Seguro de daños, nonpayment of premium and Insurance Compensation Consortium

 

 

seguro de daños

Agreements between the insurer and the policyholder damage insurance do not affect the Insurance Compensation Consortium

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In the property insurance, agreements between the insurer and the policyholder on the late payment of the premium not binding on the Insurance Compensation Consortium.

The Supreme Court of 2 July 2019, No.. resolution 383/2019, it ruled on the merits of coverage by the Consortium of Insurance Compensation for damages arising from extraordinary risks. Specifically, when paying premium ordinary insurance it occurs belatedly by exist between the insurer and the policyholder a pact. In this case, payment came the same day the incident and, after six months after the expiry of the premium.

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

In 2008 SOTAVENTO S.A.U, he signed, for resort Playitas Resort,a policy all material risk / benefit loss / theft / damage to electronic equipment AXA General Insurance S.A..

For Playitas Golf Resort, also owned, He hired all risk insurance Life Insurance S.A..

Policies were affected by compulsory surcharge in favor of the Consortium, In accordance with art. 7 of RD. 7/2004, by the Legal Statute of the Insurance Compensation Consortium approved.

The 30 November 2010 there was an incident of extraordinary flooding that affected both properties.

LEEWARD S.A.U requested compensation for damages in the resort and the golf course. The insurance companies refused.

The Consortium agreed that should only take the extraordinary risk for damage to the golf course. This is because the premium and the surcharge payable to the Consortium had been paid prior to the incident (specifically, the 25 November 2010). Conversely, Consortium rejected the payment of compensation of the hotel complex. SOTAVENTO I had not paid the premium of the insurance policy before the accident.

The 30 November 2012 LEEWARD lawsuit filed against AXA ordinary trial, Life Insurance Bank S.A. (Generali currently Spain S.A.), Ace European Group Limited and the Consortium of Insurance Compensation.

He requested compensation for damages plus compensation for delay in meeting delivery in the following amounts:

  • Insurance Compensation Consortium: 911.778,78.-€ € 109.576,04.- main and late payment.
  • AXA Seguros S.A.: 13.200.-€ € 1.586,36.- main and late payment.
  • Ace European Group: 8.800.-€ € 1.057,57.- main and late payment.
  • life Insurance (Generali Spain): 000.-€ € 360,53.- main and late payment.

The 27 June 2013, by car, he had been withdrawn by the applicant in relation to the entity Generali Spain.

The 14 October was held terminate the process with respect to AXA and ACE European Group Limited to reach a compromise agreement.

processing with respect Consortium of Insurance Compensation continued.

In its answer to the complaint, the Consortium argued that it was not obliged to pay, “whether it was thought that the policy with AXA had been extinguished by the non-payment of the first premium (art. 15.I LCS) as if it was considered ... it was a renewal, as They had passed more than six months from the date of effect (art. 15.II LCS)”.

Primera Instancia

The 22 October 2013 the Court of First Instance No. 6 Las Palmas gave judgment dismissing the request made by the entity SOTAVENTO and acquitting the Insurance Compensation Consortium of the claims made against.

He explained that, as "the first policy concluded in 2008, the corresponding period between 10 May 2010 and 10 May 2011 It was the second renewal, so the course was regular premiums and, since payment is made 30 November 2010, after a period of six months referred to in art. 15.II LCS, the contractual relationship was extinguished “ipso iure” and automatically”.

Thus, application was the assumption excluding coverage provided the art. 6.k) Regulations on Extraordinary Risk Insurance.

Provincial Court

The applicant appealed against the judgment at first instance.

The 12 September 2016, 5th Section of the Provincial Court of Las Palmas, He issued a decision partially upholding the appeal. He condemned the Consortium to pay the applicant the amount of 908.762 euros.

Hearing understood that, when the accident occurred was in force policy AXA.

It could not be considered suspended or expired insurance policy, conforme al art. 15 LCS y 6.k) Regulations on Extraordinary Risk Insurance, especially, cuando There was no fault of the policyholder in the late payment of the insurance premium, because this is was satisfying without any objection with the agreement of AXA.

For years he had been accepted this procedure without compunction. Audience added that "the parties agreed to postpone granting flexibility and possible presentation to the collection of premiums for each annuity or term of ... that were renewed, whose premium was not paid at the beginning of the same ".

So that, “the delay in presentation for payment and payment of the premiumIt did not affect coverage.

In 2008, being the effective date of the policy 10/05/2008 a 10/05/2009, AXA insurance premium charged the 19 December 2008. In 2009 He claimed the policy effects May 2009 to May 2010 in July 2010. Namely, more than six months after the expiration of their term. In 2010, the premium paid on the same day of the incident (30 November 2010).

Audience added, Article. 15 LCS expected, as an exception, that parts be agreed payment of the premium at the later time. And, This pact also affected the relationship Consortium Insurance Compensation with the insured. This is because, the covenant was on the same insurance policy and not a separate insurance arranged directly with the Consortium.

Supreme Court

The Insurance Compensation Consortium filed an appeal for procedural infringement and appeal.

The 2 July 2019 the Civil Chamber of the Supreme Court,  He solved the dispute by its judgment no. 383/2019.

The Chamber dismissed the appeal for procedural infringement.

Regarding the appeal by the CCS, It was based on two reasons:

  • 1° Infringement of art. 6 k) Insurance Regulation extraordinary risks in relation to art. 8 of the Statute of the Insurance Compensation Consortium.
  • 2° Infringement of art. 15.2 LCS.

 

He considered the Chamber, Given the close connection between the two grounds, They should be analyzed together and considered the appeal.

For the High Court,  It was to secure "all risk property damage / loss of profit" signed in 2008, annual duration. He said insurance was subject to renewal effect 10 May 2010 to the 10 May 2011.

Application was art forecasting. 15.2 LCS on default by one of the following raw. This is because the premium for the period 10 May 2010 to the 10 May 2011 was not that of the first annuity, but a subsequent.

The Chamber cited its judgment in plenary 357/2015, of 30 June, what did he say:

“In the case of default by one of the following raw, section 2 Art. 15 LCS, provides that<<insurance coverage is suspended one month after the day of maturity. If the insurer does not demand payment within six months following the expiration of the premium it is understood that the contract is extinguished. In any case, the insurer, when the contract is suspended, it may require the payment of the premium for the current period>>.

Non-payment of one of the following raw ... presupposes that the contract, who had already begun to deploy all its effects before, It has been automatically extended, and neither party has denounced In terms of art. 22 LCS.

In these cases, from the default of successive bonus, during the first month of the contract remains in force and thus insurance coverage, so if the accident happens at this time, the company is obliged to indemnify the insured in the terms agreed in the contract and responds to the third party exercising the direct action of art. 76 LCS.

From the month following the non-payment of premium, and during the next five, while the borrower still does not pay the premium and the insurer has not terminated the contract, insurance coverage is suspended. This means that between the parties does not display effects, in the sense that the accident happened at this time, the insurance does not cover it against its insured (…)

After six months of non-payment of premium, without the insurer had claimed payment, the insurance contract shall be terminated automatically and legal effect of the provision itself, without the need to encourage the resolution by either party. Lógicamente, the incident occurred after the termination of the contract is not covered by insurance (…)”.

So, the reason that the Court considered that it was not excluded coverage Consortium was by agreement between the insurer and the policyholder. The Chamber considered that this reasoning of the Court was wrong.

Thus, Hall cited the judgment 58/2017, of 30 January, by which "although it may be accepted in the art. 15.2 LCS a qualification equivalent to that contained in art. 15.1 LCS (allowing otherwise stated in the case of default of the first premium or single premium) and remained unambiguous evidence of the pact, it would not be enforceable against the Consortium, whose legal relationship with the policyholder and the insured is different from the insurer, although emanating from the same policy.

Art.8 of the RD Leg. 7/2004, of 29 October, set Consortium obligation to meet the settlement of claims to policyholders "who have paid the corresponding surcharges.

For his part, Article. 6 k) Royal Decree 300/2004, excluded from coverage by the Consortium damage corresponding to "occurring prior to payment of the first premium or when ...is suspended or the insurance has been terminated for nonpayment of premiums

The application of these standards Consortium excluded the obligation to satisfy the policyholder-insured compensation when the premium has been paid after the incident, and after six months maturity.

Therefore, the Chamber granted the appeal. Dismissed a lawsuit filed by SOTAVENTO against the Consortium of Insurance Compensation for material damage.

Conclusion

Agreements between the taker-insured and the insurer concerning the possible delay and nonpayment of a premium, not binding on the Insurance Compensation Consortium. We are faced with different legal relationships, although emanating from the same policy.

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