In this article we will analyse the judgement issued by the Examining Court nº 1 of Negreira in the verbal procedure 13/15 2022, by which the insurance company involved is condemned to pay the total amount claimed by the plaintiff, as the insurer does not admit the application of the alleged and successive deductibles applicable to each of the items repaired in the claim.
With this article we will analyse the judgement indicated due to the novelty of the interpretation made by the Court, by limiting the application of the excess only once to the total of the repair carried out.
The factual supposition consists of a claim by the insured party against his insurer who, when the time comes to repair the damage, tries to apply the excess stipulated in the policy on different occasions, depending on the repairs carried out in the different parts of the vehicle.
The Court considers that in view of the legal nature of the clause “application of excesses”, the excess being a limitation of the sum insured, the contractual wording and its effects, which states that “….. the insured will assume at his own expense the corresponding deductibles applying the criterion of zones of the vehicle and applying the deductible to each of the defined zones, constitutes a serious limitation and therefore must be subject to compliance with the provisions of Art. 3 of the Law of Insurance Contracts, in the sense that it must be identified in a special way in the policy and be expressly accepted and signed by the insured.
What the judge is really applying in this judgement is the doctrine of the Supreme Court on the clauses delimiting risk and limiting rights.
The risk delimiting clauses are qualified as those freely agreed by the parties in which the causal scope (risks included and excluded), quantitative (recognised capital), spatial (territory) and temporal (term of coverage) of the contract are agreed (STS of 16 January 2008).
It is a question of delimiting the risk that is the object of the insurance contract and therefore cannot be considered as a limitation but rather an objective delimitation of the insurance contract (STS of 4 December 2000, 23 October 2002, 5 March 2003).
All those contractual stipulations freely agreed by the parties to an insurance relationship whose aim is to clearly establish what is to be understood as an accident and what is not, in order to delimit the object of the specific insurance contract, should in principle be considered as risk delimiting clauses, and therefore not subject to the regime foreseen in art. 3 LCS.
As the judgement of 9 February 1994 EDJ 1994/1083 indicates, the content agreed in the contract on the insurer’s coverage does not limit the rights of the insured person, but delimits the risk assumed in the contract, its content, the scope to which it extends, in such a way that it does not constitute an exception that the insurer can oppose to the insured person, Rather, as it constitutes the contractual object, it excludes the action that has not arisen from the insured, and therefore the direct action, as the injured party cannot allege a right outside the contract itself (Judgments of 10 June and 25 November 1991, 12 May and 31 December 1992 EDJ 1992/12952 , 25 January 1995 and 1 April 1996).
The objective limits of the insurance cover therefore determine the substantial content of the insurer’s obligation (Judgment of 10 February 1998 EDJ 1998/739)”.
“For the purposes of the provisions of Article 3 of Law 50/80 on insurance contracts EDL 1980/4219, the policyholder declares that he is aware of all the general, special and particular conditions which form part of this policy and expressly accepts all those which limit its general conditions (Form 2101)”.
It is argued in the plea in cassation that the clause whose validity is disputed must be interpreted in the sense that it does not constitute any limitation of the rights of the insured person, but rather that it marks the scope of the risk, that is to say the event or occurrence covered by the insurance and which causes the agreed compensation, which would only take place in this case with respect to the claims occurring in Spanish territory.
The judgement of 5 June 1997 EDJ 1997/6158 makes a precise distinction between clauses limiting the rights of the insured (thus, clauses limiting the risk) which are constrained by Article 3 of the Insurance Contract Law EDL 1980/4219 and those clauses which indicate the scope or coverage of the Insurance, in the sense of establishing the risk covered by the contract (event whose risk is the object of the coverage to be indemnified), in accordance with the first article and whose basis or rather its origin is the principle of free will (article 1255 of the Civil Code EDL 1889/1).
In the case at hand, it is a clause that actually limits the rights of the insured as regards the limit of the sum insured, by claiming to apply the fraction of the sum insured to the insured.
It is thus evident that we are not dealing with a delimiting clause but rather with a clause limiting the rights of the insured and if not expressly accepted, they are not binding.
If, on the other hand, we were dealing with a delimitation clause, as stated in the judgement of 26 January 2004 EDJ 2004/1305 , as it is not a cause of limitation but rather of exclusion of the risk, it is, in other words, a delimitation of the contractual object, A distinction that has been accepted by the doctrine of this Court (Judgments of 16 May 2000/10878 and 16 October 2000 EDJ 2000/37059 and 22 February 2001) and which operates by the insurance company not assuming the insurance risk, as the contract does not include it as its object, and therefore it is not, as has been said, precisely a limitation of the rights of the insured, as they do not come into being in their favour.
Consolidated case law distinguishes delimiting clauses from those which restrict and thereby limit the rights of the insured (Judgments of 9-11-1990 EDJ 1990/10219, 9-2-1994 EDJ 1994/1083 and 18-10-1999), declare that the aforementioned exclusionary agreements, in accordance with the doctrine established in the judgement of 16 October 1992 EDJ 1992/10113, ratified in the subsequent judgements of 16 May EDJ 2000/10878 and 16 October 2000 EDJ 2000/37059, the requirement that they must be accepted in writing imposed by Article 3 of the Law of Insurance Contracts EDL 1980/4219, does not refer to any general insurance condition and with it those that eliminate the liability of the insured, but specifically to those clauses that are effectively limiting the rights of the insured, since the risk exclusion clauses are those that specify what kind of clause has become the object of the contract, which eliminates the need for express acceptance and subscription, which is not imperative with respect to them.
Conclusion: The clauses that are identified as risk delimiting clauses do not require compliance with the requirements of Art. 3 of the Law on Insurance Contracts, since, as their name indicates, they delimit the risk but do not limit the rights of the insured parties that do not come into being.
On the contrary, the clauses limiting rights such as the clauses related to the excess limiting the sum insured, in the case studied, limit the rights of the insured and must respect the requirements imposed in Art. 3 LCS and must be clearly identified in the policy and expressly accepted and signed by the insured.
Socio -Departamento de Seguros
España y Portugal
BELZUZ ABOGADOS SLP
