Seguro de vida, health questionnaire and ignorance of the disease

Seguro Vida Madrid

Insurer ordered to pay for life insurance, because the insured was unaware of the disease when he was presented health questionnaire

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Therefore, there was no fraud in the insured when He failed to indicate in the health questionnaire pathology did not know and had not been diagnosed.

The Provincial Court of Madrid, 12th section, He has decided in its judgment of 28 June 2019 and No.. resolution 315/2019 litigation in favor of the insured. In this case, He signed a particular contract life insurance and disability with an insurance company. The insured was subjected to cuestionario de salud. Two years after the insured was diagnosed with a disease that eventually incapacitate. The insurer refused to pay compensation for the insured risk have occurred, claiming that, at the time of completing the questionnaire, he omitted his illness. The Court concluded that, at the time of signing the policy the insured person was not diagnosed with the disease and that he could not demand, an average citizen, a proper diagnosis. Especially when even the insurance underwent medical examination the insured.

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 1 May 2002 D. Blas signed a contract life insurance and disability with BILBAO / ORBIT CIA ANONYMOUS INSURANCE AND REINSURANCE (onwards, ORBIT).In the contract the payment of an initial annual rent stipulated 1.082,14 €, with an annual revaluation until maturity or until death or rehabilitation. In the month of June 2004, D. Blas was diagnosed with liposarcoma which resulted in successive surgeries. Consequence of this, in the year 2012 D. Blas was recognized in Grade Total Disability 65% by the social services of the Community of Madrid.

The 15 October 2014, By resolution of the INSS, He obtained degree of permanent disability in absolute for all work. So, D. Blas asked the insurer to pay adequate compensation to the policy signed.

The insurance company refused on the grounds that not appropriate compensation for having hidden in the questionnaire previously existing illness. Annulling the policy effective the day 1 of March 2015.

Given the refusal, D. Blas filed suit against the insurer ORBIT.

Primera Instancia

On 14 September 2018 the Court of 1st Instance and Instruction No. 6 Leganes gave judgment on the matter for which he dismissed the claim in its entirety.

The judge understood that, indeed there was a data hiding by the applicant in the health questionnaire when contracting the insurance policy.

Provincial Court

D. Blas appealed against the judgment at first instance. He denounced him as the sole plea error in assessing the documentary medical evidence.

So, what the appealed decision was based was that the tumor that caused the diagnosis in the year 2004 It had an evolution of three or four years.

But the truth was that until that date, D. Blas unaware of their disease and therefore did not hide data, well "He was unaware of the start of the oncological process before June 2004. Since there is no medical documentation evidenced otherwise, this was, knowledge of the disease, in particular a liposarcoma.

D.Blas, at the time of signing the policy of the insurance contract he was not aware of the disease suffering. Disease that would generate five surgeries and would cause the declaration of permanent disability twelve years after the insurance contract.

So, Article. 10 Law of Insurance Contracts (LCS) regulating the deber de declaración del riesgo as a fundamental obligation of the policyholder to the insurer may know precisely the hedged risk.

While the new scope and effect of the article was presented at the STS 726/2016 of 12 December alluded to No.. 72/2016 of 17 February by which: “La jurisprudencia de esta Sala, on the duty of risk statement regulated in art. 10 LCS ... it is stating that that provision comes configured ..., más que un deber de declaración, a duty to reply or response from the policyholder to be asked by the insurer, ya que este, because of their greater knowledge of the relevant circumstances ... should ask the contractor deems appropriate data that.(…) Accordingly, for the law's obligation to declare policyholder to the insurer, before the conclusion of the contract and according to the questionnaire that is submitted to it, todas las circunstancias por él conocidas que puedan influir en la valoración del riesgo, is fulfilled <<contestando al cuestionario que le presenta el asegurador, el cual asume el riesgo en caso de no presentarlo o hacerlo de manera incompleta>>”.

As in the same direction kept the STS 693/2005 of 23 September, about secured exemption from payment of the agreed provision, “only occurs in cases of gross negligence or intent of the policyholder, by failing to express circumstances known to decisively affect the risk assessment.

The 28 June 2019, 12th Section of the Provincial Court of Madrid issued its judgment in No.. resolution 315/2019 estimating demand.

The Court considered that, in the case prosecuted, It was before a seguro de vida which involved answering a questionnaire. In this questionnaire, in section "current health status " He not alluded to conditions that were not subject to medical treatment, hospitalization or surgery.

Thus, the applicant replied truthfully to questions as at that time it consisted not diagnosed any disease.

So, until the applicant has not admitted for "emergency" the 31 of August 2004 Severo Ochoa Hospital in, He was not aware of the pathology suffered. And, It was following the practice of the biopsy 7 September of the same year when the sarcoma or tumor was discovered.

D. Leopoldo, family doctor who diagnosed D. Blas disease in the year 2004, He recorded that there was foreknowledge of it before.

And, D. Nicanor, Medical Oncology Service and specialist in the field, He specified that the only way to know the disease was by practicing a biopsy.

Therefore, difficult to assume that the insured pretend to hide the health questionnaire that disease. Y es que, although at that time suffered, He had not been diagnosed by any physician.

Nor it is provided by the insurance practice of medical examination of the insured, especially when it came to life insurance. Neither expert report demonstrating pre-existence manifests pathology, nor his medical diagnosis.

The Court noted that, “the omission of an injury that was not of concern characters ... and had not detected by the insured as a condition to its poor growth, considering that D. Blas is no specialist doctor, and He had not been diagnosed by any professional, It can not be considered sufficient reason for the insurance exemption recognized by the judging instance…”.

So that, It was necessary to consider jointly, the duty of diligence required of the insurance company. Stagecoach "would require not merely presenting a health questionnaire but, necessary--, the necessary medical examination to verify the statements of the proposer (SAP Valencia, sec. 7ª, 11 September 2007, SAP Madrid 17 September 2001)

In this sense it ruled the SAP Malaga 7 November 2000, noting that "the recent and progressive jurisprudence has interpreted such contracts so that no abuse arising from the effectiveness thereof when compliance by insurers avoid interpretive issues resolved the most favorable for the insured…”.

Therefore, the Court concluded that there was no diagnosis of the disease in the medical history of D. Blas until 2004 and after practice biopsy. So it hardly could be declared in the questionnaire pathology health insurance policy filled years before.

So, que D. Blas detected that a simple lump on her leg was a sarcoma and envisaging its evolution was inexigible and cruelly reproachable. Audience added that "You can not ask an average citizen than a simple package, mole or spot early detect malignancy and pathological consequences, It would imply ignoring the usual circumstances that arise and such serious conditions develop, and when changes occur or abnormal consequences when it comes to medical consultations ... ".

All of the above led the Court to exclude fraud or bad faith that is imputed to the insurer, because it was not proven to suffer, on the date of signing the policy, the conditions that led to their subsequent inability.

And, contrary to the criterion of Juzgadora instance, the Court considered that It was not met due to exonerate the insurance payment of compensation.

Therefore, the Court upheld the appeal filed by D. Bias against the first instance judgment and ordered ORBIT payment of the periodic benefit fixed in the policy for the insured loss. All this plus the sum of the accrued interest of art. 20 LCS.

Conclusion

There is fraud in the omission by ignorance and lack of diagnosis of a disease when completing the health questionnaire. You can not require an average citizen early detection of asymptomatic pathologies.

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