Nullity of clauses limiting the overall conditioning of the insurance contract

seguro de enfermedad y accidentes

 

The restrictive clauses that do not meet the requirements of Article 3 LCS are zero although they are generally contained in conditioned

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The restrictions imposed by clauses in insurance contracts that exclude or limit coverage limitation clauses are valid and need to fulfill the requirement of “double signature” required by Article 3 LCS.

Section 1 of the Provincial Court of Huesca, in Case 27 May 2019 with No.. resolution 66/2019 He resolved the dispute between an individual and an insurance company by signing a accident and sickness insurance. The casualty, the insurance company refused to pay liquidated damages alleging exclusion from coverage under the general conditions of the accident. The High Court ruled in favor of the particular grounds that it was limitation clauses that they did not meet the legal requirements.

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

D. Juan Pedro signed with ZURICH INSURANCE P.L.C (hereinafter ZURICH) un contrato de Sickness and accident insurance.

Later D. Juan Pedro had an accident. Pathologies D. Juan Pedro suffered was a slow process and fall acted as a trigger that caused the change of position by the INSS. It is declared for total permanent disability.

D. Juan Pedro asked the insurance company to pay compensation. This was opposed on the grounds that the insurance was concluded only disease.

D. Juan Pedro filed a complaint.

Primera Instancia

The 6 April 2017 the Court of First Instance No. 2 of Monzon gave judgment partially upholding the lawsuit. He condemned ZURICH to pay the plaintiff the amount of 18.123 euros, absolving the rest of the pedimentos.

Provincial Court

Instance judgment against the plaintiff appealed.

He argued in his appeal that there was common ground that the general conditions under which the contract was governed were made by the defendant.

He argued that not concluded an accident insurance but sickness and accident. This claim was consistent in relation to the particular conditions of insurance coverage that appeared in both accident and sickness.

The 27 May 2019 Section 1 of the Provincial Court of Huesca gave judgment estimating the resource:

She hearing brought up their sentences 8 March 2016 and 5 September 2018: “non-acceptance in writing of the restrictive clauses in accordance with the requirements of Article 3 of the Insurance Contract Act has relevance only to prevent the entry into action of such restrictive clauses, whereas the existence and validity of non-restrictive clauses, as the Judgment of the Supreme Court says 28 May 1999, it can be shown by any evidence ... ".

The case dealt with clauses limiting because "exclusion of risks naturally included within the agreed under particular conditions is limited coverage clause ". insurance, to leave out a risk coverage initially covered, He drafted a specific clause for this purpose. And this performance carried the introducing a limitation clause which was submit written specifically customer to verify their knowledge and consent.

For, the particular conditions ensured permanent disability, without specifying that it occurred due to illness or accident. While, for temporary disability itself a differentiation is made between sickness and accidents. Thus, general conditions, by linking disability with its production by an accident they exclude the possibility of the disease. And, It is at this point that these general conditions introduced one limiting clause to be opposable to the insured should have been submitted to the formalities of the art. 3 Law of Insurance Contracts.

Moreover, the Court noted that, special conditions, when fixed compensation invalidity referred to the "mode 250%". Hearing understood that this reference meant that came the 250% the sum insured. This is because Darkness can not favor the party that created.

For the sake, It took into account that the Supreme Court also considered limiting the scales in General Conditions for graduation percentages of disabilities.

As the judgment of the Supreme Court said 17 April 2018: “case law has established that voluntary accident insurance, any restrictions by clauses that determine the causes and circumstances of the accident or modalities and disability for which coverage is excluded or limited, would be a clause limiting rights of the insured.

The Supreme Court No.. 676/2008, of 15 July, He said "restricting the sum with which compensation is appropriate cases permanent disability or excluding distinguishing cases according to the severity of injuries involves ... one limiting the rights of the insured if a lump sum is set in the specific conditions for total permanent invalidity (…) the determination of compensation for permanent disability by a percentage of guaranteed capital... contrary to the specific conditions, in which only a fixed figure is a figure ... limiting clause, it requires for its validity the requirements of Art. 3 LCS.

If it was not established that the general conditions under which the contested contract was governed were those contained in any of the different versions that had been providing the insurance demanded, It can not be said that the actor had gone against their own actions at all times when he had argued that these were not the terms and conditions of his contract and that he concluded an accident insurance but sickness and accident.

Therefore the Court upheld the appeal. It Instance reversed the decision and instead fully upheld the lawsuit filed by the appellant.

Conclusion

So that the limitation clauses introduced into an insurance contract to be valid must meet the requirements of art. 3 Law of Insurance Contracts. Namely, They must appear excel and be expressly accepted by the insured to confirm their knowledge.

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