The darkness in insurance contracts damages the insurer

Contrato de seguro

 

General conditions in the insurance contract are biased by the insurer and if darkness will hurt the company

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The 17 July 2019 17th Section of the Provincial Court of Barcelona has delivered its judgment No.. 435/2019 in resolving a dispute concerning the theft insurance on housing for the insured. In this case, He was subtracted from the insured housing professional equipment. The expert assessed the damage insurance, but the company indemnified those relating to professional material because, alluding to the general clauses of the policy, its value exceeded 6.000 euros. The insured filed a lawsuit alleging that the clause was not played in its entirety as this added that the limitation would only apply if the professional activity took place in the home itself. Said end was not tested and led to the High Court to rule in their favor.

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. Moses had signed a homeowners insurance company with Banc Sabadell Assegurances Generals.

In the insurance policy it indicated that there was a content, excluding jewelry, of 50.000 euros and that there was no good to have a higher value 20.000 euros.

After updates of capital, the insured amount of content were 52.260,50 euros.

The 11 October 2017, D. Moses left his home and returning found that missing a significant amount of work material he had at home.

The insurance company appointed expert to make an assessment of the damage that eventually materialized 41.929,29 euros: 7.535,13 euros in content and 34.394,16 professional instrumental euros in insured.

The insurer offered to D. Moses and the amount of compensation 7.535,13 euros.

The insurer's decision was based on the definition contained in Article 2.1 of the Terms and Conditions the signed policy. the insured risk is also delimited by expressly indicate "furniture and instrumental professional, in homes where a professional activity is exercised, Content will be deemed always ensured that their unit value does not exceed 6.000 euros, and as a whole does not exceed the 25% the total content of the insured ".

That is why professional material secured largely exceeded 25% the total content of the insured, why it was not covered by the policy underwritten and could not be indemnified.

D. Moses brought an action against the insurer for payment of the compensation,  amounting to 41.929,29 euros.

The insurer opposed. He reiterated what has already been said about the General Conditions of the Policy. And, He argued that such clauses was facilitated the actor so this He was fully aware of the determination of the risk insured and had shown their conformity.

Primera Instancia

The 22 November 2018 the Court of First Instance nº7 of Barcelona gave judgment upholding in full the lawsuit filed.

So, He sentenced the defendant to pay the plaintiff the amount of 41.929,29 euros plus interest of art. 20 LCS.

Against judgment, The company claims filed an appeal.

The appellant requested article content be taken into account 2.1 of the General Conditions of the Policy. He claimed it was not for compensation because the highest value of the stolen had been constituted by the insured professional tool (cameras and lenses) valued by experts in 34.394,16 euros.

Provincial Court

The 17 July 2019 17th Section of the Provincial Court of Barcelona gave judgment dismissing the appeal.

The Court considered that the insurance company intended to ignore that, that would be applicable to the clause on furniture and instrumental professional, “was necessary, and it consists, that housing an activity is pursued, which is not the case ... it has not been credited such circumstances ".

could not be considered professional furniture and instruments as secured content to 25% because no record established that were exercised in the insured home professional activities relations with the stolen material.

Therefore, when the total amount of the stolen, according to expert report, below the secured amount (50.000 euros) coverage came.

There was the expected risk and peritada amount was within the limits agreed.

So, on the clauses, Hearing determined that "it is biased by the insurance conditions, so that it hurts him, if, dark possible in drafting its content, ... darkness without appreciably of the same when the need for a professional activity is carried to the intended limitation applicable contemplates ".

Finally, the Court ruled on the interests of art. 20 Law of Insurance Contracts.

It was not included in the proceedings cause for which the insurer would not have proceeded to pay,  it was in possession of the assessment made by the expert.

When determining that had to be understood for cause for the purposes of applying the rule of art. 20.8 LCS, it was necessary to go to the STS 28 November 2011 que “It has followed an interpretative line that has been excluded where the opposition is unjustified payment claim against the insured or injured appreciation, although it is formulated in a judicial process ... ".

Thus, the mere existence of a process is not itself cause delay justified.

Therefore, the Court confirmed the first instance judgment.

Conclusion

The darkness in the drafting of general clauses insurance contracts damages to the insurance company that writes.

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