vicarious liability and breach of the insurance

responsabilidad civil subsidiaria


If there is no malice or gross negligence, the insurer must pay compensation for the amount paid as civil responsible subsidiary


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The vicarious liability It is obliged to compensate the injured as a result of a criminal offense.

The Criminal Code provides in Article 120.4 that legal or natural persons engaged in any kind of industry or commerce shall be civilly liable for offenses committed by their employees or representatives.

The insured proceeds to the payment of compensation to a third party for damages, to having been held responsible civilly.

Is required by the insurance company to pay compensation provided there is no willful misconduct or gross negligence of the policyholder insurance, insured or beneficiary. Responsible may exercise the civil action based on contractual performance art. 1124 CCivil against insurer.

19th Section of the Provincial Court of Barcelona, in sentence 17 January 2020, with No Resolution 14/2020,  It has solved one of these cases, dismissing the appeal filed by ALLIANZ INSURANCE AND REINSURANCE, S.A..

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

By SAGUICORP FRANCHISING, S.L. (SF, onwards) He was contracted one liability insurance with ALLIANZ INSURANCE AND REINSURANCE, S.A. (Allianz, onwards), to cover the operation of a catering business.

There was an assault between two workers of the company. This led to the opening of criminal proceedings. judgment was delivered on time 14 October 2015, declaring vicariously responsible a SF, S.L., condemning it to pay 45.976,80 € for the D. Isidoro as injured.

The Auto 17 December 2015 of the Court of Instruction No. 4 L'Hospitalet de Llobregat was declared insolvent convicted, remembering to require the subsidiary civil responsibility SF, S.L., The amount.

He was seized the sum of 3.819,82 €. Also, He assumed the costs of legal assistance and representation by counsel in such proceedings.

SF, S.L. He filed an action for payment against Allianz, S.A., en base al insurance contract signed by both parties. He claimed that Allianz will pay 42.150,98 € and to compensate society, as applicant, the sum of 3.819,82 € compensation for the judicial seizure, and the sum of 7.001,90 € in respect of legal aid and legal representation.

Primera Instancia

By the Court of First Instance No. 55 Barcelona judgment was delivered on time 15 February 2018, estimating the lawsuit filed by SF, S.L., condenando in ALLIANZ, S.A. to pay the sum of 42.150,98 € for D. Isidoro and 10.821,72 € to the plaintiff, subtracting the sum of 150 € in franchise concept, plus interest and costs procedural.

Provincial Court

by Allianz, S.A., I was appealed.

He gave the following reasons:

*first plea: lack of coverage of the insurance policy. It was excluded from risk coverage, damages and consequences that occur during or as a result of willful misconduct or gross negligence of the policyholder insurance, and because the attack happened outside working hours.

*second reason: pluspetición regarding lawyers' fees and Attorney.

*third plea: lack of active / share standing to claim payment for D. Isidoro.

By 19th Section of the Audiencia Provincial de Barcelona, all grounds were dismissed.

Before analyzing each motif, He highlighted the principle of immediacy in relation to the assessment of the evidence on appeal. Express, in relation to the Order issued by the Audiencia Provincial Date 1 March 2019, that "Civil proceedings must be concluded ab initio for respect for the Probatica assessment made by the trier instance, except, exception, to show clearly that, first, there is an inaccuracy or manifest error in the assessment of the evidence or, en segundo lugar, that the factual story itself is dark, inaccurate or doubtful, unintelligibly, incomplete, inconsistent or contradictory. Without all the above is simply attempting to modify the criteria of the judge concerned by the appellant. "

As for the dismissal of the pleas, Section considered He not brokered fraud by the applicant, so risk itself was covered by insurance for trying to cover liability of the insured:

“(….) not aware of actions the applicant had insured entity involved in the production of the claim with malice or bad faith, inasmuch as the liability that is imposed sentence derives from the provisions of Article 120.4 of the Penal Code as vicariously liable for the employee responsible for the damage, por lo que el riesgo objeto de este procedimiento se encuentra cubierto por la póliza de seguro suscrita entre ambas partes.

He highlighted the procedural principle of prohibition of "mutatio libelli" dismissing the plea of ​​pluspetición. "The second instance can be extended only to what has been the first instance, not admitting the introduction of new issues " (SSTS 30 November 200 and 27 September 2000).

As regards the locus standi / action to demand payment for D. Isidoro, Section it considered that the action brought was no repeat (art. 1158 CCivil), but an enforcement action contractual (art. 1124 CCivil), as stated in the policy:

“(….) the civil liability of the applicant derives not an act or willful crime attributable to it and that would be excluded from insurance coverage by clause 3.7, but it is subsidiary liability imposed in judgment pursuant to Article 120.4 del Código Penal.


When the insured person is condemned as subsidiary civil responsibility in criminal proceedings, and there is no willful misconduct or gross negligence on their part, and the insurer does not go out of court for payment of the amounts due, the insured may bring an action for contractual compliance in the art collection. 1124 CCivil, with the aim that the insurance company, make payment of the compensation due.

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