-5%

Main regulatory and case law developments in the insurance sector 9788411632089

Main regulatory and case law developments in the insurance sector

ISBN: 9788411632089

~~El precio original era: 23,16€.El precio actual es: 23,16€.~~ 22,01€ IVA incluido

Hay existencias

Peso	200 g
Fecha de Edición	28/04/2023
Plazo de entrega	24 h
Número de Edición	1
Idioma	Inglés
Formato	Libro + e-Book
Páginas	108
Lugar de edición	NAVARRA
Encuadernación	Rústica
Colección	CUADERNOS ARANZADI
Editorial	ARANZADI THOMSON REUTERS

SKU: 9788411632089 Autores: Joaquín Ruiz Echauri, Rafael Fernández, Rquel Asensio Categorias: ARANZADI THOMSON REUTERS, CUADERNOS ARANZADI, DERECHO MERCANTIL: SEGUROS, MONOGRAFÍAS ARANZADI

Main regulatory and case law developments in the insurance sector

This publication is a reference guide covering the main case law and regulatory developments that have taken place in the insurance sector during the year in question.

Clarity of exposition: the content is concise and clear.
Technical quality.
Written by specialist authors (lawyers who focus exclusively on the insurance sector).

Is of interest to Lawyers, claims handlers, legal advisors, researchers, industry associations and legal professionals involved in the insurance sector.

A compilation of the insurance sector’s main regulatory developments and landmark judgments in 2022.

FORMATO

Con el libro digital ProView: contarás con las ventajas del formato electrónico.

Podrás interactuar con el contenido: copiar, pegar, subrayar e introducir anotaciones.
Tendrás actualizada la información cuando se trate de códigos.
Contarás con el acceso a la información desde cualquier lugar.

INSURANCE CASE LAW 2022

I
GENERAL ISSUES

1.Clauses restricting, limiting and detrimental to the rights of the insured (Article 3 of the LCS)

1.1.The denaturalisation of the insurance contract cannot be invoked when an exclusion of cover is agreed on the advice of a specialised broker

1.2.The Supreme Court has upheld the non-application of Article 3 of the Insurance Contract Act to an insurance broker

1.3.The Supreme Court clarifies the requirements of Article 3 of the Insurance Contract Act

1.4.Clauses limiting the rights of an insured person may not be included in the statutes and benefit regulations of social welfare mutual funds

2.Declaration of the insured risk (Article 10 of the LCS)

2.1.The Supreme Court applies the fairness rule of Article 10.3 of the Insurance Contract Act even if the inaccuracies in the declaration of the risk by the policyholder are not fraudulent or in bad faith

3.Aggravation of the insured risk (Article 11 of the LCS)

3.1.The failure to inform the insurer of the circumstances that change the conditions or the premium of an accident insurance policy entails the proportional reduction of the compensation that corresponds to the insured person due to an accident at work

4.Payment of the premium (Article 15 of the LCS)

4.1.The reimbursement of the premium to the policyholder due to withdrawal did not release the insurer from paying the Insurance Compensation Consortium the surcharges due to it

4.2.Consequences of non-payment of the first (or single) premium or successive premiums in motor vehicle insurance

5.Default interest (Article 20 of the LCS)

5.1.Interest under Article 20 of the Insurance Contract Act shall accrue even if partial payments of compensation are made to the injured party

5.2.An out-of-court waiver of default interest under Article 20 of the Insurance Contract Act by a consumer is null and void

5.3.Interest under Article 20 of the Insurance Contract Act is not applicable to the guarantor of the amounts advanced in the sale and purchase of dwellings

5.4.Interest under Article 20 of the Insurance Contract Act (LCS) is not applicable when the delay in the payment of the compensation is justified

6.Limitation of actions (Article 23 of the LCS)

6.1.An action for recovery brought by an insurer under Article 43 of the Insurance Contract Act does not interrupt the limitation period, which runs from the day on which the insured was able to bring his action

6.2.A criminal action interrupts the limitation period of a tort action even if the injured third party is not a party to the criminal proceedings

6.3.Failure to notify the insured of the termination of criminal proceedings means that the limitation period for a civil action is still interrupted

6.4.The criminal proceedings relating to the claim also interrupt the prescription period of the insured’s civil action against the insurer in the event of a dispute over the amount of compensation

6.5.The limitation period of Article 23 of the Insurance Contract Act is not applicable to the coverage of voluntary improvements due to disability

6.6.The Supreme Court held that actions interrupting the limitation period against an insurance company do not affect the insured party

6.7.An insurance company’s right of subrogation is subject to the limitation period of the action brought, without being subject to the limitation period of Article 1964 of the civil code

II
NON-LIFE INSURANCE

1.Clauses restricting, limiting and detrimental to the rights of the insured (Article 3 of the LCS)

1.1.The absence of express acceptance of a restrictive clause precludes its enforceability

1.2.Application of the “pro-insured” principle: cover for damage caused by the asphyxiation of livestock as a result of the breakdown of machinery due to lightning strike

2.Insured interest (Article 25 of the LCS)

2.1.The non-existence of an insurable interest, under the Maritime Navigation Act, will render a contract null and void

3.Subrogation action (Article 43 of the LCS)

3.1.A co-owner liable for a loss is not covered by a community insurer when damage is caused to the common areas unless otherwise stated in the policy

3.2.A co-owner of a block of flats may be held liable as a third party for an incident occurring in the block of flats

3.3.The insurer company may be subrogated to the rights of the insured when suffers damage caused by oscillations in the electricity network attributable to the supplying company

4.Surety insurance (Article 68 of the LCS)

4.1.The collective guarantee of the regulations for the protection of off-plan buyers does not apply to the buyer of a holiday apartment even if the purchase contract is subject to these regulations

4.2.It is not necessary to take out a ten-year insurance policy to guarantee renovation works for which new building permits were sought before the Building Management Law (Ley de Ordenación de la Edificación) came into force

5.General liability insurance (Articles 73 and 74 of the LCS)

5.1.D&O insurance covers the professional liability incurred by a company towards all injured parties when it is caused by the commission of an offence by the director of the company

5.2.The Supreme Court confirms the application of full indemnity in the compensation for loss of earnings arising from the personal injuries suffered in the Spanair accident

5.3.Liability insurance is not accident insurance: liability insurance cover is only triggered by the insured’s liability and cannot be used as a kind of accident insurance

5.4.Friends who look after your dog are not covered by third-party liability insurance

5.5.A civil liability insurer was found directly liable for the offence of fraud committed by a nursing home employee under the principle of the unenforceability of fraud

5.6.A motorway concession operator is liable for damage to drivers caused by foreseeable adverse weather conditions and the lack of road maintenance

5.7.There is an obligation to compensate the injured third party in full for the damaged object, even if it is an improvement over its pre-injury state

6.Motor vehicle liability insurance

6.1.The inability of the victim of a traffic accident to continue caring for a disabled relative full-time due to the consequences of the accident is compensable as regular work in the traffic scale

6.2.The Supreme Court reduced the compensation by 25% for victims who voluntarily boarded a trailer on a procession knowing the risk they were taking by not complying with traffic regulations

6.3.The Supreme Court upholds the doctrine that damage to a semi-trailer is not covered by compulsory truck insurance

6.4.A motor vehicle liability insurer was liable for damage caused by offences committed through the use of the insured vehicle

6.5.An expert medical report is not necessary to claim traffic compensation for temporary injuries

6.6.A traffic scale can only be applied as a guideline model in cases of intentional crimes where the vehicle is used as an instrument for the commission of the crime

6.7.Being hit by a bicycle while getting off a bus is considered a road traffic accident

7.Direct action (Article 76 of the LCS)

7.1.The courts of the place where an injured party is domiciled have jurisdiction to hear the direct action against an insurance company domiciled in another Member State, but not the consolidated action against the policyholder

III
PERSONAL INSURANCE

1.Clauses restricting, limiting and detrimental to the rights of the insured (Article 3 of the LCS)

1.1.A clause that makes a generic reference to disability for any reason limits the risk and, at the same time, a table is included with the inclusions and exclusions in this coverage

1.2.Validity of clauses defining the time limit of coverage

2.Declaration of the risk (Article 10 of the LCS)

2.1.The Supreme Court has established the need for a causal relationship between the concealment of medical conditions in a health questionnaire and a subsequent claim in order to establish that a breach of Article 10 of the Insurance Contract Act has occurred

2.2.The Civil Division of the Supreme Court also declares the invalidity of the pre-existing illness clause

3.Injured third party and direct action (Article 76 of the LCS)

3.1.It is not the duty of an insurer to compensate the employer of a temporarily incapacitated worker regarding social security contributions and wage supplements

4.Life insurance (Articles 83 to 99 of the LCS)

4.1.For a life insurance redemption by the beneficiary’s guardian to be declared void, it must be shown that it was made to the detriment of the beneficiary

4.2.A worker on sick leave due to the expiration of his temporary incapacity continued to be insured under a group life insurance policy, as his employment contract was not considered to have been terminated

4.3.A declaration of nullity of a mortgage loan clause that required the contracting of two insurance policies results in the nullity of these policies on the basis that they are “unnecessary over-guarantees”

5.Accident insurance (Articles 100 to 104 of the LCS)

5.1.Total permanent incapacity is not covered if the causal event occurred before the policy was taken out

5.2.An employer is liable for the mismatch between the insurable risks provided in the collective agreement and those agreed in the insurance contract

5.3.Professional negligence cannot be invoked as a ground for exclusion by the insurer if it is not considered reckless

6.Sickness and health insurance (Articles 105 and 106 of the LCS)

6.1.Hospital patients, as consumers, must be informed of the cost of the service and whether it is covered by the insurer

6.2.A Court orders an insurance company to include a newborn child on the mother’s health insurance policy after the child had been previously rejected

IV
COVID-19 SPECIAL

1.Coverage for loss of profits due to business closure

1.1.Judgments ordering insurance companies to compensate businesses for the Government’s closure of premises during the state of alarm

1.2.Judgments exempting insurance companies from compensating businesses for the Government’s closure of premises during the state of alarm

2.Other pandemic-related litigation

2.1.Contagion with COVID-19 in the course of professional activity is a risk covered by an employer’s accident insurance policy

2.2.Claims for damages for the cancellation of a flight as a result of COVID-19 against the airline and the insurer of a travel insurance policy are not cumulative

2.3.Death from COVID-19 is considered an accident at work under the general theory of the presumption of work-related illness arising at the time and place of work

1.Personal income tax

1.1.Liability compensation for personal injury and compensation arising from accident insurance contracts are considered exempt income for personal income tax purposes

1.2.The transfer of a unit-linked insurance policy is taxable as a capital gain in the personal income tax base

1.3.The temporary allocation of an annuity received late due to liquidity problems of the mutual benefit fund is due in the tax period in which it is actually received

2.Value-Added Tax

2.1.The Supreme Court reiterated its position on the need to define the taxpayer in municipal ordinances on the fire tax for an insurance company to be considered a “substitute for the taxpayer”

2.2.The provision of insurance portfolio management services is considered subject to, and not exempt from, VAT

2.3.The reduced VAT rate should be applied to repairs that have been contracted by the occupants of the dwellings and not by the insurers

2.4.Transfers of insurance portfolios between intermediaries are subject to VAT

2.5.The Directorate-General for Taxation consolidates its doctrine on the VAT exemption of activities relating to insurance distribution taking into account the IDD

2.6.The transfer of policy portfolios in run-off is not considered to be subject to VAT

VI
DATA PROTECTION

1.The Supreme Court finds against a publishing house for publishing personal data of the beneficiary of an accident policy in a news article

2.The Spanish Data Protection Agency concludes that an insurance company is liable for the failure of one of its insurance agents to comply with the right to deletion 73

3.An insurer is not in breach of data protection regulations for consulting a credit rating system when asked for an insurance quote

4.An insurer was penalised for repeatedly sending advertising without a legitimate basis, and for failing to cooperate with the insurance agent in the exercise of the data subject’s rights

1.The Brussels I Regulation permits forum actoris in insurance matters under certain conditions

2.It is appropriate to review the final judgment in the civil jurisdiction when it is based on false testimony about the circumstances of the accident

3.The Supreme Court affirms that civil jurisdiction cannot be used in the event that the contentious-administrative jurisdiction proves unsuccessful for the injured third party

4.There is no non-contractual liability in cases where, by virtue of the theory of risk and the prohibition of return, it is not possible to establish a causal link between the risk caused and the damage caused

VIII
INSURANCE DISTRIBUTION

1.The improper policyholder must provide pre-contractual information to policyholders in unit-linked group insurance, although failure to do so is not automatically sanctioned by the nullity of the contract

2.The CJEU narrows the concept of insurance distribution

3.The Supreme Court found an insurance company vicariously liable for the offences committed by a former agent without its knowledge

4.Mutual Social Security insurance companies may not charge the costs for the remuneration of employees who manage the contributions of the same group of companies or who are insurance intermediaries

5.The defining factor for determining whether an insurance intermediary has the status of an employee or self-employed person is the nature of the intermediary relationship

6.A breach of the prohibition on promoting a change of insurer by an insurance agent must be based on evidence, not mere estimates or indications

1.The principle of proximate causation prevails in the exclusion of coverage in a maritime insurance policy due to the absence of legally required documents under Article 756.7.º of the Commercial Code

2.The effects of an insurance company’s liquidation proceedings on an insured person’s outstanding legal claim are governed by the law of the Member State in which the claim is pending and not by the law of the insurer’s home Member State

3.An insurer is liable for the civil liability ex delicto of its exclusive agent even if the fraud is not carried out with an official insurance product, by application of the theory of appearance

4.An insurance company is civilly liable for the offences of misappropriation and fraud committed by an exclusive agent

5.Registration of a trademark was refused on the ground of phonetic similarity to the trademark of a well-known insurance company

6.The claim brought by a property developer against a ten-year insurance cartel was dismissed after it was established that the developer passed on the excess costs in full to its customers

7.There is no unfair competition or abuse of a dominant position when an insurer terminates a service contract with a doctor and subsequently offers him a new contract with less favourable conditions to provide medical care in its own facility

8.Doubts about the viability of an offer in an insurance tender must be resolved by the Solvency II solvency reports

REGULATION AND SUPERVISION

1.Commission Regulation (EU) 2022/1491 of 8 September 2022 amending Regulation (EC) No. 1126/2008 as regards International Financial Reporting Standard 17 (insurance contracts)

2.EIOPA Follow-up Report of 12 October 2022 on the peer review on the assessment of the suitability of the members of the administrative, management and supervisory bodies and of the qualified shareholders (EIOPA-Bos-22/437)

3.Resolution of 23 May 2022 of the Directorate General of Insurance and Pension Funds, publishing the revised Guidelines of the European Insurance and Occupational Pensions Authority on contractual limits

4.Resolution of 17 June 2022 of the Directorate General of Insurance and Pension Funds, which publishes the update of the amounts contained in Articles 11 and 78 of Law 20/2015, of 14 July, on the regulation, supervision and solvency of insurance and reinsurance

5.Resolution of 6 September 2022 of the Directorate General of Insurance and Pension Funds, publishing the revised Guidelines of the European Insurance and Occupational Pensions Authority on contractual limits

II
DISTRIBUTION OF INSURANCE AND REINSURANCE

1.EIOPA Guidelines of 20 July 2022 on integrating customer sustainability preferences into the suitability assessment in the framework of the IDD

2.EIOPA Notice of 4 October 2022 to insurers and credit institutions for the protection of consumers in the distribution of credit protection insurance contracts

3.DGSFP Notice of 24 October 2022 for insurers and bancassurance operators distributing credit protection insurance contracts

III
OTHER AREAS

1.Order ETD/374/2022 of 25 April establishing the system of reinsurance to be provided by the Insurance Compensation Consortium for civil liability for nuclear damage

2.Order ETD/949/2022, of 29 September, which updates the actuarial technical bases that support the calculations of the system for the appraisal of loss and damage caused to persons in traffic accidents contained in the annex to the revised text of the Law on civil liability and insurance in the use of motor vehicles, approved by Royal Legislative Decree 8/2004, of 29 October

3.Explanatory note of the DGSFP of 14 December 2022 on compensation and penalties in the event of failures in the liquidation of assets affecting pension funds

4.EIOPA response statement of 6 May 2022 to the discussion paper on blockchain and smart contracts in insurance (EIOPA-BoS-22-178)

5.EIOPA response statement of 15 June 2022 to the discussion paper on open insurance: accessing and sharing insurance data (EIOPA-BoS-22-297)

Director

Joaquín Ruiz Echauri is a partner in the insurance and reinsurance area of Pérez Llorca Abogados

Coordinador

Rafael Fenández

Autores

Jesús Almarcha Jaime

Iván Bejarano Díaz

Fátima Eizaguirre Carrancio

Luis María González García
Gloria González Pérez

Juan Pablo Nieto Brackelmanns

Paula Pacheco Romero

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may affect your browsing experience.

Necessary

Siempre activado

Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.

Cookie	Duración	Descripción
cookielawinfo-checbox-analytics	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Analytics".
cookielawinfo-checbox-functional	11 months	The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional".
cookielawinfo-checbox-others	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Other.
cookielawinfo-checkbox-necessary	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookies is used to store the user consent for the cookies in the category "Necessary".
cookielawinfo-checkbox-performance	11 months	This cookie is set by GDPR Cookie Consent plugin. The cookie is used to store the user consent for the cookies in the category "Performance".
viewed_cookie_policy	11 months	The cookie is set by the GDPR Cookie Consent plugin and is used to store whether or not user has consented to the use of cookies. It does not store any personal data.