Transmission of Insured Interest
The transmission of the insured object entails that of the insurances, unless otherwise agreed in a general condition for non-mandatory risk nominative policies. The transfer must be communicated to the insurer in writing within 15 days, which may exercise the right of termination against the acquirer. The same right holds the acquirer. If terminated by the insurer, you must return the unused premiums. If terminated by the insured, the premium is made by the insurer. This discipline of transmission also applies to cases of death, suspension of payments, bankruptcy, removes and waits, insolvency of the policyholder or the insured. The power of rescission does not have the policies issued to the order or to the bearer; This is due to their nature for the circulation of the policy.
The insured must prove the preexistence of the insured objects, constituting a presumption in their favor the content of the policy. If the parties do not agree on the valuation of the damages, this will be done through experts. The designation of the experts will be made by the parties. If a party does not appoint an expert, it is understood that it accepts that of the other party, provided there has been a requirement of the other party and the course of eight calendar days. If there is agreement between the parties, it will be reflected in a joint act, in which the causes of the accident, the valuation of the damages, the other circumstances that influence the determination of the compensation and the compensation proposal will be recorded. (In Agricultural Insurance, the Insured normally accepts contractually the damage assessing expert – Agronomist Engineer – that the Insurer will send. Arbitration mechanisms are foreseen for the case in which the Insured does not accept the expert opinion. The number of days in which the deadlines prescribe – to report an incident, to conduct the expert report – they vary with companies, countries and different laws, as for the act where the damages are established – the Expert Report – should be the result of an objective, agronomic measurement of the damages, and not of an “agreement” that would necessarily contain subjective elements in a subject that can represent important amounts of money.)
If there is no agreement between the experts, a third compliance expert must be appointed and if this does not exist, the designation will be made by the judge of the 1st Instance of the place where the assets are located, in the act of voluntary jurisdiction. The expert opinion, by unanimity or majority, shall be notified to the parties immediately and unquestionably, and must be binding on them, except judicial challenge within 30 days in the case of insurer or 180 days for the insured , both terms being computed from the date of notification of the opinion. If the insurer does not challenge it, it must pay within 5 days, and if it does not, the compensation will be increased by 20% and with the legal costs in case of the insured’s legal claim. If the insurer challenges the expert opinion, he must pay the minimum amount offered to the insured.
Each party will pay the fees of its experts, which may be subject to specific insurances coverage. Those of the third expert and other expenses will be in half, although the responsibility of all expenses can be attributed to the party that caused them provided that the valuation of the damage is manifestly disproportionate. (This last paragraph, and the previous one, as well as several of those that follow, refer to the particular case of Spain. We repeat that the minor characteristics – days of deadlines, judicial mechanisms, costs, etc. – are different in each country.)
Situation of the Mortgage, Pledge and Privileged Creditors
The Insurances Contract Law provides for the protection of mortgage, pledged and privileged creditors by establishing the real subrogation of the compensation in lieu of the damaged asset, as well as the duty of insurer information, so that the default of the premium must be notified , the termination of the contract being unenforceable until one month has elapsed since the fact that caused the termination was communicated to them. Suspending the payment of compensation as long as credit guarantees are not provided. In case of conflict, the insurer is obliged to deposit the compensation in accordance with art. 1,176 of the Civil Code.
Subrogation of the Insurer
The subrogation of the insurer, mentioned in article 43 of Law 50/80, of October 8 of the Insurance Contract and is typical of damage insurance, not being operative in the insurance of persons expressly excluded by article 82 of the aforementioned law. It consists in the exercise by the insurer of the rights that the insured or the policyholder had and also to take the corresponding actions against the cause of the damage. The legitimacy of this right is based on preventing the insured from enriching himself through the simultaneous exercise of damage and insurance actions. This perrogative of the insurer is not imperative, however, the insurer may not subrogate itself against the insured himself, against the persons for whom he must respond civilly, or against the persons or relatives who live with him, unless, that the responsibility comes from the malicious conduct of these people, in which case, these exclusions will have no effect; or, in a liability insurance in accordance with article 43.3 of the same legal body.
Contractual Damage Insurances Types
s Under the generic name of Insurance against Damages, the Spanish Law regulates 8 different types of insurances:
- the fire
- the robbery
- ground transportation
- the lost profit
- the bond
- the credit
- the one of civil responsibility and of professional civil responsibility
- The first three: fire, theft and land transport, are strictly damage insurances, the insured interest falls on specific and determined things; the other five are equity insurance, in which the interest that is insured affects the general assets of the insured and not specific and determined assets.
Outside the insurances against damages regulated in the Law there are others that would also enter into that generic denomination, like this: agricultural insurances, automobile insurances in general and civil liability of the hunter.