Subidas de la prima del seguro: Sentencias recientes

sentencias incremento prima seguro

The insurer must inform the increased insurance premium two months in advance and the customer, You must explicitly accept

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In this entry, We collect some of the sentences most recent provincial courts, relapse on rising insurance premiums in cases of non-communication and lack of acceptance by the customer. The rising price of insurance is a novation requires express acceptance. A lack thereof, the customer is entitled to a refund of that increase.

Section 8 Valencia Provincial Court Judgment No. 410/2018 of 19 September

Being in this regard qualified element raw as an essential element in the contractual confrontation and that the refusal by the actor receiving notice any to any increase in the policy around specific case according to the expert what not has managed to prove is so sharp that have been recepcionadas the corresponding notifications except for the year 2016. However if it is true that what is the generic notification specifying the expert through the analysis of the computer systems of a company to which management handles these notifications, It is thus clear that at least those were recepcionadas by actor that just using the system safe and well always paying premiums. In any case describing alterations premium as essential element and thereby modifying those qualifying as a renewal requires the approval is not only who verifies but of course who should pay the premium; issue that has been well proven in its negative and it gives good faith filing of the application, that does not count at all with the acquiescence of the actor.

(…)

The rating of the judgment as novation instance by changing raw, it is correct, It is legal basis of the above, as well as Articles 8.(maximum 10 years old) 6, 14 and 22 ( “the parties may oppose the extension of the contract by written notice to the other party, conducted a two-month period prior to the conclusion of the current insurance period”) Law of Insurance Contract , so that the latter article allows the automatic renewal provision ( art 22 LCS) unless by either party opposition will manifest itself within two months before the end of the current period, renewal it is operating in the event that conditions were maintained initially agreed, since otherwise, – as it is when a change occurs in the amount of the premium, indeed essential -, actually it is not extending the contract, but it is being modified, and such modification should be explicitly accepted by the parties in this line noted jurisprudence (inter, SSAP. A Coruna 14 July 10 November 2.005 ) that in the event of contractual extensions agreed upon the aforementioned Article 22 of the Law of Insurance Contracts it is mandatory, unless the contract provides otherwise ( STS. of 18 July 1.987), law constituting a minimum ( STS. of 28 November 1.985); namely, the insured, unless other terms are agreed on the -inexistentes policy in this case-, whether in the particular clauses and in general, must meet that standard and notify the insurer two months in advance of the conclusion of the period secured its intention not to renew the contract signed.

(…)

is not sufficient for the insured is obligated to pay the new premium, the mere fact that the two months before the provisions of Article 22 Law of Insurance Contracts, they have notified the insurer stipulated otherwise to contract extension, since it is essential for this effect to occur, that conditions remain initially agreed, and especially as to the amount of the premium, since otherwise, when the amount of the premium increases, if the contract is extending el, but it is modifying some of its essential elements, as is the price to be paid by the insured, modification which must be accepted expressly by the parties and this irrespective of the result obtained in the expert, which it is not absolute and in any case not allow you to extend its effect to the acceptance of the modification of the premium.”

Section 8 MADRID SAP Judgment No. 75/2017 of 27 February.

“The applicant argues that ultimately the revaluation of the premium does not constitute a novation of the contract as part of the content of the contract itself. However contrary is not stated in the policy states that stating an objective criterion or revaluation that this depends on a simple mathematical operation under the same clause revaluation , only case in which no communication would be necessary premium increase as indeed it would not be a change in this but strict implementation of the agreement by the parties. So it is understood by the Directorate General of Insurance according to which only be unnecessary notification when modifying the premium is covered by the policy in its specific amounts or at least with automatic means for calculating. This is not of course the case. Indeed paragraph “Overview” of the policy by the defendant itself under the heading, “automatic revaluation” II. “Updating capital, insured limits and net premium” states that capital, insured limits and net premium “They will be established in each maturity by multiplying those initially set out in the policy by the factor obtained by dividing the index due by the base index”. Below is explicit that the base index is established in the contract and the rate of maturity is that indicated on each receipt and is obtained from the updating of the base rate for each maturity in accordance with fluctuations in the General Index of Consumer Prices. Therefore, the clause itself refers ultimately to calculations to be carried out by the insurer itself and therefore the variation must be consensual, expressly or impliedly, as it was in previous annuities- must therefore be notified to the insured.

The insurer failed to comply, ultimately, the notification requirement of premium increase sufficiently in advance two months so the insured was able to turn out the contract by not meet the deadline laid down in Article 22 LCS for the obvious reason that before this period was unaware of the increase unilaterally intended to apply the insurance. Comes in sum should be dismissed.”

Section 1 Pontevedra Provincial Court Judgment No. 455/2015, of 10 December

“In other words, the collection clause in the particular conditions on ” automatic revaluation: including ” It is defined in a way and, then, applied other, because what could be a more or less objective method (constituted by the publication of quarterly indices although who is ignored and how obtienen-) a factor that depends exclusively on the Insurer itself is added, as are the rates, According to statistics experience and actuarial criteria, adopt the same professional, and other such subjective data as evaluation of “modifications guarantees”, “the particular risk characteristics” -with an open- list, “accident history” -without further concreción-…, all of which prevent the Policyholder know in advance the amount of the premium and the Insurer requires proactive behavior to enable the adhesive available so fundamental to the contract or extension of the same data as is the price.

(…)

In other words, whether unilaterally imposed changes in price when the contract has already been extended tacitly, for the notice period has elapsed, We are leaving the validity and enforceability of the contract to the will of one party, in violation of the provisions of art. 1256 Civil Code.

The only channel to save the validity of the clause is to interpret harmoniously with the stipulation that provides for annual extension and the period of notice: only if the amount of the premium does not vary or according to objective indices, readily known and previously agreed (or legally imposed), the extension may be imposed for lack of notice before the previous two months to maturity; in another case, if the premium application varies by calculations and data originating at the Underwriter own, variation must be consentida, expressly or impliedly, without being able to start running the notice period until it is communicated or the Policyholder is not aware of the modification, so that can make the appropriate decision rightly cause.”

Section 17 Barcelona Provincial Court Judgment No. 214/2014, of 21 May

“Opposition to the extension of the contract, whether the insurance company is formulated, as if it is by the policyholder, determines the termination of the contract in the event that is communicated with within two months before the end of the current period, subject to the possibility of such conventional reduction legal notice period benefit of the policyholder or the insured. It is a unilateral power to opposition to the extension of the insurance contract in timely exercise to be part of the contract you wish to terminate the contractual relationship and has recepticio character.

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THIRD.- I love, with the cases cited, that the lack of notification of the amount of the new premium by the company to the insured prevents the application of Article 22 Law of Insurance Contracts. So that it can be operated the contract extension, It is essential that the conditions are maintained initially agreed and, especially, the amount of the premium, since otherwise, when the amount of the premium increases, if the contract is extending el, but is changing one of its essential elements such as the price to be paid by the insured, modification which must be accepted expressly by the parties.

(…)

So things, it is evident that notification of premium becomes essential if the insured can freely decide whether proposed by the company for the next annuity new amount is in your interest or convenience. The lack of such notification, also practiced well in advance, depriving the insured of the possibility to terminate the contract as provided for in Article 22 Law of Insurance Contracts. Ultimately, the absence of notification, the insured is, as in the present case, with a receipt by an increase of the premium 234,62 €, unable to terminate the contract because the notice period of two months provided by law has passed.”

 

In summary, is permissible automatic price increase contained in the insurance policy whenever objectively determinable and the customer can take note of it. If such an increase depends on estimates or indices only you know the insurance,  It shall be communicated two months in advance and specifically accepted by the policyholder, because it is a novation of the contract.

 

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