Combined company insurance and limiting clauses

clausulas limitativas contrato seguro

In a combined business activity insurance contract, limiting clauses that do not meet the requirements of art. 3 LCS se tendrán por no puestas y lasoscurasse interpretarán a favor del asegurado

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According to him art. 3 LCS, "The general conditions may not be harmful to the insured, (…) being written clearly and precisely, highlighting in a special way the limiting clauses of the rights of the insured, which must be specifically accepted in writing. "

The 20th Section of the Provincial Court of Madrid passed sentence on 2 March 2020, with No Resolution 103/2020, dismissing the appeal filed by MAPFRE. Fully confirmed the judgment handed down in the first instance regarding the assessment of the clauses of the policy contracted by D. Landelino.

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. Landelino, owner of a vehicle workshop, contracted with MAPFRE a combined insurance for business activities.  There was an error in refueling a vehicle, with the consequent breakdown. The workshop was ordered to pay the owner of a vehicle for negligence. D. Landelino claimed this amount from MAPFRE. This one opposed. He argued that the amount he was claiming was not covered in the underwritten policy. Article 58 of the policy indicated as non-covered risks the following:

a) Damage suffered by the different parts or parts of the vehicle on which it has been or is being carried out repair work, inspection, review or maintenance of the activity covered by the insurance, as well as the elements of necessary manipulation for the revision, maintenance or repair where appropriate.
f) Claims originating from faulty mixtures, errors or insufficiencies in the replacement, change, checking or filling any liquid or vehicle levels. By way of example, but not limiting: fuels, hydraulic, brakes, ABS, antifreeze oil.

According to Mapfre, the general conditions had been expressly accepted by the plaintiff, when referring to them in the particular conditions.

D. Landelino filed a lawsuit.

Primera Instancia

By the Court of First Instance and instruction nº 3 Coslada's sentence was passed on 14 May 2019, partially estimating the demand filed by D. Landelino. MAPFRE ordered to pay 7.051,86 € plus the interests of the art. 20 LCS from 28 June 2013 for the payment D had to make. Landelino to the owner of a vehicle, after being sentenced to pay for a repair he made in his workshop, after incurring professional negligence.

The Court classified the controversial clauses as limiting the rights of the insured and not limiting the risk, not being opposable to the insured. It concluded that said clauses would not be opposable to the insured, by not meeting the requirements that art. 3 LCS required so that the insured could be linked to them.

Provincial Court

MAPFRE filed an appeal. He alleged that the judgment handed down in the first instance made an error in the evaluation of the evidence and that the exclusion clauses established in article 58.1.a should be applied.; 58.3.f of the special conditions of the complementary coverage of civil liability of workshops, referring generically to the other exclusions alleged when answering the demand.

Both motives were dismissed.

The Section shared the assessment made in the first instance of the limiting and delimiting clauses.

It brought up the STS 272/2016, of 22 April, He is expressing that "When a specific regime was established by law so that certain general conditions of the insurance contract would be valid, the clauses restricting the coverage or the compensation expected by the insured were being considered precisely. These clauses may be valid, but for this it is required that the insured has known the restrictions they introduce -that is, not surprise you- and reasonable, that they do not empty the content contract and that they do not frustrate its economic purpose and, therefore, not be deprived of their cause […] It is precisely when there is a contradiction between the clauses that define risk and those that limit it, when a surprising exclusion can occur.

Ultimately, when a certain coverage of a claim is objectively and reasonably expected by the insured, for constituting a natural benefit of the arranged insurance modality, it is necessary that the pre-established restriction has the additional guarantee of knowledge implied by the regime of the limiting clauses, so the contractual effectiveness of the surprise conditions is conditioned to the requirements of art. 3   of the LCS. ”

 MAPFRE did not prove that it reported the exclusions that it now intended to enforce,  at the time of contracting the policy.

"When there are doubts about the scope of certain contractual provisions, derived from an insufficiently clear wording, the hermeneutic criterion contrary to the one who has drawn up the contract must be used, principle contemplated in art. 1288 CCivil, as protection to the weaker contracting party and as stated above, in this type of serial hiring, the jurisprudence of the Supreme Court, considers transparency control applicable, in order to find out the will of the parties and the true content and object of the insurance. ”

On the other hand, it indicates the controversial clauses:

las cláusulas en que sustenta la ausencia de cobertura la entidad demandada, participate in the characteristics and must be classified as limiting the rights of the insured, as for themselves, do not correspond to the natural content of the object of the contract, consisting of covering the liability required of the insured as a result of the exercise of their repair shop activity vehicular, there is a clear contradiction between said clauses and those that define risk and therefore it's about amazing, in the terms indicated by the jurisprudence previously exposed, they require for their validez una aceptación expresa del asegurado en los términos que exige el artículo3 de la LCS.

Conclusion

“In the distinction of the clauses of delimitation of coverage and limiting clauses, The first ones specify the object of the contract and fix the risks that, if it occurs, give rise in the insured the right to benefit form the subject of insurance, while the second, limit, restrict, condition or modify the insured's right to compensation or the benefit guaranteed in the contract, once the risk has occurred. ” (STS 12/12/2019)

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