Life insurance and ambiguity in health questionnaires

seguro de vida

 

There is no data hiding by the policyholder of a life insurance when the health questionnaire is ambiguous or overly generic

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The insured has a duty to respond to what is asked by the insurance company through the questionnaire. The insurer must bear the consequences of submitting incomplete or deficient questionnaires.

Section 3 of the Provincial Court of Merida in Case 24 September 2019 (Res. No. 164/2019)  He resolved in favor of the insured in a case life and disability insurance.  When the insured he signed the policy and health questionnaire filled, it would undergo a biopsy. The questionnaire asked nothing specifically to respect. Time after intervention led to a serious pathology which led to the declaration of failure of the tomadora. The insurer refused to pay liquidated damages alleging fraud and / or gross negligence by the insured at the time of signing the questionnaire. The Court concluded that there can be no willful misconduct or gross negligence on the policy of insurance when the questionnaire is presented is defective, it does not allow the insured knows the importance of declaring all circumstances that may influence the risk statement.

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 6 June 2011 Ms.. Florence signed a policy seguro de vida the insurer RURALVIDA S.A., INSURANCE AND REINSURANCE. The policy also covered with the death, the risk of incapacidad permanente absoluta the insured.

The guaranteed capital in the policy was 135.000 euros.

Ms.. Florence at the time he signed the policy knew they were subsequently biopsied,. Concluding that he was suffering from breast cancer by finally was declared incapacitated.

The insurer refused to pay the compensation provided to the insured risk of disability.

Ms.. Florence brought an action seeking an order the insurer to pay the compensation agreed.

Primera Instancia

The 15 January 2019 the Court of First Instance No.,,es,of Almería dictated auto initiating the phase of liquidation of Construcciones Nativen S.L,,es,the insured initiated payment proceeding against the insurer in the amount of € 161,086.24,,es,the insured filed ordinary lawsuit for the same amount against the insurer,,es,who opposed, alleging the prescription of the action brought against him,,es,de Madrid ruled in favor of the insurer. & nbsp; The judge understood the action prescribed based on the art,,es,LCS that establishes a term of two years,,es,The dies a quo would be the,,es,two years after MELV was able to take action against the debtor,,es,The claim filed,,es,the action was prescribed,,es. 2 Almendralejo gave judgment dismissing entirely demand. Based on the medical documentation provided that "although the plaintiff had not been diagnosed with breast cancer at the time of signing the insurance contract, if he knew ... it would be underwent surgery for a biopsy, invasive test ... larger, which they were concealed from the insurer clearly in breach of the duty of truthful information required by Article 10 of the Insurance Contract Act ".

Provincial Court seguro de vida

Instance judgment against the plaintiff appealed, alleging error in the assessment of the evidence when determining whether or not there was a breach of the duty of disclosure by the insured: not  there was malice or gross negligence of the insured at the time to answer health questionnaire.

The appellant argued that the questionnaire was generic and incomplete. Also, that the answer to this He did not hide any illness or medical test.

In the questionnaire she asked about performing surgery, but really biopsy could not be considered as such.

He added the appellant that the director of the bank branch said that after signing the policy knew who had been diagnosed with cancer. But the insurance He did not exercise the option to terminate the contract under Article. 10 LCS.

The insurer defendant objected. He alleged that, in any case it was excluded risk coverage by clause 3.3. of the general conditions of the contract. This clause excludes from insurance the accidents or illnesses originated before the entry into force of insurance. And this even though its consequences will manifest during the term of the same.

The 24 September 2019 Section 3 of the Provincial Court handed down its judgment Merida, estimating demand. The purpose of the debate was the fulfillment, o no, by the insured, of the "duty statement of the circumstances that could have an influence on the determination or evaluation of the risk being hedged (10 LCS), in particular ... the statement on his health”.

The Court cited the judgment of the same section and date 6 March 2019 referring in turn to the sentence 6 July 2016. Such statements summarizing the doctrine on the duty of declaration of the policy of insurance, so that: “Article 10 Act 50/1980, of 8 October, of the Insurance Contract provides that the insurance policyholder is obliged to declare ... and according to the questionnaire that is submitted to it, all known circumstances that may influence the risk assessment, with the sanction of the insurer would be released from performing the services should be seen malice or gross negligence by the insured.

(…) It is therefore the duty of the insured to provide the most truthful and accurate statement of the risk ... To observe this duty of declaration of the risk, the company ... is at your required time to provide a questionnaire through which the insured is manifested. So the article itself 10 has the insured is relieved of this obligation if the company does not submit the questionnaire or when, aun sometiéndoselo, se trate de circunstancias que puedan influir en la valoración del riesgo y que no estén comprendidas en él. The declaration or distorted response to the questionnaire insured entails two consequences: First, the company recognizes the right to terminate the contract ... and, second, in the event that the accident occurs falsehood before meeting, the company is exempt from its indemnity obligation provided only upon gross negligence or willful misconduct.

(…) It has been stressed by the jurisprudence that the violation of the duty of declaration is to evaluate objective criteria ... whether such conduct frustrates the purpose of the contract for the company's providing inaccurate data or show an attitude of mental reservation that comes to disorient and drive to conclude a contract that had not agreed to have known the actual circumstances of the risk.

(…) It has abandoned the idea that the contractor of insurance should take the lead in this statement ... more than a duty declaration, a duty of reply or response taker what is asked by the insurer ...

(…) suffice it to recall the judgment of the Supreme Court 157/2016, of 16 March. It is recalled that Article 10 requires the insurer to the insured actually ask questions. Not enough to extend his signature to the end of the questionnaire: It needs to be asked.

(…)  if the insurer asks questions appropriate to the policyholder, it is freed from the consequences of that duty.

He remembered hearing the judgment of the Supreme Court No. 323/2018, of 30 May, by which: “The room must consider whether ...the questions put to him (to the policyholder) They allowed him to be aware that, by not mentioning their pathologies, I was hiding relevant data for accurate risk assessment.

Also, Court cited the ruling of the Supreme Court 81/2019, of 7 February, a case of epilepsy. In this it was stated that, "that the policyholder had knowledge of his episodes of epilepsy and not report it to the insurance contract, It is a factual data which is not reticence, because it was not established that they were made to the policyholder or questions, therefore, he is imputable to him the lack of mention of its episodes ".

The duty of the risk statement is a duty to respond to the question insurer to the policyholder to the wording of the health questionnaire.

The Court did not share the conclusion of the first instance judgment,  but he considered that the insurer should bear the consequences of submitting a questionnaire generic and vague and evidently, incomplete.

The questionnaire object Litis, He was asked if the insured in recent years he had visited a doctor. The insured answered affirmatively, referring to "normal reviews. To questions about whether he suffered any illness, physical or mental defect or, if it had been surgically intervened or was pending, He responded negatively.

When the questionnaire was signed, the insured was undergoing, long since have clinical and mammographic control and was awaiting a mammogram. This clinical control was used as a basis for the statement that it was under normal reviews.

The fact that it did not consist in the questionnaire such circumstances not necessarily imply that the insured acted with malice or gross negligence.

Concerning consideration of the biopsy and surgery, Hearing determined that "regardless of how it is conceptualized from a medical standpoint ... can hardly be understood as surgical intervention within the meaning or concept that a person without special knowledge in medicine ".

The Court concluded that, the insurer must use due diligence to ask the questionnaire other specific diseases, such as cancer.

Finally, She hearing alluded to the judgment of the Supreme Court No. 621/2018, of 8 November. In this, the existence of data hiding discarded takers in cases of ambiguous or generic questionnaires too.

He did not appreciate the hearing or intent, or gross negligence or inexcusable lack of diligence on the insurer to the answer to the health questionnaire. Therefore, the insurer should bear the consequences of filing an inaccurate questionnaire and therefore, inadequate to assess risk.

Finally, on the clause introduced in the general conditions of the policy, the Court noted that it was not a risk clause boundary, but limited rights. This is because it was limiting the right of the insured to receive the capital in case of diseases originated before the entry into force of the policy, even though they manifest later.

So, said limiting clause was not signed by the insured. Firm even consisted in the document containing the particular conditions of the policy.

was that, although that letter was "bold", namely, highlighted in the text, the limiting clause it was with a very large number of exclusions risk. So it could not be understood as particularly prominent of the remaining provisions of the contract, in the sense that demanded art. 3 de la LCS.

Therefore, the Court upheld the appeal of existing appeal by the applicant. He condemned the insurer to the payment of compensation in the amount of 135.000 euros plus interest provided for in art. 20 LCS.

Conclusion

There is no malice or gross negligence on the policyholder of a life insurance answering questions from the health questionnaire if it is ambiguous, generic or incomplete. In this case the insurer must pechar with the consequences.

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