Recourse in insurance allows the insurer to claim back what it has paid to the injured party from certain individuals after paying compensation
The requirements, standing, causes and limitation periods are regulated by law and case law, highlighting the limitation of recourse to the cases provided for by law, the distinction with subrogation and the application of a limitation period of one year from payment, except in subrogation, where the limitation period of the original action applies.
The case law of the Supreme Court has outlined the limits and cases in which this action may be exercised, particularly in matters of civil liability arising from the use of motor vehicles.
At Belzuz Abogados, S.L.P., as specialists in civil liability insurance, we have analysed the case law of the Supreme Court, which identifies the requirements that must be met for an action for recovery, especially in the context of insurance and civil liability, with the aim of determining in which cases such an action is appropriate and how it must be proven in order to be successful.
Most similar cases: For cases to be similar to the one in question, the following elements must be present:
- Existence of a prior payment relationship on the part of the plaintiff (insurer, joint debtor, etc.) to a third party or the injured party.
- Exercise of the action for recovery to claim reimbursement of the amount paid from another obligated party (insurer, co-debtor, party liable for the damage, etc.).
- Discussion of the formal and material requirements for the viability of the recourse action: proof of payment, standing to sue, validity of the policy, statute of limitations, and proof of damages or liability.
I have identified six relevant judgments with the aim of identifying when recourse is appropriate:
- Murcia Provincial Court ruling of 13 September 2023: Analyses the appropriateness of recourse between insurers, the concurrence of faults, joint and several liability and the need for there to be no res judicata or statute of limitations, confirming the viability of the action if the legal and temporal requirements are met.
- SAP Barcelona of 30 June 2017: Clarifies the start date of the period for the Insurance Compensation Consortium to bring recourse action and the need for the claim to be settled in full, reinforcing the importance of proof of payment.
- Las Palmas Provincial Court, 5 July 2022: Analyses the statute of limitations, its interruption, the burden of proof of payment and the standing of the insurer bringing the recourse action against the party responsible for the damage.
- SAP Alicante, 15 April 2013: Identifies the legitimacy of the insurer’s recourse action, proof of the validity of the policy and the amount of compensation, even when not all the formal documentation is provided, provided that other means of proof exist.
- Granada Provincial Court, 11 May 2023: The possibility of bringing recourse proceedings after partial payment, which extends the scope of the action beyond the total payment of the debt.
- SAP Barcelona, 1 June 2005: Establishes the right of recourse between insurers in cases of joint and several liability for traffic accidents, setting criteria for the distribution of liability.
What are the differences between recourse and subrogation by the insurer?
Another question we ask ourselves is what the differences are between recourse and subrogation. Recourse is an autonomous action that arises after payment to the injured party and allows the insurer to claim back what has been paid in the cases provided for by law. Subrogation, on the other hand, means that the insurer takes the place of the insured party in relation to the liable third party, exercising the same right as the insured party, and the limitation period is that of the original action. Recourse, on the other hand, has a specific limitation period of one year from the date of payment.
Finally, we will address the question of what is the limitation period and what jurisprudential criteria exist regarding its calculation and exercise?
The limitation period for the insurer’s recourse action is one year from the date on which payment was made to the injured party. In subrogation, the period is that of the insured party’s original action against the liable party, applying the theory of “actio nata”, i.e. the period begins when the action can be exercised. Case law has indicated that the interruption of the limitation period by valid acts, such as conciliation, SMAC, and certified notifications, is applicable to all jointly and severally liable parties.
CONCLUSION
The purpose of recourse or subrogation is to seek compensation from the party ultimately liable for the damage once it has been determined. In the case of insurers who make the payment, the one-year period is decisive for recourse against the injured party, but if that period has elapsed, they can always resort to subrogation, placing themselves in the position of their insured, who normally has a longer period.
For the action for recovery to be successful, the payment made, the claimant’s standing to sue, the validity of the policy (in the case of insurance) and the fact that the action is being brought within the legal time limit must be reliably proven, and the limitation period may be interrupted by extrajudicial claims.
In cases of joint and several liability, the proportional part could be claimed even after a partial payment. However, extreme caution must be exercised in proving all these points, as insufficient evidence, the statute of limitations, or the absence of standing could be effective arguments for dismissing the recourse action.
At Belzuz Abogados S.L.P., as a law firm specialising in insurance law and civil liability, we are available to advise you on the impact of this reform, both from the perspective of insurance practice and in defending the interests of victims and insured parties.
José Garzón
Departamento de Seguros
España
BELZUZ ABOGADOS SLP, Insuralex´s Exclusive Member in Spain and Portugal
