Banking Board Resolution JB-2015-3379

Banking Board of Ecuador

RESOLUTION No. JB-2015-3379

THE BANKING BOARD

CONSIDERING:

THAT the second paragraph of the Third Transitory 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 on the date of entry into force 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 a communication received at the Superintendency of Banks on August 8, 2013, Mr. Luis Eduardo Albán Pérez and Ms. Daisy Alexandra Mena Córdova, in their capacity as Representatives of the Committee of Claimants for the Survivors of Tame airline Flight Loja - Quito No. 148, with the professional sponsorship of Doctors Carlos Larrea Estrada and Fernando Larrea Martínez, requested this control body to order QBE Seguros Colonial S.A. to recognize the indemnification corresponding to each of the passengers and former crew members for the injuries caused by the accident of the aircraft ERJ-190, Registration HC-CEZ, which occurred on September 16, 2011. The claim presented was admitted for processing by lawyer Lorena Benítez Garzón, then Acting Subdirector of User Attention, via letter No. DNAE-SAU-2013-05477 of September 24, 2013, who with letter No. DNAE-SAU-2013-05478 of September 24, 2013, requested explanations from QBE Seguros Colonial S.A. as well as documented information regarding the claim presented;

THAT through a communication entered in the Superintendency of Banks on October 4, 2013, Mr. Diego Sosa Villaquirán, Executive President of QBE Seguros Colonial S.A., with the professional sponsorship of lawyer Sofía Almeida Montero, in response to the request from the control body stated in the preceding paragraph, manifested the following:

• That the claim presented be rejected since the claimants have not legally demonstrated that the insurance company is civilly responsible for the damages caused by the accident that occurred on September 16, 2011; that the claimants lack direct action against the insurer to claim civil liability, which has not been proven against Tame; and, that the actions, which might eventually correspond to the claimants once the presumed civil liability of Tame is proven, are time-barred;

THAT Engineer Carolina Pesántez Benítez, National Director of User Attention and Education, via letter No. DNAE-SAU-2014-0388 of January 22, 2014, informed Engineer Eduardo Albán Pérez and Ms. Daisy Mena Córdova, in their capacity as Representatives of the Committee of Claimants for the Survivors of Tame airline Flight Loja - Quito No. 148, that according to what is provided in article 53 of Supreme Decree No. 1147, the entity responsible for presenting the administrative claim before the Superintendency of Banks, as provided in article 42 of the General Insurance Law, is the

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Banking Board of Ecuador

Resolution No. JB-2015-3379 Page 2

Public Enterprise TAME Air Lines of Ecuador TAME E.P., in its capacity as insured according to aviation hull policy No. 1000098;

THAT through a document entered in the Superintendency of Banks on February 7, 2014, Doctor Carlos Larrea Estrada, lawyer for the Committee of Claimants for the Survivors of Flight Loja - Quito No. 148, filed an appeal against the administrative act contained in letter No. DNAE-SAU-2014-0388 of January 22, 2014, with resolution No. SBS-INSP-2014-174 of August 11, 2014, Doctor Fernando Uzcátegui Altamirano, National Intendant of the Private Insurance System, accepted the appeal for processing;

THAT lawyer Juan Francisco Simone Lasso, then Acting Secretary of the Banking Board, through letter No. JB-2014-2196 of August 14, 2014, sent to Mr. Diego Sosa Villaquirán, Executive President of QBE Seguros Colonial S.A., a copy of resolution No. SBS-INSP-2014-174, and extended the term to resolve the appeal by an additional sixty days;

THAT article 53 of the Insurance Contracts Legislation, issued by Supreme Decree No. 1147, published in the Official Register No. 123 of December 7, 1963, provides:

"Art. 53.- Civil liability insurance is not an insurance in favor of third parties. The injured party therefore lacks direct action against the insurer.

This principle does not prevent the insurer from adopting the measures it deems appropriate to prevent the insured from obtaining gains or profit from the contract.";

THAT in the particular conditions of aviation hull insurance policy No. 1000098, the following clauses are stated, which stipulate the following:

"CIVIL LIABILITY INSURANCE, SECTIONS II AND III OF AVNIC

COVERAGES:

Covers the legal liability of the Insured arising from aviation operations including third-party legal liability, bodily injuries, property damage, passenger legal liability, (...)"

CLAIMS PROCEDURE

Preceding Conditions:

The insured shall observe and comply with the terms, conditions, and endorsements of this insurance.

(...)

CLAIMS PROCEDURE:

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Banking Board of Ecuador

Resolution No. JB-2015-3379 Page 3

(...)

a) Provide complete written details of said event and send immediate notice of any claim (by a third party or passenger) with any letter or document.

(...)

LEGAL LIABILITY TO PASSENGERS:

1. Formal claim letter from the third party

(...)

5. Copy of the passenger's air ticket

(...)

a) Medical report with details of the injuries suffered by the Passenger.

(...)

THAT it is not appropriate for the National Legal Intendency to analyze the arguments presented by the appellant, since they refer to the claim presented by the Committee of Claimants for the Survivors of Tame airline Flight Loja - Quito No. 148, an injured party that lacks direct action against the insurer, as provided in the provisions transcribed above;

THAT upon analyzing the content of letter No. DNAE-SAU-2014-0388 of January 22, 2014, it is clear that it is a notification administrative act, and that it only refers to the inadmissibility of the claim presented by the Representatives of the Committee of Claimants for the Survivors of Tame airline Flight Loja - Quito, according to its text which states:

"(...)

For the reasons stated, given the legal norm invoked, the entity responsible for presenting the administrative claim before this Superintendency of Banks and Insurance, under the provisions of article 42 of the General Insurance Law, is the Public Enterprise TAME Air Lines of Ecuador TAME E.P., in its capacity as insured as stated in the policy described above, for the damages caused to the passengers.";

THAT the National Legal Intendency, via memorandum INJ-DNJ-SAL-2015-0113 of February 4, 2015, recommended to the Banking Board to reject the petition contained in the appeal filed by the legal representative of the Committee of Claimants for the Survivors of Flight Loja - Quito 148; and,

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Banking Board of Ecuador

Resolution No. JB-2015-3379 Page 4

IN exercise of its legal powers,

RESOLVES:

ARTICLE ONE.- REJECT the appeal filed by Doctor Carlos Larrea Estrada, lawyer for the Committee of Claimants for the Survivors of Flight Loja - Quito 148; and, consequently, CONFIRM the administrative act contained in letter No. DNAE-SAU-2014-0388 of January 22, 2014, through which Engineer Carolina Pesántez Benítez, National Director of User Attention and Education, informed Engineer Eduardo Albán Pérez and Ms. Daisy Mena Córdova, in their capacity as Representatives of the Committee of Claimants for the Survivors of Tame airline Flight Loja - Quito, that according to what is provided in article 53 of Supreme Decree No. 1147, the entity responsible for presenting the administrative claim before the Superintendency of Banks, as provided in article 42 of the General Insurance Law, is the Public Enterprise TAME Air Lines of Ecuador TAME E.P., in its capacity as insured according to aviation hull policy No. 1000098.

NOTIFY.- Given at the Superintendency of Banks and Insurance, in Quito, Metropolitan District, on the twenty-second day of April of the year 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 twenty-second day of April of the year two thousand fifteen.

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