Life insurance and existence of fraud in the health questionnaire


The holder of a life insurance intentionally omitted a prior condition to being asked about the same, incurs fraud and the insurer has no obligation to indemnify


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There dolo o culpa grave by the policy to the contract a policy for life insurance when intentionally omitted, a disease already known. The deber de declaración del riesgo you have completed by answering the questions of the questionnaire. He health questionnaire filled by the employee of the insurance company with the answers to questions effectively made to the policyholder, it is valid.

There is fraud when, voluntarily, an inaccurate statement is made in the health, hiding and missing data relevant to the obligation of truthfulness.

The Supreme Court, Civil Division, in Case 4 November 2019, nº 572/2019, He has dismissed the extraordinary appeal for procedural infringement and the appeal brought by the insured, in one of these situations. It was signed by the secured a home equity loan, to which he was linked, life insurance covering the risk of death and the "total and permanent disability for any reason" (IPA hereinafter). A performing health questionnaire, the policyholder denied that was several years suffering from alcoholism when asked concretely, and he replied that his health was good and disease. The Chamber concluded that there was concealment declaring risk, because the insured denied knowingly suffering a disease, even if it diagnosed after the signing of the policy.

For, basically two issues arise:  the validity of the health questionnaire to be completed by the agent bank with the answers it provided taker, concealment and willful misconduct, when he asked specifically if he was habitual alcohol consumer. That refusal was evident to the contradict medical documentation about his health, which it was prior to signing the policy.

The Audiencia Provincial found that the health questionnaire had full validity, for, also, signature appearing, there were personal data necessarily had to facilitate the insured person. He also confirmed that demonstrated that hid crucial information for the purposes of risk assessment, finding directly related disease caused the subsequent recognition of the IPA.

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 29 March 2005 D. Celso signed a home equity loan with Caja General de Ahorros de Granada (currently Banco Mare Nostrum, S.A.). In the loan was linked, brokered by the bank itself, a seguro de vida Life insurance with Unicorp, Insurance and Reinsurance Company, S.A. (Caja Granada Vida succeeded by, Insurance and Reinsurance Company, S.A., after partial transfer of portfolio), covering, not only the risk of death, but also that of "total and permanent disability for any reason" (IPA). He was appointed to the credit institution as first beneficiary of the outstanding principal, plus up to 60 days of interest in case of death or IPA.

When he proceeded to fill out the health questionnaire, the policyholder refused "have suffered or suffer some illness that had forced to interrupt their work for more than fifteen days over the last five years, He has been sick or accident and have consumed or habitually consume alcoholic beverages ", responding affirmatively that he was in good health and without any disease.

The 12 December 2012, sentence was handed down by the Social Chamber of the Superior Tribunal of Justice of Andalusia, confirming the sentence 20 June of the same year by the Labor Court No. 1 from Granada, which he had declared the insured status of IPA derived from common disease with effect from 17 February 2011.

The insured date 7 May 2013 She reported the incident to the credit institution, by letter, accompanying several documents, none based on health history. insurance, meanwhile, he twice required medical documentation to be provided specific, ignoring. The bank, meanwhile, He followed by charging loan fees, although the insurer returns to the insured premiums earned after the date of recognition of the IPA.

The 15 April 2014 D. Celso filed suit against Caja Granada Vida, Insurance and Reinsurance Company, S.A. y Banco Mare Nostrum, S.A. He requested compensation insurer canceling the loan and the repayment of premiums paid by himself from the 30 March 2011, the alternative, since 7 May 2013, statutory interest. A credit institution, to return the repayment of the mortgage loan collected from March 2011, including the proportional part of the month of February 2011, plus legal interest from your payment or, least, since 7 May 2013. In the alternative, if the bank were acquitted, an order that the insurer.

Both Caja Granada Vida as Banco Mare Nostrum opposed the demand, requesting their dismissal.

Primera Instancia

The 11 September 2015, el Juzgado de Primera Instancia nº 6 from Granada, He gave judgment dismissing the lawsuit with the express imposition of costs to the plaintiff.

The Court considered that the credit institution had no passive standing to be a party to the non-life insurance. Also that, despite having secured the sinister statement, This communication was untimely and incomplete, without providing the necessary medical documentation. Although this was not enough to appreciate willful misconduct or gross negligence on the insured, to exonerate itself for breach of contract because the insurance attributable to the insurance taker.

Regarding the duty of the risk statement, The questionnaire was filled not only with the answers given by the insured, later, signed, but also he denied having or have some kind of disease, It is these relevant data, because they determined that the Social Chamber of the Superior Court of Justice delivered its judgment in Andalucía date 12 December 2012, declaring permanent total disability of the plaintiff for common illness. Also, He said to be in good health, although, in accredited medical documentation, It evidenced otherwise.

All this, He led the trial judge to release the insurer from the obligation to compensate.

Provincial Court

The applicant appealed.

The 20 April 2016, Section 3 of the Provincial Court of Granada gave judgment dismissing the appeal, with imposition of costs to the appellant in the second instance.

The Audiencia Provincial considered that, despite the absence of malice or gross negligence on the insurance does not provide medical documentation required, yes that valued it as a lack of collaboration dismissed the breach of contract by the defendant.

A questionnaire was granted full validity, because it was filled with the answers given by the insured person, that only he could know, plus sign it. As for the answers given in the questionnaire, It exposes the same as the Court of First Instance, and breach of the duty of declaration of the risk and the obligation of truthfulness.

Referring to the claim of premiums paid over, it was proved that was returned by the Underwriter the total amount of years 2012 a 2015, por un importe total de 718,81 euros, by income into account date 8 May 2014, discarding the raid known to be accomplished before the filing of the complaint.

Last, He did not consider that contract or by the insurer or credit institution by default occurs, as he discussed in first instance, because it was proven that the only one that failed was the insured, both hiding information about your health, as untimely and incomplete communication of the incident.

Supreme Court

The plaintiff filed an extraordinary appeal for procedural infringement and appeal.

The extraordinary appeal for procedural infringement refuse to admit as unfounded. A new assessment was intended to test, both documentary and testimonial, not seen any error exceptional cases legally accepted.

On appeal, It was based on two grounds:

  • The first plea alleges infringement of Article 10 Law of Insurance Contract, as the insured merely sign a materially questionnaire completed by a third, not being able to formally considered valid.
  • The second complaint alleges infringement of Article 86 LCS, reasoning that there Incontestability of life insurance when not prove that there malice or gross negligence of the insured.

The 4 November 2019, the Civil Chamber of the Supreme Court delivered its judgment dismissing, both the extraordinary appeal for procedural infringement as the appeal.

The Chamber found, after the assessment as a whole test, he considered proven that the health questionnaire was completed with data provided by the policy itself Insurance, It is tested in previous instances that the appellant hid your health information to specific questions, not generic.  These data were known by himself at the time of signing the policy, influencing your answer in the assessment of risk, directly related to the disease that determined the recognition of its absolute permanent disability.

The denial resulting data of medical documentation did appreciate the trial court that there was a fraudulent action by the insured, a hiding, knowingly, information about your health, known to him, and they related to questions of health questionnaire, not being, therefore, Article application 89 LCS in favor of the policyholder, for nothing she prevents him from it to deny what was already on previous medical documentation to the signing of the policy.

Therefore, He dismissed the appeal, confirming the judgment handed down on appeal, and condemning the appellant to pay the costs, losing deposits constituted.


In underwriting life insurance, before carrying out a health questionnaire, There obligation to declare the risk, appreciate fraud when, to specific questions about own data you know or can know and are relevant when assessing the same, the hidden secured such information consciously, although the disease can be diagnosed after the signing of the policy.

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