asset liability management and direct action of the Law of the Insurance Contract

responsabilidad patrimonial administracion

The liability of the administration can not be modified in civil proceedings in which it is exercised direct action Article 76 Law of Insurance Contract


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The liability of the Administration which has become final, It can not be modified by going to the civil courts. The Judgment of the Civil Chamber of the Supreme Court 5 November 2019 solves a case in which the relatives of a deceased sued the insurer Administration, compensation for a higher amount which had been fixed in the administrative route.

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

Ms Ms Josefa Isabel and filed a complaint before the civil courts the 4 September 2009 contra Zurich Insurance PLC, insurer of the Catalan Health and Cap Sant Llatzer Terrasa and Hospitaller centers Mutua Terrasa, Clinic and Vall d'Hebron in Barcelona, infringement of lex artis medical, requesting 300.000 € distributed both by the late performance, lack of treatment of illness and subsequent death of his family D. Ildefonso.

It was declared admissible on demand 31 July 2013 and he called on the defendant to answer. The Catala de Salut appeared Servei volunteer defendant intervener status.

Primera Instancia

The Court of First Instance gave judgment on No. 11 December 2014, partially admitting the claim and ordering the insurer to pay a lower amount than requested. Specifically, were 62,484.51 € for Ms. Isabel and € 4,368.23 for Ms Josefa.

Provincial Court

The Servei Català de la Salut filed an appeal alleging lack of jurisdiction of the civil courts. The procedural representation of Zurich appealed, claiming the same reason.

Section of the Provincial Court of Barcelona gave judgment on 14 of the 16 February 2017, partially admitting the appeal made by Zurich and stating that the amount payable to the plaintiff is none other than the already recognized in the administrative record of liability. Such amounts already paid were € 52,418.76 and 4,368.23 for Ms Isabel € for Ms Josefa.

In the administrative file they had set these amounts were firm in the administrative way for not using appropriate resources at the right time to oppose it.

La acción directa no es subsidiaria de la acción contra el responsable, that procedural autonomy over what is concerning the insurance contract, but the contours of the responsibility of the insured; ie that procedural autonomy can not be inferred that it granted an autonomous or independent substantive law born of the single conjunction of the harmful event and generic coverage for liability insurance. Such insurance does not cover damage, but the responsibility (of other), por lo que la acción directa no hace a la aseguradora responsable sinogarante de la obligación de indemnizar”, so that the insurance, via direct action, You may be bound against the victim, beyond the contours of the insurance contract (the limited set of exceptions), but never beyond one's obligation to the insured generated Liability his cargo.En result, la acción directa contra la aseguradora en la vía civil no puede constituir una vía alternativa para impugnar actos administrativos que se dejaron consentidos”.

Supreme Court

Extraordinary appeal against that decision was lodged for procedural infringement and appeal by the representation of the applicants.

It was argued for the first resource a violation of Article. 218 LEC since the resuelvió appeal judgment on an issue that was not discussed or had been requested, as was the limitation of the amount to be paid.

También, a violation of the right to effective judicial protection regulated in art. 24.1 EC omission of the documentary evidence consisting in the withdrawal of the action of liability, generating helplessness.

As for the appeal, He argued a violation of the art. 76 Act 50/1980, insurance contract, and the interpretation of the same provision in relation to art. 57 Act 30/1992.

He also alleged infringement of the art. 1903.4 CC, Art. 148 of Legislative Decree 1/2007 and art. 20.6 and 8 Act 50/1980 previously alluded.

Regarding the extraordinary appeal for procedural infringement, the High Court rejected the first plea raised, understanding that there was incongruity and was not, the mention of the limitation of the amount, out of the order, by associating with the administrative decision in the coming set such amounts.

Regarding the appeal, the decision of the room entiendió that "Civil jurisdiction prejudicially can and should rule on the existence of management responsibility when exercised only direct action against the insurer, by expressly contemplate the art. 42 the LEC.

But that ruling will be for the sole purpose of the process, without involving competition to recognize civil jurisdiction to declare the responsibility of public administration secured (report of the State Council 331/1995 of 9 May).

Thus, to establish the liability of the Public Administrations, them acting directly or through a private entity, I should be addressed to the provisions of arts. 32 et seq of Law 40/2015, of 1 October, de Régimen Jurídico del Sector Público.

The administrative court is the only competent to condemn the administration and civil jurisdiction may only know their responsibility and consequences preliminary effects on the process.

As indicated Plenum Case No.. 321/2019, of 5 June: 

la aseguradora no puede quedar obligada más allá de la obligación del asegurado así como que la jurisdicción contencioso- It is the only administrative jurisdiction to condemn the Administration, while civil jurisdiction only knows its responsibility and consequences preliminary effects in civil proceedings, It has to agree that it would be contrary to the law that direct action would be used to challenge the administrative act, who had consented, a single reimbursement purposes. “Se conseguiría así el reconocimiento en vía civil de una responsabilidad de la entidad aseguradora distinta cualitativa y cuantitativamente a la que con carácter firme ha sido reconocida y declarada por el órgano administrativo legalmente previsto, which has been agreed by the injured to the not attend the contentious jurisdiction- Administrative, only one could revise Because of these reasons, el recurso fue desestimado.

“So: (i) fixed compensation, the insurer or the insured and extinguish itself can afford credit; (ii) once declared responsibility and compensation established, If the injured party does not attend the compulsory route, these statements stand firm management; (iii) may occur, potentially, all proper effects of joint obligations, in addition to payment, already mentioned; and (iv) compensation remains firm in administrative is the limit of the right of recourse to the art. 76 LCS reconoce a la aseguradora”.


Civilly can not change the decision in the administrative procedure. The resolution declaring the liability of the administration which has become final, It can not be modified through the exercise of direct action Article 76 the CHA.

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