said resultant inability of accident, understood from the phenomenological point of view, operative event of such a likelihood -invalidez- hedged. This explains that the obligations of the insurer are not born of the Generating, Because of the violent, Sudden, external, which causes bodily injury determinant of disability, but arise from the same disability, which is the insured risk, being the date of the declaration of the inability of determining the temporal and economic effects of insurance coverage concerted, and the applicability of the conditions agreed.

"... Default interest Article 20 LCS on accident insurance.

According to Article 100 LCS, "Subject to the limitation of the risk that the parties engaged in the contract, means accidental bodily injury that results from a sudden violent cause, external and beyond the control of the insured, produzca that the permanent disability temporal muerte ».

Jurisprudence (SSTS 14 June 1999 (RC núm. 3545/1994) and 23 December 1999 (RC núm. 1365/1995)) has distinguished between fact generator and insured risk. This distinction, placed in connection with the accident insurance with disability coverage in different levels, has led to the conclusion that the doctrine, While insurance obligations, essentially, compensate the damage caused to the insured, within agreed limits (article 1 LCS), are payable to the insurer whose contract was in force when the event occurred that gave rise, later, to invalidity, however the risk insured, whose attendance is essential to be under an obligation to indemnify (article 1 LCS), what is said resultant inability of accident, understood from the phenomenological point of view, operative event of such a likelihood -invalidez- hedged. This explains that the obligations of the insurer are not born of the Generating, Because of the violent, Sudden, external, which causes bodily injury determinant of disability, but arise from the same disability ( SSTS 17 May 1985, 22 September 1987), which is the insured risk ( STS 19 January 1984), being the date of the declaration of the inability of determining the temporal and economic effects of insurance coverage concerted, and the applicability of the conditions agreed ( STS 13 June 1989).

When controversy arises about the delinquent insurer, en particular, regarding the accrual of interest provided by law, previous doctrine must be related to the affirmed by this Court in relation to Article 20 LCS, precept has been said that it is applicable to all types of insurance, and that the liquidated damages that paragraph 4 of the same concerns imply the existence of a culpable delay, obey not cause or which can not be imputed to the insurer. Since it has no place to appreciate the delay but as soon as the incident occurs, as stated in Article 20.3 LCS, as the fact that the initial fixed term accrual, which in the accident insurance claim comes not given for the accident, done as generator or cause bodily harm, but by accident in the strict sense is derived from the wording of Article 100 LCS, namely, as bodily harm resulting from such causes, understanding of death and disability, risks are hedged, supposed only from the declaration of invalidity and knowledge by the insurer starts this default and the interest charge, if the delay in the payment of the compensation does not respond to a good cause or a cause that can be attributed. This follows from the case law contained, inter, the STS 8 November 2007 (RC núm. 5507/2000), it examines whether the accrual should start with the report issued by the company after completion of the procedure under Article 38 LCS before, communication with the insurance invalid (therefore, in any case from the accident which was the operative event of disability), and that contained in the STS of 7 February 2007 (RC núm. 1435/2000), in which it is stated that the insured risk accident insurance is invalid (along with accidental death) and, that, consequently, "Sinister, which consists in carrying out the risk, does not lie directly in the production, abstract, accident to which it is causally connected disability suffered, production but such invalidity, Consequently whenever, immediate or remote in time, accident '. It also reiterates the judgment as soon as it can not be said about the incident as confusing event for disability with the time of production of this, as risk insured, and concludes that, "In short, the date of origin of the disability, as date of loss from which the arrears should be determined, study depends on the circumstances of the case ".

In the case prosecuted, although all actions filed by the appellant today, which formed the subject of two of the three suits accumulated, have their factual basis in the same car accident that occurred on 3 November 2001, however, adequate response to the controversy that arises under this plea requires distinguishing between direct action, extra-contractual nature, made by that appellant, as impaired, against alleged perpetrators of civilian casualty, including the insurance of the towing vehicle, and action based on their own accident insurance , contractual, who exercised against Aegon, to claim the allowance in the case of the event occur whose risk -the absolute invalidity degrees, Partial and professional- was hedged.

In this situation, application to the case in hand prior doctrine allows to consider lawful the decision of the AP, considering that it was not to be realized from the report of medical sequelae or permanent injury (21 May 2003) when he was born the obligation of the insurer to indemnify and, consequently, when the recognition of interest not seen cause of delay began (article 20.8 LCS), value also being due to, although strictly speaking it was not until the resolution of the INSS issued less than a month after (19 June 2003) of that report when total permanent disability of the appellant pleaded, that the pejorative reform in this office is not permitted to delay justified does not apply until the date of the resolution indicated the beginning of the accrual of the surcharges. "

As a conclusion to this doctrine expounded by the High Court, must be determined exactly, when setting the default or not the insurer, the time when the obligation to pay compensation begins, for what will be subject to both the concept of compensation, as to the relationship between the conflicting parties, Since it will be the interplay between the event and the risk insured which will shape the beginning of the calculation of default by the insurer.

Fourthly, exposing the article 20 LCS that liquidated damages will be imposed automatically by the court and shall consist of the payment of an amount equal to the legal interest rate in force when the annual interest that accrues, increased in the 50 by 100; Such interest shall be deemed to accrue daily, without judicial complaint.

However, two years after the occurrence of the claim, the annual interest shall not be less than 20 by 100.

In relation to this point, appellant has been discussion about whether the interest on arrears 20% is automatically applied, after expiry of the second year from the date of loss, or legal interest shall be the increased money in a 50% until the second year, according to their computer for days, and from the second year at the rate of 20%, Anyone find it lower if, being several jurisprudential positions about, exposing the High Court, definitely his doctrine about resolutions like this:

STS Sala 1ª- 1-3-2007 - Fundamentals of Law 1 and 2 – Speaker: José Antonio Seijas Quintana: Article 20 LCS. Theory of two sections.

Establish legal criteria regarding the application of Article 20 LCS and so for the first two years from the occurrence of the claim, liquidated damages shall entail payment of an amount equal to the legal interest at the rate applicable annual interest each day, which will correspond to that annuity increased by 50%. From this date the interest will accrue in the same way, provided that exceed 20%, with a minimum rate of 20%, if not exceeds, unchanged and therefore already accrued daily until such time. (Theory of two sections).

"... FIRST.- The appeal for consideration of the Board's interpretation of Rule 4th Article 20 Law of Insurance Contracts , in the wording given by Law 30/1995, of 8 November , under which:

"The liquidated damages can be imposed automatically by the court and shall consist of the payment of an amount equal to the legal interest rate in force when the annual interest that accrues, increased in the 50%; Such interest shall be deemed to accrue daily, without judicial complaint ".

However, two years after the occurrence of the claim, the annual interest shall not be less than 20% ".

The problem arises in determining whether interest on arrears 20% is automatically applied, after expiry of the second year from the date of loss, or legal interest shall be the increased money in a 50% until the second year, according to their computer for days, and from the second year at the rate of 20%, Anyone find it lower if.

This is what the doctrine, and in different and conflicting judgments of Provincial Courts, known as the theory of the single tranche or two sections of interest.

The first is justified by the punitive and deterrent purpose that the legislature intended to attribute to default interest and its ultimate goal, directed to obtain a quick and efficient repair of damages resulting from the movement of motor vehicles, for which means that insurance companies imposed a special duty of care in the payment of compensation, with the consequence that if he does or entered in three months, the increased statutory interest accruing on a 50%, and if you pass two years from the date of the incident without having made, default interest shall be at least 20% from the date of the accident and not from the two years. Opposite, also, would consider a new date for calculating -the interests of the third year- and computation rule does not establish different interest than the indicated in No.. 6 Item 20.

The second takes into account the interest is computed by days from the date of loss, so set a daily accrual rate in effect under (the amount of the annuity plus the 50%), the only thing that sets the second paragraph, when the insurer takes more than two years, is to set a higher minimum rate, as higher penalty, but without altering the daily calculation rule; interpretation serves the amendment made by law 30/95 I assumed, As is clear from his statement of reasons and prior to its enactment parliamentary debates, that happen to accrue interest for any days outside the applicable rate, preventing its retroactive application where this would modify existing accrued in the previous two years, applying to be more burdensome only from the third year. This criterion also considers the restrictive nature to be interpreted with any sanctioning norm and the wording of the second paragraph that uses the word "after" in connection with an expression of no future "may be", indicating that only then, completed the first two years and from the first day of the third, is when the worsening of interest occurs.

The judgment that is being appealed in cassation welcomes posture only section providing that the rate will, from day one, that of 20%, the failure to pay the insurer within two years from the occurrence of the claim. Against it the appeal made by P stands. (applicant) in which, through the sole motive admitted to the appellate process, claim infringement of Article 20 Law of Insurance Contracts.

SECOND.- These contradictions, and the lack of case law on the accrual and amount of default interest provided for in Article 20 LCS, requires that the doctrine of this Court is finally adopted, that, is advanced, is none other than the next: During the first two years from the occurrence of the claim, liquidated damages shall entail payment of an amount equal to the legal interest at the rate applicable annual interest each day, which will correspond to that annuity increased by 50%. From this date the interest will accrue in the same way, provided that exceed 20%, with a minimum rate of 20%, if not exceeds, unchanged and therefore already accrued daily until such time.

This interpretation favorable to the existence of different types and lengths, is consistent with the legislative intent, expressed in the Preamble of the Act 30/1995, in paragraph 6 which justifies the reform on Article 20 LCS of the need to avoid very diverse interpretations that had resulted, noting that "interest shall be quantified, moderating the formula of absolute interest to do so during the first two years, reference to the legal interest ". This legal position does not mean granting a longer grace period for insurance companies, since nothing is said about. Involves establishing two periods with two quite distinct types of applicable interest, which shall be determined without altering the daily calculation, with the minimum of 20% if in the second year of the loss does not exceed such percentage. It is also consistent with its grammatical meaning and its daily accrual, as this is incompatible with the possibility of having to wait two years to meet, If the insurer fails, the interest rate applicable to retroactively amended and accrued daily, under the then current interest, in the previous two years.

The deterrent effect of the interest that prevails in the opposite conclusion can be accepted with reservations from idea to avoid opposition from insurers in fulfilling their indemnification obligations, not from the clear and plain intention of the legislature to give a new treatment to the standard look and behavior of the obligor in a different way especially as, while, officially decreed the accrual of interest and this occurs for days. If the legislature intended to strengthen the position of the injured, hardly have changed since the previous standard was enough to keep the only current annual interest rate of 20%.

Claim, also, this formula is more burdensome, and as such deterrent, is somewhat defensible today due to low rates of legal interest, not from a different situation from the future in which the sum of 50% the legal interest can provide a much greater interest to the 20%, which operates as a subsidiary of value is not met. Finally, 6th standard Article 20, not altered with this interpretation, because it is specifically referring to the time they begin to accrue penalty interest, it being in section 4 in which the interest rate for one period and is determined from the accident ... "

Thus, and faced with the choice between the two theories prevailing in the Provincial Courts (a section and two sections), Supreme Court establishes doctrine and favors the theory of two sections and thus establishes that during the first two years from the occurrence of the claim, liquidated damages shall entail payment of an amount equal to the legal interest at the rate applicable annual interest each day, which will correspond to that annuity increased by 50%. From this date the interest will accrue in the same way, provided that exceed 20%, with a minimum rate of 20%, if not exceeds, unchanged and therefore already accrued daily until such time.

In his fifth point, Article 20 LCS, states that the repair or replacement of the damaged object initial basis for calculation of interest shall be the net amount of such repair or replacement, without the illiquidity prevents begin to accrue interest when it comes to the ap. 6º subsequent. Otherwise it will be calculating initial base compensation due, or the minimum amount which the insurer may owe.

At this point, the most controversy is determined in terms of the possible appropriation by the insured, no total, but a partial amount of the final compensation to which payment is required, and so the Supreme Court has determined, in successive resolutions, among which include the The STS 12 March 2012 (ROJ: STS 1909/2012) (Sentence: 165/2012 | Resource: 1203/2008 | Speaker: Juan Antonio XIOL Rios) that:

"As for the computation of interest and the effectiveness of partial appropriation , but as in force at the time of the loss is not so referred to specifically mention the possibility that the insurer will liberate the charge compensation due consigning -in the course of damage that can not be repair, only with liberatory purposes contemplated payment of compensation -, neither can it be concluded that the provision was prohibited before the reform 1995 expressly contemplated as a way to avoid the surcharge. And according to recent jurisprudence, that provision must be interpreted as meaning that the benefit of exemption from surcharge is made dependent on the fulfillment of the obligation to pay on time or consignment as otherwise fit not apply to that conduct the effects of production impeditive blackberry ( STS 29 June 2009, RC n.º 840/2005 ), and only after the entry into force of the reform of 2007 ( Law 21/2007, of 11 July) It can be argued that the escape provision is made for payment that (article 7.3 and ), in conjunction with Article 9); This implies that the allocation made under the previous wording, whether it was the original Act 30/1995 or essays resulting from the changes made after the 13th DF LEC and the revised text of the LRCSCVM, Royal Decree 8/2004, of 29 October, was no provision for payment but a security purpose ( SSTS 26 March 2009, RC n.º 469/2006 ; 12 July 2010, RC n.º 694/2006 and 28 June 2011, RC n.º 1968/2007 ). Therefore, exist, partial appropriation made, though not bound offer of payment, Free of charge, but only by its amount, what am I supposed to continue the accrual of interest on the difference. "

It follows that in terms of traffic, appropriation regulated 8th Additional Provision of Law 30/95, according to the previous wording reform 2007, do not require that payment purposes to produce discharging effects. Which is not the case today, After the reform referida.

Continued on the following article exposing 20 will be the initial term of the computation of such interest the date of loss.

However, if the policyholder, the insured or the beneficiary has not fulfilled the duty to report the loss within the time fixed in the policy or, secondarily, in seven days I have known, the initial term of the computation will be the day of submission of the claim.

As the injured party or his heirs as provided in the first paragraph of this number shall be exempt if the insurer proves that he had no knowledge of the claim prior to the claim or the exercise of direct action by the injured party or his heirs, in which case the date will be the initial term of such claim or exercise of that direct action. (p.6)

In the seventh paragraph states that will end the end of calculation of interest in cases of failure to pay the minimum amount for which the insurer may owe, the day under the preceding number to begin to accrue interest on the total amount of compensation, previously unless it is paid by the insurer that minimum amount, in which case the date will be final term this payment. It will end expiration of the obligation to pay interest on late payments by the insurer in the remaining cases the date of actual compensation satisfies, by payment, repair or replacement, the insured, beneficiary or injured.

And on the eighth to be no place to liquidated damages from the insurer when the dissatisfaction of compensation or payment of the minimum amount is based on a cause or that is not due.

As for these ends is to highlight the STS 11 December 2006, treating cases of default by the insurer and in particular those who are considered justified delays.

STS Hall 1st - 3rd 11-12-2006- Basics Right- Speaker: Juan Antonio Xiol Rios: Fire insurance. Delay in the payment of the insurance.

When determining the interests of the article 20 LCS, regarding the delay in payment of the insurance, should be taken into account in the fire insurance pendency of criminal proceedings aimed at identifying the causes of the accident justifies payment delay, at least until there's acquittal.

“…A) The Insurance Contract Act (LCS), in the previous wording 1995, required by Article 20 to set the default by the insurer that the delay in the fulfillment of the obligation to pay compensation within the period indicated is due to a cause attributable to it and is not justified. Unjustified mere opposition to the payment and delaying tactics by the insurer, for reason of legal mandate lies in preventing the process is used as an excuse to hinder or delay payment to injured. To determine if the opposition is justified payment must proceed to an analysis of what happened in each case (SSTS 16 March 2004, 8 November 2004, 15 December 2005 and 2 March 2006, inter).

  1. B) It is proper reason for the delay in payment of compensation agreed in the fire insurance pendency of criminal proceedings, even if the conclusion is acquittal, based on the existence of consistent evidence of intent on the part of the insured in the causation of the accident. Indeed, the law states that it must be regarded as a demonstration of the occurrence of good cause for the delay, only until the time that criminal acquittal was rendered firm, have followed the criminal proceedings whose purpose was primarily to determine the causes of the accident, Given the, according to art. 48 II LCS, “(and)l insurer shall compensate the damage caused by fire when the fire occurred due to willful misconduct or gross negligence of the insured ".

Include, among the most recent, The following SSTS:

  1. a) STS 27 May 1998 considers proper reason for delay "the reality of a criminal proceeding is not initiated at the request of insurance companies", because it "is raised, no longer the question of the amount, but the same obligation to pay ".
  2. b) STS 12 March 2001 also considered just cause the existence of criminal proceedings, "Although did not have the necessary authority to attribute causation of the accident to the insured, Obviously looks are of sufficient reasonableness to imply that a rational uncertainty or doubt that justifies the application of the legal exclusion of charges is given ".
  3. c) The same conclusion comes STS 28 November 2003.
  4. d) STS 8 March 2006, in such a case prosecuted by this process, states that "when determining the cause of the insurance payment is to be made by the court is questionable especially when the existence or reality of the loss, as when they have not learned their causes and this is determinant of the amount of compensation or, as there is dispute between the parties, not on the exact amount of compensation, but on whether or not to cover the incident; and when, by the need to resort to the competent court for the determination of the cause, guilty or not, loss of production, judicial decisions fixing the amount payable by the insurer by way of compensation to the discrepancies between the parties is necessary, especially (STS 5 March 1992) when the complexity of the relationships held between them exclude the easy determination of the amount actually due ", Mulberry insurer excludes ".
  5. and) Likewise the SSTS are pronounced 9 March 2006 and 10 May 2006.
  6. C) In the course trial is sufficient to highlight the circumstances that highlights the appellant, consisting of the self-initiation of criminal proceedings, repeated a gag agreements, order of interception of telephone conversations, opening of the trial at the request of prosecutor provisional rating of arson and scam, recognition by the acquittal criminal judgment evidence that there is evidence regarding D. Rodrigo and his wife, together with the existence of a similar conflict "V., SA "with his former insurer other casualty, which also ended with acquittal, where the Criminal Court said that there is clear and explicit statements of witnesses in the investigation of the case, You then faded in the trial; and in the judgment of the Provincial Court also referred to the lack of evidence as a basis for acquittal.

This background, complex bound to the evidence taken in the process of request, scrutinized by the judge, on the economic situation and background of the company secured, lead to the conclusion that, at least, there were indications about the possible intentionality in the production of fire and, accordingly, It can be understood that there was reasonable doubt about the cause of that, which justified the delay of the insurer to pay the amount of compensation. This, Although not able to demonstrate the intention or gross negligence of the insured, was reasonable, in view of the background and research particularly made in connection with the incident for which compensation is claimed, that would put the means to investigate the possible significance of the circumstances in order to determine the responsibility of a fire whose precise causes, ultimately, could not be ascertained.

  1. D) For all the above, be considered conforming to the doctrine of this Court's judgment, as applicable surcharge compensation object of the sentence from the time of the incident, on the basis of pre-contractual determining the amount of compensation, but omitting the facts that just referred. These stem largely from resultancia evidence that supports the judgment itself, and, Cases, are likely to be considered on appeal by virtue of the powers of integration of the facts regarding the law recognizes those who, consisting in cars and not going against the statement of facts found, they are relevant to the application of the rule infringed and invoked as they have been disenfranchised by the contested judgment.

Such facts, in cases prosecuted, are fully relevant, under the case law cited, so it can be seen that only the criminal judgment of acquittal clears patent so the uncertainty about the possible existence of an intention of producing fire, so that from the date the judgment was handed down in the second degree in the criminal disappears justification for the insurer delayed payment, have been orphaned by the intentionality test of the claim and its authorship by the managers of the insured, in such a way that from it can be considered unjustified lack of payment by the insurer for compensation from ... "

STS's also 25 February 2013 (ROJ: STS 1523/2013) (Sentence: 117/2013 | Resource: 1671/2010 | Speaker: Juan Antonio XIOL Rios), facing the dilemma and points above the restrictive manner in which the High Court considered a late:

"Third.- Interest on late payments. Provenance for taxation.

  1. A) The DA 8th of Law 30/1995 of 8 November, Regulation and Supervision of Private Insurance , in addition to changing the name of the Law on the Use and Circulation of Motor Vehicles (which was renamed Law on Liability and Insurance on Motor Vehicle Traffic), up to this standard a DA, concerning the default by the insurer, where, although it referred to on this issue to Article 20 LCS , also recognized a number of features, mainly the possibility that the insurance company could exonerate the late fee paying compensation or judicially consigning within three months following the date of occurrence of the claim, specifying that, if he could not know at that time the full extent of the damage subject to compensation, was to be the judge to rule on the sufficiency or expansion of the amount appropriated, preliminary coroner's report if applicable, and according to the approximate amount that may apply under the legal system of evaluation that incorporated the Annex to the said Act with.

As it has been understood the jurisprudence of this Court (SSTS 29 June 2009, RC n.º 840/2005 ; 7 June 2010, RC n.º 427/2006 , 12 July 2010, RC n.º 694/2006 ; 22 November 2010, RC n.º 400/2006 and 28 June 2011, RC n.º 1968/2007 , among the most recent), the wording of the standard quoted-in its original form, applicable to claims incurred during the term ( SSTS 26 March 2009, RC n.º 469/2006 ; of 22 November 2010, RC n.º 400/2006 and 10 November 2010, RC n.º 882/2007 , inter)-, is clear that the benefit of exemption of fee is dependent upon the fulfillment of the obligation to pay on time or consignment (three months following the occurrence of the incident), and, also, they are personal injury over three months, or whose exact scope length can not be determined after allocation, that the amount is sufficient declaration by the court in view of the forensic report if applicable, this being a statement that the insurer must request. Lacking these two budgets, not be recognized for the conduct displayed by the insurance company hold back the effects of mulberry production that includes the standard. Until the entry into force of the reform introduced by Law 21/2007 (article 7.3 and], in conjunction with Article 9) this Court has not considered it necessary to provide the injured quantities reported for the discharging effects by recognizing a purpose strictly guarantee (SSTS 26 March 2009, RC n.º 469/2006, 12 July 2010, RC n.º 694/2006).

Moreover, although in accordance with Article 20 .8.º LCS , the existence of cause implies the absence of fault or delay attributable to the insurer, and exonerated him of what these charges default interest, in appreciation of this exemption because this Court has maintained a restrictive interpretation in response to the punitive nature which may be attributed to the effect of the rule preventing that process is used as an excuse to hinder or delay payments to injured ( SSTS 17 October 2007, RC n.º 3398/2000 ; 18 October 2007, RC n.º 3806/2000 ; 6 November 2008, RC n.º 332/2004 , 7 June 2010, RC n.º 427/2006 ; 1 October 2010, RC n.º 1314/2005 ; 17 December 2010, RC n.º 2307/2006 ; 11 April 2011, RC n.º 1950/2007 and 7 November 2011, RC n.º 1430/2008 ).

In response to this case, if the delay is determined by the course of litigation, opposition to the insurer is assessed as justified for the purposes of imposing interest has not examined the merits of the same, basis of the findings made by the trial court, which corresponds to the setting of the proven facts and the circumstances of a factual nature budgets needed to integrate the standard used.

This interpretation rule that the mere existence of a process, or the fact of going to the same, constitute proper reasons for the delay itself, or presume the reasonableness of the opposition. The process is not an obstacle to impose on the insurer's interests unless you appreciate a real need to resort to litigation to resolve a reasonable doubt or uncertainty about the birth of the same obligation to indemnify ( SSTS 7 June 2010, RC n.º 427/2006 ; 29 September 2010, RC n.º 1393/2005 ; 1 October 2010, RC n.º 1315/2005 ; 26 October 2010, RC n.º 677/2007 ; 31 January 2011, RC n.º 2156/2006 and 1 February 2011, RC n.º 2040/2006 ). For this reason, jurisprudence does not see justification when, without questioning the reality of the claim or its coverage, uncertainty about the actual amount of compensation arises only, or concerning the causal influence of the fault of the insured in its causation, even in cases of possible occurrence of negligent conduct. In the first case, because it is important that the uncertainty has been fueled by the insurer himself neglecting his duty to use the utmost diligence in the rapid appraisal of the damage caused, to facilitate the insured for prompt redress of what is considered due ( SSTS 1 July 2008, RC n.º 372/2002 , 1 October 2010, RC n.º 1315/2005 and 26 October 2010, RC n.º 677/2007 ), notwithstanding that the insurer will defend and that, thrive opposition, entitled to the refund of the price paid, and that overcoming old aphorism in illiquidis non fit mora [not dwell occurs when it is illiquid amounts] has led to the jurisprudence to consider compensation as a debt, regardless of when quantifying, already exists at the time of the accident occur, as a determining factor of the duty to indemnify (among the most recent, SSTS 1 October 2010, RC n.º 1315/2005 ; 31 January 2011, RC n.º 2156/2006 ; 1 February 2011, RC n.º 2040/2006 and 7 November 2011; RC 1430/2008 ). In the second case, because the liability arising from the use of motor vehicles is based on the risk posed by their conduct (article 1.1 II LRCSVM 1995), so that only the allocation of the result the driver is excluded when the causal chain interferes with the conduct or negligence of the injured (if the damage is due solely to them) or force majeure unrelated to driving and vehicle operation ( STS 16 December 2008, RC n.º 615/2002 , among many). In particular, blame the victim, although it proved, if not the sole cause of the accident, is ineffective to exonerate the driver (SSTS 10 December 2009, RC n.º 1090/2005; 23 April 2009, RC n.º 2031/2006; 29 June 2009, RC nº 840/2005 and 10 October 2008, RC n.º 1445/2003, inter).”

Last, at points 9 and 10, Article 20 LCS, comes to establish certain specialties, if that is the Insurance Compensation Consortium liable to pay the compensation, certain rules and regulations about.

The ninth point is said that when the Insurance Compensation Consortium must meet the compensation as a guarantee fund, means that in default only in the event that the period of three months has elapsed from the date on which you are claiming satisfaction without compensation by the Consortium having paid the same in accordance with its rules specific, being applicable not required to compensate for default of non-payment of the minimum amount. In the remainder when the consortium involved as a guarantee fund, and, no exceptions, when the consortium hired as a direct insurer, be fully covered by this article.

And on the tenth point in determining the insurer liquidated damages shall not apply the provisions of Article. 1108[2] CC., nor the precepts in para. cuarto art. 921[3] LEC, unless the provisions contained in the latter provision for partial or total reversal of the judgment.

[1] Law 50/1980, of 8 October, Insurance Contract.

[2] Art. 1108 CC "If the obligation consist in the payment of a sum of money, and the debtor delays, compensation for damages, not there is agreement to the contrary, shall entail payment of the agreed interest, and lack of agreement, the legal interest. "

[3] Art. 921 p 4 LEC "When the resolution ordered to pay a net amount, this will accrue to the creditor, since it it were the court of first instance until it is fully executed, equal to the legal interest of money increased annual interest at two points, or appropriate by agreement of the parties, the special provision, lodged an appeal unless the judgment is fully revoked. In cases of partial revocation, the Court resolved according to their discretion, razonándolo purpose. "

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