Banking Board Resolution JB-2015-3494

RESOLUTION No. JB-2015-3494

THE BANKING BOARD

CONSIDERING:

THAT this appeal is resolved in accordance with the First Transitional Provision of the Organic Monetary and Financial Code, published in the Official Register Second Supplement No. 332, of September 12, 2014, whose text states that resolutions contained in the Codification of Resolutions of the Superintendence of Banks and Insurance and the Banking Board, and the norms issued by the control bodies, will maintain their validity in all that does not oppose what is provided in the Organic Monetary and Financial Code, until the Monetary and Financial Policy and Regulation Board resolves what corresponds, according to the case; and with the second paragraph of the Third Transitional Provision, which states that the Banking Board will continue to act until it resolves all complaints, appeals, and other administrative procedures it was hearing as of the date of entry into force of the same, within a period of one hundred and eighty days, extendable at the discretion of the Monetary and Financial Policy and Regulation Board;

THAT by Resolution No. 054-2015-F of March 5, 2015, the Monetary and Financial Policy and Regulation Board resolved to extend by an additional one hundred and eighty days the period for the Banking Board to continue acting and resolve all complaints, appeals, and other administrative procedures within its competence;

THAT Mr. Daniel Antonio Díaz Granados Joniaux contracted with Coopseguros del Ecuador S.A. Insurance and Reinsurance Company, the all-risk vehicle insurance policy No. 7292-1, to cover his property vehicle, a Volkswagen Golf, license plate GLK914, with validity from January 14, 2014, to January 14, 2015;

THAT the file contains a copy of the accident notice form which at the top says: "Second notice at the request of Coopseguros, first was delivered on January 21, 2014". In said form, the insured states that on the 18th of that same month and year "In the garage of the house, at approximately 2:30, they rang the doorbell to inform that smoke was coming out, upon coming out my father saw red in the engine area and knocked on the door. I went to the event area, we used extinguishers and water to control the blaze until the arrival of the firefighters. They opened the hood and put it out";

THAT through a communication entered in the Regional Intendancy of Guayaquil on May 13, 2014, Mr. Daniel Antonio Díaz Granados Joniaux, filed an administrative complaint against Coopseguros del Ecuador S.A. Insurance and Reinsurance Company, in which he requested the control body to order said insurance company to pay the claimed indemnification, the amount of which is US $ 6,000.00, due to the fact that the formalization of the complaint was on March 24, 2014, and the insurer had neither paid nor objected to the complaint;

THAT by Resolution No. SBS-IRG-DAyEU-SSP-2014-113 of August 15, 2014, the then Regional Intendant of Guayaquil, stated in the main part that "...the period of forty-five days referred to in article 42 of the General Insurance Law, must be counted from March 24, 2014, which expired on May 8, 2014, therefore it corresponds to the Superintendence of Banks and Insurance to order the payment of the respective indemnification...", resolving the complaint in question, in the following terms:

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Resolution No. JB-2015-3494

"ARTICLE FIRST.- ORDER, in accordance with what is provided in the third paragraph of article 42 of the Codification of the General Insurance Law, that COOPSEGUROS DEL ECUADOR S.A. INSURANCE AND REINSURANCE COMPANY, pay in favor of Mr. Daniel Antonio Díaz Granados Joniaux, the sum of..., (US$ 6,000.00), together with interest calculated at the maximum conventional rate fixed according to law, from May 9, 2014, the day following the date on which the forty-five days that the insurer had to pay for the accident expired, deducting from said indemnification the values agreed upon in the policy.

ARTICLE SECOND.- PROVIDE that COOPSEGUROS DEL ECUADOR S.A. INSURANCE AND REINSURANCE COMPANY, comply with what is established in the previous article, within a period of fifteen days counted from the date of notification of this resolution";

THAT by writing received in the Superintendence on September 5, 2014, the engineer Francisco Prieto Sánchez, General Manager of Coopseguros del Ecuador S.A. Insurance and Reinsurance Company, with the professional sponsorship of the lawyer María Belén Checa Altamirano, filed an appeal against the administrative act contained in Resolution No. SBS-IRG-DAyEU-SSP-2014-113 of August 15, 2014;

THAT the appellant based his appeal stating, in the main part, that:

"(...)

The complaint has not been completely documented on March 24, 2014, as the claimant asserts and as mentioned in the appealed resolution, as we have insisted on several occasions on the delivery of the missing documentation for the processing of the complaint, with the last insistence made to the insurance advisor on May 29 of this year. The following documentation is pending delivery:

• Authorization for withdrawal of the vehicle from the workshop
• 3 Contracts of Transfer of Ownership
• Payment of the vehicle registration for the year 2014
• Vehicle keys and/or duplicates.

(...)";

THAT the first five paragraphs of article 42 of the General Insurance Law, in force at the date of the occurrence of the accident, provide:

"ARTICLE 42.- Every insurance company has the obligation to pay the contracted insurance or the corresponding part of the loss duly proven, as the case may be, within the forty-five days following that in which the insured or the beneficiary presents in writing the corresponding claim accompanied by the documents that, 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.

If the insured or the beneficiary agrees to the objections, the insurance entity will immediately pay the agreed indemnification.

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Resolution No. JB-2015-3494

If in this case or in which the forty-five day period established in the first paragraph expires, the insurance company does not make the payment, the insured or the beneficiary will bring this fact to the knowledge of the Superintendent of Banks, who, upon verifying this situation, will order the payment within a period not greater than fifteen days, together with interest calculated from the forty-five days previously indicated, at the maximum conventional rate fixed according to law. If not paid 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 Superintendence of Banks will verify the existence of the grounds for such objections and, if there are none, will order the payment, otherwise it will reject it.

The insured or beneficiary may resort to summary verbal trial before competent judges or submit to commercial arbitration or mediation, as the case may be.";

THAT the Legislation on the Insurance Contract, issued by Supreme Decree No. 1147, published in Official Register No. 123 of December 7, 1963, which is part of the Commercial Code, in its article 22, provides:

"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 indemnification due from the insurer. It is incumbent upon the latter, in both cases, to demonstrate the facts or circumstances excluding its liability";

THAT according to the aforementioned article 42 of the General Insurance Law, once the forty-five days following that in which the insured or beneficiary presents in writing the corresponding claim accompanied by the documents that, according to the policy, are necessary to formalize the claim have passed, without the insurance company having made the payment of the claimed insurance, the insured may resort to the Superintendence of Banks, the control body that by legal mandate has the obligation to, if the case arises, order the payment together with interest calculated from the forty-five days previously indicated, at the maximum conventional rate fixed according to law;

THAT Condition Twentieth: "DOCUMENTS NECESSARY TO PERFECT THE CLAIM" of the General Conditions of the all-risk vehicle insurance policy No. 7292-1, establishes the documents, data, and reports that the insured must provide or send to the insurer in order to formalize the claim, which are transcribed below:

"CONDITION TWENTIETH: DOCUMENTS NECESSARY TO PERFECT THE CLAIM:

• Accident notice, on form supplied by the Company, detailing the manner and circumstances in which the accident occurred.

• Copy of the license (own damage and civil liability)

• Copy of the registration (own damage and civil liability)

• Repair estimate (own damage and civil liability)

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Resolution No. JB-2015-3494

• Original of the invoices in the name of Coopseguros del Ecuador S.A. (own damage and civil liability).

• Police report (own damage and civil liability)

• Report to the Judicial Police (total theft, partial theft)

• Report to the Radio Patrol central (total theft)

• Legalized purchase-sale contract (for total loss)

• Original registration (updated or cover costs of the same in total loss)

• Certificate of no encumbrance from the police (for total loss)

• Certificate of non-existence of encumbrance from the commercial registrar (total loss, total theft)

• Vehicle keys and duplicates (for total loss).

• Copy of the citizen ID card of the Insured and/or Owner and his spouse or cohabitant if he has one (for total loss)

• Copy of the voting slip (total loss, total theft)

• Certified appointment of Manager or Legal Representative (for total loss) if applicable.

• Medical expense invoices, which comply with current tax regulations.

• Birth certificates of the victim's beneficiaries.

• Death certificate of the victim.

• Declaration of effective possession of the victim's assets";

THAT the appellant argues that the insured has not formalized the claim since he has not proceeded to deliver the authorization for withdrawal of the vehicle from the workshop; the contracts of transfer of ownership; the payment of the vehicle registration for the year 2014; and, the vehicle keys and/or duplicates. The last three mentioned requirements are indeed listed as requirements to formalize the claim, according to what is stipulated in the aforementioned Condition Twentieth of the General Conditions of the all-risk vehicle insurance policy No. 7292-1;

THAT in the present case, the Regional Intendancy of Guayaquil, in the appealed administrative act, has stated that on March 24, 2014, Mr. Daniel Antonio Díaz Granados Joniaux had formalized the claim; however, within the file under study, it does not appear that the insured presented on that date, nor on any other, what is required in the General Conditions of the policy for the formalization of the claim;

THAT therefore, the 45-day period provided for in article 42 of the General Insurance Law for the insurer to pay or deny the claim has not yet started to run,

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Resolution No. JB-2015-3494

legal period in force at the time of the occurrence of the accident, in which case, it corresponds to Mr. Daniel Antonio Díaz Granados Joniaux to complete the documentation required in Condition Twentieth of the General Conditions of the all-risk vehicle insurance policy No. 7292-1;

THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2015-0432 of June 2, 2015, recommended to the Banking Board to accept the claim contained in the appeal filed by the General Manager of Coopseguros del Ecuador S.A. Insurance and Reinsurance Company; and,

IN exercise of its legal powers,

RESOLVES:

SINGLE ARTICLE.- ACCEPT the claim contained in the appeal filed by the General Manager of Coopseguros del Ecuador S.A. Insurance and Reinsurance Company; DECLARE WITHOUT EFFECT Resolution No. SBS-IRG-DAyEU-SSP-2014-113 of August 15, 2014; and, PROVIDE that Mr. Daniel Antonio Díaz Granados Joniaux, formalize the claim by presenting all the documentation required in Condition Twentieth of the General Conditions of the all-risk vehicle insurance policy No. 7292-1, so that the 45-day period provided for in article 42 of the General Insurance Law, in force at the time of the occurrence of the accident, begins to run.

NOTIFY.- Given at the Superintendence of Banks and Insurance, in Quito, Metropolitan District, on the seventeenth of June of two thousand fifteen.

(Signature)
Econ. Rodrigo Landeta Parra
GENERAL INTENDANT (S)
PRESIDENT OF THE BANKING BOARD SESSION (E)

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

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

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