Life insurance and health questionnaire in Mallorca

seguro vida mallorca

 

Seguro de vida: the importance of the type of questions on a health questionnaire

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The questions contained in the life insurance health questionnaire should allow the insured to be aware that, if not mentioning their pathologies, you are intentionally hiding relevant data for accurate risk assessment.

Section 4 of the Provincial Court of Palma de Mallorca ruled on 28 May 2020, with No Resolution 206/2020, estimating the appeal filed by Dña. And Mrs. Sonia. Tatiana as successors to the late D. Eutimio, against GENERALI SPAIN, S.A., INSURANCE AND REINSURANCE (GENERALI SEGUROS, onwards).

Condemned the insured company to pay the insured capital after the production of the claim, 150.000 € plus item interest 20 LCS, after considering that D. Eutimio did not act with intent or serious fault, so that did not breach art. 10 LCS when you answered the questions on 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

D. Eutimio suffered the loss of his daughter Dña. Elisa the 23 September 2014, developing a depressive syndrome with cognitive decline and behavior disorders. Several follow-ups and medical reports were performed.

In 2015, it was concluded by professionals, that he had a mild cognitive deficit picture.

D. Eutimio claimed to be in excellent health and feeling better every day regarding the depression associated with the death of his daughter.

The 16 November 2015, D. Euthymius hired a seguro de vida. The health questionnaire was conducted via telephone, denying that he suffered from any neurological disorder, psychological or psychiatric problems.

The 4 November 2016, the INSS stated that D. Euthymius was in a situation of permanent disability, to a degree of great disability, by Alzheimer who suffered in severe phase.

The 4 October 2017, el Juzgado de Primera Instancia nº 12 of Palma de Mallorca passed sentence, declaring D's incapacity. Euthymy for Alzheimer type dementia picture with cognitive impairment.

GENERALI SEGUROS, refused to pay the insured capital after the production of the accident, because it alleged that the pathologies originated before the effect of the policy.

Primera Instancia

by Dña. Andrea, tutor of D. Eutimio, A claim was filed for the insured capital after the production of the claim against GENERALI SEGUROS.

The Court of First Instance No. 13 of Palma de Mallorca sentenced the 6 February 2019, refusing the application.

The Court considered that D. Euthymi concealed from the insurance company that he had a series of neurological and psychiatric problems stemming from depression due to the death of his daughter. Therefore, for the Court, D. Eutimio acted with intent or guilt when answering the health questionnaire.

Provincial Court

Ms.. Andrea filed an appeal. However, during the judicial procedure, D. Euthymius passed away, so they personified as successors, Ms.. And Mrs. Sonia. Tatiana.

In the appeal, it was alleged that Alzheimer's disease was diagnosed post-life insurance subscription, and that said disease could not be confused with depression que D. Eutimio suffered due to the death of his daughter Dña. Elisa.

The Section did not agree with the Court, bringing up the STS 81/2019, of 7 February, in which it was stated that "The infringement of the duty of accuracy in the response to the questionnaire cannot be alien to the knowledge by the policy holder of the relevance of the circumstances on which he must declare", not violating the art. 10 LCS.

The Section granted the appeal because it considered that there was insufficient evidence base to conclude that, with the questions that were asked to D. Euthymius in the health questionnaire, he should know that he had to answer affirmatively as to whether he suffered from neurological diseases, psychiatric and psychological, as he was not diagnosed nor did he receive specific pharmacological treatment.

In depression over the death of her daughter, I was getting better day after day, and he was not specifically asked about it either.

Ultimately, for Section D. Eutimio you did not act with intent or serious guilt when you answered negative to those questions in the health questionnaire, because Alzheimer's disease manifested itself after the policy was contracted.

Conclusion

The duty to declare the risk is linked to the duty to respond to what the insurance company asks., on which fall the consequences of presenting an incomplete health questionnaire, generic or ambiguous, with questions that do not allow the insured to link their medical history with the disease causing the loss.

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