Termination of life insurance inaccuracy in the health questionnaire

Seguro de vida

 

 

Insurers may terminate the insurance contract by inaccuracies in the health questionnaire responses. But if they do not run, They must bear the consequences

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Insurers may rescind insurance when they become aware that the health questionnaire was filled out inaccurately. But, If after the legal deadline not rescinded, it is understood that as irrelevant the performance of the policyholder and may not be denied compensation on the basis that fact.

The Provincial Court of Pontevedra, section 1, in Case 24 July 2019 nº 453/2019 He resolved the controversy over inaccuracy health questionnaire completed by the policyholder. a contract of insurance life and disability was signed. At the time of filling the health questionnaire, the policyholder missed the truth in their responses. Some time later the policy was declared incapacitated. The insurer got all the medical documentation from the inaccuracy with which the policyholder replied to the questionnaire was clear. However, the insurance company did not rescind the contract life insurance for this reason and the borrower continued to pay the premium. The death of the policyholder,  the insurer refused to pay compensation for the fraudulent action of this in the health questionnaire.

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 18 November 2011 D. Augusto went to the emergency room to check for monosyntomatic hematuria.

The 30 November 2011, D. Augusto signed a personal loan 11.000 BANKIA euros with the entity.

Linked to it he will be entered into a contrato de seguro de vida with ASEVAL insurance and covering the total disability and death.

A health survey questions, He responded D. Augusto his general health was good. He was asked if he had suffered any "Blood condition ", to which he replied negatively. However,  at that time he had already signed the informed consent for surgery.

The 16 December 2011 D. Augusto was diagnosed with a tumor in the bladder that led various interventions.

In 2016 He was granted an absolute permanent disability by the Social Security.

From the 14 February 2017 in the possession of the insurer's medical history the insured who had initiated the request for compensation for the absolute permanent disability.

The 8 May 2017 D. Augusto died, before collecting compensation for disability.

his heirs, Ms.. Gregoria and D. Just they requested the death benefit to the insurer. This payment rejected alluding to a willful misrepresentation in the health questionnaire.

Primera Instancia

The 21 February 2019, el Juzgado de Primera Instancia nº 1 Cangas do Morrazo gave judgment by which it dismissed the lawsuit filed by Ms.. Gregoria and D. Fair.

The judge understood that there had been a declaration breach of duty on the health questionnaire (art. 10.1 LCS). when D. Augusto answered the health questionnaire must communicate his true state of health, having thus a serious guilt meanwhile.

Provincial Court

Instance judgment against players appealed.

They claimed, first, the inconsistency by omission. Well, instance judgment he not ruled on that the insurer did not proceed to terminate the contract when he learned of the inaccuracy of the questionnaire by the insured.

He continued to collect the insurance premiums despite having been informed of the permanent disability of the insured.

According to Article. 20 of the policy, the inaccuracy in the questionnaire influenced the risk estimation "will cause the termination of the contract ", although the art. 10 the only LCS warns that "you can"terminate.

Second, He added that the fact that the insurer would recognize prior notification to the death and no termination of the contract, He entailed that the insurer would not appreciate malice or gross negligence on the insured. O well, He did not consider that the omission frustrate the purpose of the contract.

To appeal the defendant Bankia Mapfre Vida SA opposed. It claimed that the insured understood tested He failed to comply with its obligations when completing the health questionnaire.

He added that "They were continued charging insurance premiums despite having been able to have knowledge and at the time of the inaccuracies of the questionnaire. And this because the inaccuracies got to know once-and therefore communicated happened- the sinister... and not before, It is within one month to terminate the contract since it was aware of the inaccuracies of the policyholder, previsto en el art. 10.2 de la LCS, only apply when the accident has happened ".

Thus, permanent disability was recognized in December the insured 2016 and it was not until February 2017 when he communicated to the insurance.

The 24 July 2019, Section 1 of the Provincial Court of Pontevedra delivered its judgment No 435/2019 estimating the appeal of the plaintiffs.

Concurred an omissive incongruity Art. 218 the LEC. The claim raised in the complaint was unique and, as the STS alluded 28 October 2010, what had happened was a partial examination of the claim demand.

Infringement of art. 10.1 and 2 the LCS and the jurisprudence of the AP interprets:

The art. 20 the underwritten policy provided that "omission or inaccuracy in the statements the Policyholder / Insured influencing risk estimation will result in termination of the contract, for which the Underwriter will issue a declaration addressed to the Policyholder / Insured within one month from the knowledge of the reservation or inaccuracy. It is up to the insurance company that unless willful misconduct or gross negligence on their part, the premiums for the current period at the time to make this statement ".

The plaintiffs reported disability and provided certificates of Social Security and medical reports. they understood as, they were entitled to compensation for death (31.907,66 euros) and permanent disability (30.387,66 euros).

The Court cited the judgment of the AP of Alicante, Sección 9ª, of 6 March 2014 and 19 February 2016: “the third paragraph of Article. 10 LCS, whereby <<if brokered malice or gross negligence of the policyholder the insurer shall be released from payment of the benefit>>. So you can operate this legal provision ... is two requirements must be met:

I) that the incident occurred before the insurer has made the declaration of termination of the contract as provided in the second paragraph of art. 10 LCS y;

II) the attitude of malice or gross negligence by the policyholder while performing the health declaration, which according to the case corresponds to <inclusive and decisive for the conclusion of the contract>> (sentences 1200/2007, of 15 de noviembre y 1190/2008, of 4 December).

If ... the insurer becomes aware of the misrepresentation of the policyholder after the signing of the contract, and does not choose its decision on the legal term, It is understood to have considered irrelevant misreporting, and therefore, If the accident occurs, You can not be released from the obligation to pay compensation alleging fraud or gross negligence.

About, sentence 479/2008, of 3 June, determined that "the relevance of the conduct of the insurer during the life of the contract when it is revealing that certain omissions of the insured are actually irrelevant. The duty of good faith that informs the art. 10 LCS ... is counterbalanced the insurer assumes the risk when, before hiring has not asked for more detail about circumstances it deems relevant (STS 21 February 2003, rec. 1868/97).

To exercise the rescission authority a limitation period of one month provided. Term started counting since the insurer was aware of the inaccuracy of the policy to answer the questionnaire. And it was in that period during which the insurer should lead the policyholder rescission statement.

So that, if time ran on termination, the contract was terminated and the insurer released from its obligation to cover claims that occur hereinafter.

About the art. 10, it was necessary to bring up the analysis by the SAP of Madrid 1 December 2009: if it not exercised in time faculty rescission, the contract remains in force under the same terms has been agreed and, a loss occurs covered by assure, the insurer is obliged to indemnify the insured, without the insurer may already invoke the brokenness of duty declaration of policyholder ... Well, In the absence opted for termination within the statutory period, It is understood that the insurer considered irrelevant misrepresentation of the policyholder…”.

Application of art. 10.2 the LCS to the circumstances:

Based on the factual, the Court considered not consistent with the law the interpretation of art. 10.2 LCS made in the first instance.

The insurer, following the processing of disability He learned since 4 February 2017 of that questionnaire responses were not accurate.

The information was comprehensive and was held by the insurer, but this did not exercise the option of withdrawal allowed the art. 10 LCS, and he contemplated the 20th clause of the Policy.

The insurer accepted the irrelevance of the inaccuracy of the questionnaire before the loss caused by death. Therefore he could not invoke the statement violates the duty of the policyholder since it would conflict.

The Court upheld the appeal made by the heirs Dña. Gregoria and D. Just instance judgment against.

He condemned the entity defendant to pay the amount of 31.907,03 € plus statutory interest increased money in a 50% since 8 May 2017.

Conclusion

If the insurance company knows that the health questionnaire has been filled untruthfully by the policyholder, have the legal deadline to terminate the contract. Otherwise, It is understood to have considered irrelevant misreporting of the policyholder, therefore can not deny payment of compensation for this cause.

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