Banking Board Resolution JB-2015-3475

Banking Board of Ecuador

RESOLUTION No. JB-2015-3475

THE BANKING BOARD

CONSIDERING:

THAT the second paragraph of the Third Transitional Provision of the Organic Code of Monetary and Financial Affairs determines that the Banking Board will continue to act until it resolves all claims, appeals, and other administrative procedures it was handling as of the effective date of this Code, within a period of one hundred and eighty days, extendable at the discretion of the Monetary and Financial Policy and Regulation Board;

THAT through Resolution No. 054-2015-F, published in the Official Register Supplement No. 467, on March 26, 2015, the Monetary and Financial Policy and Regulation Board extended by one hundred and eighty (180) additional days the period for the Banking Board to continue acting and resolve all claims, appeals, and other administrative procedures within its competence;

THAT with vehicle insurance policy No. 223760, issued by Aseguradora del Sur C.A., valid from June 14, 2013, to June 14, 2014; the vehicle with license plate PBI4395, make TOYOTA, year 2011, model HIGHLANDER LIMITED, color SILVER, class JEEP, engine JTEDC3EH2B2002313; was insured for an insured amount of USD $65,000.00. From the referenced policy, it is recorded that the insured person is Mrs. María Paulina Vásquez Espinosa;

THAT through the "Vehicle Accident Declaration" form, from Aseguradora del Sur C.A., dated August 12, 2013, the insured communicated to the insurance company the accident involving the insured vehicle that occurred on August 10, 2013, at the intersection of Colón and Amazonas avenues, in the city of Quito;

THAT on December 10, 2013, Aseguradora del Sur C.A., through letter No. ASQ-NG0102000-2013, denied the claim filed by the insured based on article 21, letters a) and b) of the General Conditions of the vehicle insurance policy contracted;

THAT through a document submitted to this Superintendency of Banks on March 21, 2014, Mrs. María Paulina Vásquez Espinosa, with the professional sponsorship of Dr. Franklin Velásquez Del Pozo, filed an administrative complaint against Aseguradora del Sur C.A. for the refusal to pay the indemnity under vehicle insurance policy No. 233760; and requested that the insurance company be ordered to make the payment under the contracted policy effective;

THAT through letter No. DNAE-SAU-2014-02185, dated April 14, 2014, the Subdirector of User Attention and Education, E., at that time, requested explanations and supporting documents from Aseguradora del Sur C.A. regarding the denial of the claim filed by Mrs. María Paulina Vásquez Espinosa; THAT through a letter received by this Institution on May 5, 2014, the sponsoring lawyer, legally authorized by the Executive President of the insurance company, provided attention to the requirement of the control body;

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Banking Board of Ecuador Resolution No. JB-2015-3475 Page No. 2

THAT with Resolution No. SBS-DNAE-2014-572, dated July 1, 2014, the National Director of User Attention and Education, decided:

"(...)

RESOLVES:

ARTICLE 1.- REJECT the claim filed by Mrs. María Paulina Vásquez Espinosa regarding the accident related to vehicle policy No. 223760. In accordance with what is established in the fifth paragraph of article 42 of the General Insurance Law, the claimant's right to resort to summary verbal proceedings before competent judges or to submit to commercial arbitration or mediation, as appropriate, is reserved.

ARTICLE 2.- ORDER the filing of the administrative complaint that motivated this resolution.

(...)

THAT through a document entered in the Superintendency of Banks on July 24, 2014, Mrs. María Paulina Vásquez Espinosa, filed an appeal against Resolution No. SBS-DNAE-2014-572, dated July 1, 2014, before this control body;

THAT through Resolution No. SB-INSP-2014-204, dated September 30, 2014, the National Superintendent of the Private Insurance System, at that time, granted the appeal filed by economist María Paulina Vásquez Espinosa and ordered the sending of the respective file;

THAT the appellant based her appeal on the following:

"...that I do not prepare the police reports as this is an exclusive function of the National Police of Ecuador and cannot be used as an excuse to NOT comply with the insurance contract, as I was up to date with premium payments, the occurrence of the accident had been proven, I had quantified the value of the loss. Having these elements that concern me as the insured, I understood that the law would shine in my favor and not that the Authority attends to tricks with which Aseguradora del Sur intends to deny me the right to be indemnified for the accident as you know..." (sic);

THAT the first five paragraphs of article 42 of the General Insurance Law provide as follows:

"Every insurance company is obligated to pay the contracted insurance or the corresponding part of the duly proven loss, as appropriate, within forty-five days following the day on which the insured or beneficiary presents in writing the corresponding claim accompanied by the documents that,

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according to the policy, are necessary, unless the insurance company formulates justified objections to such claim, which must be immediately brought to the knowledge of the Superintendent of Banks and Insurance.

If the insured or beneficiary accepts the objections, the insurance entity will immediately pay the agreed indemnity.

If in this case or if the forty-five day period established in the first paragraph expires, the insurance company does not make the payment, the insured or beneficiary will bring this fact to the knowledge of the Superintendent of Banks, who, upon verifying this situation, will order payment within a period of fifteen days, along with interest calculated from the aforementioned forty-five days, at the maximum conventional rate fixed by law. If payment is not made within the granted period, it will order the forced liquidation of the insurance company.

If the insurance company formulates objections to the claim and no agreement is reached with the insured or beneficiary, the Superintendency of Banks will verify the existence of the grounds for such objections and, if none are found, will order payment; otherwise, it will reject it.

The insured or beneficiary may resort to summary verbal proceedings before competent judges or submit to commercial arbitration or mediation, as appropriate.

(...)."

THAT according to the cited norm, once the forty-five days following the day on which the insured or beneficiary presents in writing the corresponding claim accompanied by the documents that, according to the policy, are necessary, have passed, without the insurance company having made the payment of the claimed insurance, or failing that, having formulated objections to such claim, the insured may go to the Superintendency of Banks to ask it to order the insurance company to pay the accident, and if there are grounds for the denial of said payment, it will analyze them to determine their justification. Therefore, in light of this legal provision, it is established that the Superintendency of Banks is competent to hear and resolve the present administrative complaint;

THAT in concordance with the above, article 22 of Supreme Decree No. 1147, published in the Official Register No. 123, on December 7, 1963, states as follows:

"Art. 22.- It is incumbent upon the insured to prove the occurrence of the accident, which is presumed to have been produced by fortuitous event, unless proof to the contrary is provided. Likewise, it is incumbent upon the insured to prove the amount of the indemnity due from the insurer. It is incumbent upon the latter, in both cases, to demonstrate the facts or circumstances excluding its liability";

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THAT in the present case, the insured has proven the amount of the indemnity for the value of US$ 65,000.00. The insurer has demonstrated the facts or circumstances excluding its liability, as the documentation forming part of the file determines that the objection is duly justified;

THAT article 1 of Supreme Decree No. 1147 reads as follows:

"Art. 1.- Insurance is a contract by which one of the parties, the insurer, obligates itself, in exchange for the payment of a premium, to indemnify the other party, within the agreed limits, for a loss or damage produced by an uncertain event; or to pay a capital or an annuity, if the eventuality provided for in the contract occurs."

THAT Aseguradora del Sur C.A. assumed the risks covered under vehicle policy No. 223760, subscribed with the insured Mrs. María Paulina Vásquez Espinosa, whose insured object was a Toyota vehicle, type Jeep, model Highlander Limited, year 2011, plate PBI-4395, in exchange for the payment of a premium or insurance price;

THAT the file evidences the existence of two police reports No. 2494, signed by the same person, same date, same vehicle. In the report delivered by the insured to the insurance company, it is recorded that Mrs. MARIA PAULINA VASQUEZ ESPINOSA was present at the scene in normal condition, identifying herself as the owner of the accidented vehicle. The report delivered by the adjuster, certified in the Prosecutor's Office, records the name of Mrs. MARIA EUGENIA ESPINOS NARVAEZ, as the owner of said vehicle;

THAT regarding this, the Superintendency of Banks, among its attributes as a control body, does not have competence to determine which police report has validity and which does not;

THAT it is worth mentioning article 18 of the General Conditions of the All Risk Vehicle Insurance Policy which refers to the "Basic Documents Necessary for Accident Claims," whose paragraph 18.1.- "Documentation Necessary in Case of Accident for Total Loss due to Damage," establishes:

"a) Original of the police report or complaint filed with the Service for the Investigation of Traffic Accidents, SIAT, or with the corresponding police instance, or with a competent traffic court, in case there was no police intervention at the scene of the accident."

THAT it is also important to cite the provision contained in paragraph 16.1 of article 16 of Resolution JB-2013-2489, which contains the "Manual of Procedures for the Processing of Administrative Complaints Filed Under Article 42 of the General Insurance Law," which establishes the following:

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"Art. 16.- The complaint will be rejected, leaving the right of the claimants to resort to ordinary justice or to commercial arbitration, if so stipulated in the contract, in the following cases:

16.1 When the insurance company has formulated its objections in a justified manner within the period established by law;"

THAT in harmony with this analysis, it is concluded that the insurer duly justified its objection to deny the payment of the corresponding indemnity;

THAT the National Legal Superintendency, through memorandum INJ-DNJ-SAL-2015-0407 of May 18, 2015, recommended to the Banking Board to reject the claim contained in the appeal filed;

AND IN exercise of its legal attributes,

RESOLVES:

SINGLE ARTICLE.- REJECT the claim contained in the appeal filed by Mrs. María Paulina Vásquez Espinosa; and, consequently, CONFIRM Resolution No. SBS-DNAE-2014-572, dated July 1, 2014, through which the National Directorate of User Attention and Education rejected the claim filed by Mrs. María Paulina Vásquez Espinosa regarding the accident related to vehicle policy No. 223760. In accordance with what is established in the fifth paragraph of article 42 of the General Insurance Law, the claimant's right to resort to summary verbal proceedings before competent judges or to submit to commercial arbitration or mediation, as appropriate, is reserved.

NOTIFY.- Given in the Superintendency of Banks, in Quito, Metropolitan District, on the tenth day of June of two thousand fifteen.

(Signature) Econ. Rodrigo Landeta Parra GENERAL SUPERINTENDENT/S PRESIDENT OF THE BANKING BOARD, E

I CERTIFY.- Quito, Metropolitan District, on the tenth day of June of two thousand fifteen.

(Signature) Lcdo. Pablo Cobo Luna SECRETARY OF THE BANKING BOARD