This judgement partially accepts the appeal and modifies the ruling of the lower court by fixing the date of recovery at a different moment than that established by the lower court, which fixed it at the moment when the injured party was discharged by the traumatologist who treated the injured party for a vertebral fracture in the hospital to which she was referred by the defendant.
The Court points out that the hospital discharge report refers to the intervention of the traumatology service with regard to the treatment of this fracture and that this service did not treat the plaintiff for the hip injury also resulting from the accident that was subsequently diagnosed.
This modification, regarding the criterion of the moment in which healing takes place, has its consequence in this case, in the application of the interests of article 20 of the insurance contract law, imposed on the insurers who incur in delay in the fulfilment of the service, of compensation for damages and losses.
It is not a question of analysing in this article what the application of the interests of article 20 of the LCS 30/95 entails and its punitive peculiarities far above the interests that are normally applied in other procedures in which the insurers are not involved; which we have already dealt with extensively in other articles, what we will deal with here as a speciality of this judgement is the treatment given by the courts to the exception of applying the extraordinary interests for delay to the insurers, in cases in which the delay is not attributable to the insurer.
With regard to this second point relating to interest, the Provincial Court upheld the appeal and modified the decision of the lower court, which considered that the interest of art. 20 LCS should not be applied, as it justified the non-payment of the compensation in the lack of collaboration of the injured party.
The wording of Art. 20 also contemplates that ‘There will be no compensation for the insurer’s default when the failure to pay the compensation or to pay the minimum amount is based on a justified cause or is not attributable to the insurer’.
El Juez de instancia, fundado en este argumento, consideró que la falta de colaboración del lesionado es una causa que justifica la no imposición de dichos intereses.
“La sentencia apelada, que ya aplica el baremo correspondiente al año de interposición de la demanda (2021) y no el de la fecha del accidente, excluye la aplicación de los intereses del artículo 20 de la LCS porque, por una parte, la oferta motivada realizada por la aseguradora el 9 de mayo de 2019 en respuesta a la reclamación de 19 de marzo se ajusta a las exigencias formales y de contenido del artículo 7. 2 del TR LRCSCVM (LA LEY 1459/2004), lo que es causa legal que exime del pago de los intereses por demora sobre la cantidad ofertada y satisfecha o consignada, conforme al apartado letra a) del artículo 9; y porque, por otra parte, consta que la lesionada se negó a ser explorada por los peritos médicos de la compañía de seguros, con lo que también considera de aplicación el apartado 8 del mismo artículo 20 LCS a tenor del cual no habrá lugar a la indemnización por mora del asegurador cuando la falta de satisfacción de la indemnización o del pago del importe mínimo esté fundada en una causa justificada o que no le fuera imputable.
‘The judgment under appeal, which already applies the scale corresponding to the year in which the claim was filed (2021) and not that of the date of the accident, excludes the application of interest under Article 20 of the LCS because, on the one hand, the reasoned offer made by the insurer on 9 May 2019 in response to the claim of 19 March complies with the formal and content requirements of Article 7. 2 of the TR LRCSCVM (LA LEY 1459/2004), which is legal grounds for exemption from the payment of interest for late payment on the amount offered and paid or deposited, in accordance with section a) of article 9; and because, on the other hand, it is on record that the injured party refused to be examined by the medical experts of the insurance company, with which it also considers paragraph 8 of the same article 20 LCS to be applicable, according to which there will be no compensation for late payment by the insurer when the failure to pay the compensation or the payment of the minimum amount is based on a justified cause or is not attributable to the insurer.
The case file shows that the medical care was provided at the expense of the insurance company, and that her refusal to be examined by the company’s expert valuers occurred after the company had already received the claim and, with it, the medical care and expert documentation available to the injured party for the purposes of quantifying the damage.
It is therefore concluded that the insurer must pay the disputed interest from the date of the claim on the part of the compensation exceeding the amount offered and already paid, taking into consideration for the calculation the partial and additional payment made in the course of the proceedings.
14. The legal consideration of the lack of collaboration of the injured party as a justified cause for not imposing the interest of article 20 of the LCS is projected on the necessary for the medical services designated on behalf of the eventual liable party to recognise him and follow the evolutionary course of his injuries (art. 37. 2 TR LRCSCVM (LA LEY 1459/2004)). There is no evidence that Ms. Ana failed to comply with this legal obligation; on the contrary, as far as can be seen from the case file, the medical care provided to the injured after the accident was entrusted to the medical services of the Juan Cardona Hospital in Ferrol, on behalf of the insurance company. Its refusal refers to the examination by the company’s appraisal experts, once the company had already received the claim and, with it, the medical care and expert documentation available to the injured party for the purpose of quantifying the damage.
CONCLUSION: After analysing this judgement, as insurance experts, we can appreciate that the dominant criterion of the courts is to maintain the penalising nature of insurers who delay the payment of compensation and that the exception provided for, consisting of the fact that there will be no compensation for late payment by the insurer when the failure to pay the compensation or to pay the minimum amount is based on a justified cause or is not attributable to the insurer, is interpreted restrictively.
It should not be forgotten that the imposition of this interest for late payment must be assessed ex officio by the judicial body and that this interest will be considered to be produced per day, without the need for a judicial claim.
From the Insurance Law Department of Belzuz Abogados SLP, as experts in insurance law, we remain at your disposal for precise specialised advice on the subject.
José Garzón García
Socio -Departamento de Seguros
España y Portugal
BELZUZ ABOGADOS SLP, Insuralex´s Exclusive Member in Spain and Portugal
