In a recent 2025 judgment, the Colombian Supreme Court of Justice (hereinafter, the “SCJ”) ruled on a constitutional proceeding (acción de tutela) filed against a second-instance decision issued by the Civil Chamber of the Bogotá Superior Tribunal.
The dispute arose from an insurer’s refusal to pay the indemnity under a group debtor life insurance policy, arguing that the insured had made misrepresentations in the health statement at the time of enrollment as an insured. The plaintiff said that the judicial decision disregarded precedent on the insurer’s duty of due diligence, as it had failed to verify the insured’s health condition at the time of accepting the risk.
The case was first heard by the Delegation for Jurisdictional Matters of the Colombian Superintendence of Finance, which declared the relative nullity of the contract on grounds of misrepresentation. The decision was upheld on appeal by the Civil Chamber of the Superior Tribunal of Bogotá. When reviewing the case in the constitutional proceedings, the SCJ denied the requested protection, holding that the judicial decision was duly reasoned and not arbitrary. Its main arguments were as follows:
1. Insured’s duty when declaring the state of the ris
The SCJ reiterated that Article 1058 of the Colombian Commercial Code imposes on the policyholder the duty to truthfully disclose the facts or circumstances that determine the status of the insurable risk. Misrepresentation or concealment of relevant facts may give rise to the nullity of the insurance contract if, had the insurer been aware of them, it would have refrained from entering the contract or would have imposed more onerous conditions.
2. Legal theories on misrepresentation and concealment
The Supreme Court of Justice acknowledged that there are different lines of case law regarding the scope of insurers’ duty of due diligence. It summarized them as follows:
a. First approach: the insurer fulfills its duty of diligence by providing a clear and precise questionnaire, without being required to verify the answers through medical examinations or by reviewing the medical history.
b. Second approach: in certain cases, if there are elements that give rise to reasonable doubts about the truthfulness of the insured’s statement, the insurer must conduct additional verifications.
c. Third approach: in all cases, the insurer must carry out additional steps (such as medical examinations or a review of the medical history); failure to do so prevents it from alleging nullity on the grounds of the policyholder’s misrepresentation, as the rule of presumed knowledge set forth in the last paragraph of Article 1058 of the Colombian Commercial Code would apply.
3. Decision of the SCJ
The SCJ adopted the first approach, concluding that the insurer had fulfilled its duty of diligence by presenting a clear and precise questionnaire. Since the policyholder omitted or inaccurately declared material facts, it was appropriate to declare the relative nullity of the insurance contract on grounds of misrepresentation.
Further, it held that the challenged judicial decision fell within reasonable interpretative boundaries. It noted that, given the existence of multiple lines of case law, it was not for the constitutional proceeding judge to adopt a specific stance, considering such divergence and the principle of judicial autonomy.
4. Dissenting opinions
Three justices dissented. In their view, the majority decision lacked sufficient reasoning as to the identification and application of precedent regarding the insurer’s duty of diligence.
They considered that, given the existence of various lines of case law, it was necessary to provide a clearer justification for adopting one of them, especially when the claimant in the constitutional proceeding had cited precedents requiring a higher degree of verification and diligence on the part of the insurer.
Lucas Fajardo Gutiérrez | Partner of the Insurance and Reinsurance Team
Daniel Delgado Jaramillo | Associate of the Insurance and Reinsurance Team
Luis Alejandro Peña | Associate of the Insurance and Reinsurance Team
Brigard Urrutia
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