Seguro de vida: Without malice or gross negligence, no right to compensation

If the insured person suffering an illness unknown may not manifest in the health questionnaire and not act with malice or gross negligence

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The insurer may avoid compensation for life insurance if the insured acted dolo o culpa grave.  It is the insurer who must prove that the insured knew she had a disease at the time of filling the health questionnaire and that intentionally omitted.

This has been resolved Section 1 of the Provincial Court of Murcia in Case 13 May 2019 nº 167/2019.   The Court has ruled in favor of the policyholder unable to confirm that the cause of the pathology preexistiera incapacitated at the time of signing the 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

The 16 December 2004 D. Joaquín signed a disability insurance company with CAJAMAR LIFE, SA INSURANCE AND REINSURANCE (onwards, CAJAMAR LIFE). The insured capital were 30.000 euros.

Along with the policy he will be complimented one cuestionario de salud.

The 14 October 2009 D. Joaquín signed new insurance contract with the same company. In this case the insured risk was the death and the amount insured 20.000 euros.

The 11 July 2014 D. Joaquín was operated by a Neoplasia of Ciego.

The 8 April 2016 the Provincial Directorate of Social Security told D. Joaquin situation Total Permanent Disability degree for your usual occupation. The trigger for such a resolution residual disease was a clinical picture of Neoplasia of Ciego, advanced Arteotrombosis, recurrent ulcer, Oncology and Cardiovascular Pathology chronic and severe peripheral, etc..

D. Joaquín filed prior complaint against the decision by the rating of the residual picture.

The 14 June 2016 the Provincial Directorate of Social Security declared him situation Permanent disability degree of absolute for all kinds of work.

Given these facts, D. Joaquín reported the incident to the Insurance Company to proceed to the payment of the compensation agreed.

The 22 November 2016 the Insurance Company communicated the rejection of his request on the grounds "which are mismatched data reflected health at the time of hiring policy, with data emerging medical report provided and directly affect the risk assessment”.

In another letter of the same date the previous, He told the Insurance Company D. Joaquin on the pathologies suffered by him "they met ... they had implied that the contract had not been formalized”. The letter indicated to others, What stay canceled the policy for all contracted guarantees.

D. Joaquín filed an action for contractual compliance with the Insurance Company CAJAMAR LIFE.

Primera Instancia

The 25 November 2018 the Court of First Instance No. 5 Insurance Molina gave judgment dismissing the lawsuit.

For instance trier of controversy on whether redicaba by the actor He committed fraud or gross negligence, or reservations or inaccurate statements in the health questionnaire.

He understood that in both questionnaires the applicant replied deceitfully To the question 3, what did he say: ¿Have or have had any heart condition ,... blood pressure, Cancer (any kind) diabetes, liver disease or contagious infectious disease, as hepatitis (any kind)…?. The actor answered this question negatively.

Also in relation to the question 5 questionnaires about whether they had undergone any surgery or if he had to be hospitalized. The actor replied negatively again.

The negative answer to both questions, the actor failed pathologies featuring a medical history. Specifically,D. Joaquin was suffering from post-transfusion hepatitis since age eight, in 1996 He was diagnosed with post-transfusion HCV liver disease, in the year 2007 He was diagnosed with Wolf-Parkinson-White syndrome and diabetes mellitus and in June 2014 Neoplasia of Ciego. Also, the 11 June 2014 he underwent a right hemicolectomy.

On the question of the questionnaire 11 July 2014, on if they had suffered illness that had forced to interrupt their work over 15 consecutive days in the last five years, also answered negatively. Since it was declared for temporary disability from the day 11 June 2014.

Therefore the judgment dismissed the lawsuit filed by D. Joaquín concluding that the plaintiff committed fraud in completing the health questionnaire.

Provincial Court

Instance judgment against the plaintiff appealed.

Actor argued in its appeal the error in determining the object of the process, infringement of art. 218 LEC for extra petita incongruity and helplessness. He argued that the original ruling made no claims resolved, altering the cause of action outside which allowed the novit iura curia.

This is because contractual compliance action was brought by Absolute permanent disability regarding the policy written in the year 2004. He added that compliance with the signed policy is not applied in the year 2014 as this ensured the death and this obviously had not occurred.

Second, invoked error in assessing the evidence, infringement of jurisprudence and art. 89 in relation to art. 10.3 Law of Insurance Contracts (LCS) and absence of fraud. He noted that diseases leading to permanent disability absolute They were diagnosed after the signing of the policy. So, in the year 2004, when it entered the first policy object procedure, there was no medical history that will allow the actor to be aware of the existence of any problems.

In the trade date, the actor was not aware of the sufferings that 12 years later they would provoke a situation of absolute permanent disability. The key date for assessing the clinical and pre-existing illnesses was 16 December 2004.

Since oncologic disease was detected in July 2014 and diabetes mellitus and parkinson Year 2007. HCV hepatopía on this postransfusional not had an impact in cancer and cardiovascular box. So that the omission to this disease did not prove the existence of fraud or gross negligence.

The 13 May 2019 Section 1 of the Provincial Court of Murcia gave judgment estimating the resource.

The insurance policy whose effectiveness was intended was signed in December 2004. It is so, absolute permanent disability recognized by actor was awarded as a result of neoplasia blind. And, both the cardiac event, neoplasia as blind or right hemicolectomy were after the signing of the policy.

On the post-transfusion hepatitis actor suffering from 6 years and who was diagnosed in 1996, He was not proven its influence on total disability recognized in the year 2016.

For Hearing, I could not say that the pathologiesare the determinants causing pathologies such incapacity, so that these have befallen a consequence of an existing policy to enfermad, known and deliberately omitted by actor.

Therefore, Hearing estimated the appeal filed and ordered to pay to CAJAMAR LIFE D. Joaquín the sum surplus 30.000 euros after the cancellation of the outstanding loan repayment.

Conclusion

Not act with malice or gross negligence by the insured filling the health questionnaire without showing suffering pathologies not know them. So, You shall be entitled to compensation for the seguro de vida.

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