Life insurance and previous diseases unknown by the insured

seguro de vida

If the disease was unknown to the insured, the insurer shall indemnify

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can not be included in the overall time limitations that preclude conditioned disasters occurred by above diseases unknown by the insured, and to be expressed during the term of the policy.

7th Section of the Audiencia Provincial de Gijon, in Case 10 October 2019 (Res. No. 324/2019) He resolved in favor of the insured party, to be not proved that the disease was already present at the time of the signing of the insurance policy. The minutes of the medical examination did not address any symptoms that regard. The insurance company has been ordered to pay compensation, plus interest Article 20 LCS.

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 4 July 2016, D. Antonio Carlos was subjected to a health questionnaire by an employee of the insurance company, after applying for insurance called "Helvetia Individual Risk Integral Life". This health questionnaire was void because D. Carlos Antonio did not undergo the medical examination was requested.

The questionnaire was held valid 20 December 2016 by the company doctor own, through recognition. He was asked if he had any surgery pending, hospitalization or medical consultation next, and he said no. He also answered negatively when asked if he made any sport as a professional or amateur.

The 17 January 2017 It was performed to D. Carlos Antonio MRI, He was diagnosed a condition that required surgery. The 11 May 2017 He was operated, causing him a physical disability, Clinical and functional until the day 13 November 2017.

Given that the policy came into force on 31 December 2016, the insured reported the claim to the insurance company after surgery, requesting payment of a daily allowance of sixty euros for the period of temporary disability, because it is what was stipulated in the policy taken.

The insurer refused to pay. The insured decided to bring demand, It is followed by Ordinary Procedure No. 1057/2018 before the Court of First Instance No. 7 de Gijón.

HELVETIA SWISS COMPANY, ANONYMOUS SOCIETY INSURANCE AND REINSURANCE opposed to it, requesting their dismissal.

Primera Instancia

The 26 April 2019 el Juzgado de Primera Instancia nº 7 de Gijón, gave judgment. He estimated the lawsuit filed by D. Carlos Antonio, and he condemned HELVETIA SWISS COMPANY, ANONYMOUS SOCIETY INSURANCE AND REINSURANCE pay the amount of 10.740 euros, Art interests. 20 LCS and legal costs.

Provincial Court

By HELVETIA SWISS COMPANY S.A.. INSURANCE AND REINSURANCE be appealed.

They alleged three grounds:

  • The primer motivo It was founded in breach of Articles 10 and 89 LCS because when the insured was submitted to the health questionnaire, he omitted his illness, and I had to know the time of signing the policy.
  • The segundo motivo It was based on the existence of a temporal limitation established in the general conditioning of the insurance policy. Coverage for temporary disability a daily allowance is provided for any reason from the seventh day. Pero para elcaso de enfermedad existía una carencia de tres meses, o sea la cobertura pactada comenzaría una vez transcurrido dicho plazo desde la formalización de la póliza”. As the disease was diagnosed the 17 January 2017, the loss would be out of coverage, according to insurance company.
  • The third reason It had an impact on the interests of the article 20 LCS that the insurance company was convicted in the first instance. It was considered for his part that there was just cause for not paying in due time compensation, because they doubted the loss coverage.

As to primer motivo alleged, Section 7th went to the judgment itself, the 30 March 2015, based on jurisprudence of the Supreme Court. The duty of declaration is limited to the content of the health questionnaire, which must not be of a special form which should depend on its effectiveness. "There is both a duty declaration, but response of the insured or policyholder what interests him the insurer. " The Supreme Court does fall on the insurer's duty to ask the contractor deems appropriate data that. Secured on duty falls reply or response. In fact, It stipulated in the last paragraph of paragraph 1 of the article 10 LCS: "Is waived from this obligation if the insurer or when subjected questionnaire, aun sometiéndoselo, In the case of circumstances that may affect the assessment of the risk and are not included in it. "

Expert evidence by the party appellant insisted that the condition of the insured was progressive and not sudden appearance, and that this pathology and appeared on the occasion of diagnostic testing in 2015 and the insured missed the truth when asked.

The Chamber stated that there was no conclusive evidence that the disease will manifest itself in terms that could make suspect the insured of its existence and consequences. In fact, until January MRI 2017, I had not gone to any medical consultation for pain in the left hip. You can not conclude that the disease was present when the health questionnaire was conducted, for, even when he underwent medical examination, some reference was made in this regard by the professional in the minutes that lifted. The insured remained at all times a collaborative attitude, because he had surgery on his right hip in the year 2015, discarding the willful or gross negligence attitude of the same.

Por lo que respecta al segundo motivo, happiness limiting clause does not meet the requirements of the article 3 LCS. The policy came into effect from 00:00 hours the 31 December. The incident occurred by surgical intervention, preventing your trade for a few months. Section stated that if another interpretation be held, "Stay out of range, not only all inability generated by a disease that occurs in this period, but any such situation brought about by a previous illness that manifests itself after the term of the policy, which may be unknown to the insured, or even subject to express recognition in his declaration of health status and therefore already taken into account by the insurer to assess the risk. "

Regarding the allegations in the third reason of the resource, the Court has concluded that the interests that condemned the insurance company have punitive nature, with the aim that they comply with the obligation of the insurer.

Even though that him article 20.8 LCS applies the legal exception of la existence of a cause, the Audiencia Provincial considered that in this case there was no, because the insured was subjected to a health questionnaire and a medical examination in which pain was detected in the left hip. The insured failed in his duty to tell the truth when testifying about his health. He did not hide at any time their surgery on his right hip. Therefore, incompatible with willful or gross negligence attitude is what ultimately would end insurance company to oppose and avoid paying compensation that has claimed.

For all the above, the 10 October 2019, 7th Section of the Provincial Court of Asturias gave judgment dismissing the appeal, confirming in full the judgment of first instance and imposing costs to the appellant.

Conclusion

Cuando no existe prueba concluyente de la presencia de sintomatología que pudiera hacer sospechar al asegurado, no se puede dejar fuera de cobertura de la póliza una incapacidad generada por una enfermedad anterior que se manifiesta con posterioridad a la entrada en vigor de la póliza.

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