Banking Board of Ecuador

RESOLUTION No. JB-2015-3335

THE BANKING BOARD

CONSIDERING:

THAT the second paragraph of the Third Transitory Provision of the Organic Monetary and Financial Code 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 this Code came into force, within a period of one hundred and eighty days, extendable at the discretion of the Monetary and Financial Policy and Regulation Board;

THAT on February 19, 2013, Bolívar Compañía de Seguros del Ecuador S.A., currently in liquidation, and Mr. Yulio Vicente Cassagne Torres, in his capacity as the insured, signed vehicle policy No. 242798, valid from February 16, 2013, to February 16, 2014, in order to cover a CHANGE brand vehicle; model CH6390; license plate No. GSD7326, for an insured value of USD$11,500.00;

THAT through a form titled "Claim for Accident," dated January 21, 2014, Mr. Yulio Vicente Cassagne Torres informed the insurance company that on January 20, 2014, the insured vehicle suffered an accident on Quito Avenue in the city of Guayaquil, which consisted of: "...the guardlet let pass, the vehicle ahead braked because then the guardlet made a stop, my car braked but since the asphalt was wet from the rain it skidded and hit the car...". He also indicated that the driver of the vehicle was Mr. Charles Yul Cassagne Montalvo, his father. It should be noted that on January 21, 2014, with the documentation delivered, the claim was formalized by the insured before the insurance company;

THAT through communication dated January 30, 2014, Engineer Mario Serratore, Regional Manager of Bolívar Compañía de Seguros del Ecuador S.A., objected to the insurance claim in question, arguing that according to Article 8 of the general conditions of vehicle policy No. 242798, the insurance company has no responsibility for the accident when the insured, at the time of the accident, commits traffic infractions and does not carry a valid driver's license. In the case at hand, the driver of the vehicle, on the date of the accident, held a type B driver's license valid until February 9, 2012;

THAT with a document entered into the Superintendency of Banks and Insurance on February 12, 2014, Mr. Yulio Vicente Cassagne Torres, under Article 42 of the General Insurance Law, filed an administrative claim before the Superintendency of Banks seeking that the regulatory body order Bolívar Compañía de Seguros del Ecuador S.A. to pay USD$2,200.00, under vehicle policy No. 242798;

THAT through Resolution No. IRG-DAYEU-SSP-2014-092, dated June 3, 2014, Lawyer Humberto Moya González, Regional Intendant of Guayaquil, addressed the administrative claim described above in the following terms: "REJECT, in accordance with what is provided in the fourth paragraph of Article 42 of the Codification of the General Insurance Law, the claim filed by Mr. Yulio Vicente Cassagne Torres against BOLÍVAR COMPAÑÍA DE

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Resolution No. JB-2015-3335

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SEGUROS DEL ECUADOR S.A., since said insurer has substantively objected to the payment of the indemnification, within the time limit contemplated for this effect in the first paragraph of the cited legal norm...";

THAT with a document entered into the Superintendency of Banks on June 30, 2014, Mr. Yulio Vicente Cassagne Torres, under Article 70 of the General Insurance Law, filed an appeal against Resolution No. IRG-DAYEU-SSP-2014-092, dated June 3, 2014, before the Banking Board;

THAT the only argument presented by the appellant is the transcription of Article 42 of the General Insurance Law;

THAT on January 21, 2014, Mr. Yulio Vicente Cassagne Torres, in his capacity as the insured, informed Bolívar Compañía de Seguros del Ecuador S.A., currently in liquidation, about the occurrence of the accident; and through communication dated the 30th of the same month and year, the insurer objected to the claim. Therefore, it is concluded that Bolívar Compañía de Seguros del Ecuador S.A. fulfilled its obligation to attend to the insurance claim within the 45-day period, counted from the claim;

THAT on the other hand, it corresponds to the Superintendency of Banks and Insurance and the Banking Board to analyze whether the insurer fulfilled the substantive requirement of the objection, apart from its timeliness, which in our case is demonstrated;

THAT the objection to the claim relates to Article 8, numbers 20 and 23, of the general conditions of the policy, which states:

"Article 8.- Excluded Risks:

The company will not be responsible and is exempt from all obligation in the following cases:

(...)

20.- When the driver disregards regulatory traffic signals, does not obey the red signal of traffic lights, drives at a speed exceeding the permitted speed, or commits infractions of the public traffic law.

(...)

23.- If the person who, with the consent of the insured and previously authorized by the company, drives the insured vehicle does not possess a driver's license or permit issued by the traffic authorities...

(...)".

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THAT Articles 89 and 140, letter h), of the Organic Law of Transport, Transit and Road Safety, published in the Official Register Supplement No. 398, of August 7, 2008, in force on the date of the accident, state:

"Article 89.- Circulation on roads enabled for vehicular traffic is subject to the granting of a prior administrative authorization, with the object of guaranteeing the aptitude of drivers in the handling of motor vehicles, including agricultural machinery, and their suitability to circulate with the minimum possible risk."

"Article 140.- Incurs a minor contravention of the second class and shall be sanctioned with a fine equivalent to ten percent of the unified basic remuneration of the general worker and a reduction of 3 points in their driver's license:

(...)

h) Whoever drives a motor vehicle without carrying their driver's license or if the same is expired;

(...)

THAT in the present case, it is evident in the accident claim form and in the documentation attached to said form that Mr. Charles Yul Cassagne Montalvo, driver of the insured vehicle with policy No. 242798, on the date of the accident, that is, January 20, 2014, held a type B driver's license, number 0907900427, valid until February 9, 2012, therefore, expired at the time of the accident. That would constitute, under letter h) of Article 140 of the Organic Law of Transport, Transit and Road Safety, in force on the date of the accident, a minor contravention of the second class. That also implies incurring one of the causes that exempt the insurance company from responsibility for the payment of indemnification for the accident, with regard to number 23, of Article 8, of the general conditions of the vehicle policy in question;

THAT by virtue of the foregoing, Bolívar Compañía de Seguros del Ecuador S.A., in liquidation, fulfilled what is provided in Article 42 of the General Insurance Law, regarding objecting to the insurance claim in a timely manner and with arguments;

THAT the National Legal Intendency, through memorandum INJ-DNJ-SAL-2015-0094 of February 3, 2015, recommended to the Banking Board to reject the claim contained in the appeal filed;

AND IN exercise of its legal attributions,

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RESOLVES:

SINGLE ARTICLE.- REJECT the petition contained in the appeal filed; and, consequently, CONFIRM Resolution No. IRG-DAYEU-SSP-2014-092, dated June 3, 2014, with which the Regional Intendency of Guayaquil disposed: "REJECT, in accordance with what is provided in the fourth paragraph of Article 42 of the Codification of the General Insurance Law, the claim filed by Mr. Yulio Vicente Cassagne Torres against BOLÍVAR COMPAÑÍA DE SEGUROS DEL ECUADOR S.A., since said insurer has substantively objected to the payment of the indemnification, within the time limit contemplated for this effect in the first paragraph of the cited legal norm...".

NOTIFY.- Given in the Superintendency of Banks, in Quito, Metropolitan District, on the first of April of two thousand fifteen.

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Econ. Rodrigo Landeta Parra
GENERAL INTENDENT, S
PRESIDENT OF THE BANKING BOARD, E

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I CERTIFY.- Quito, Metropolitan District, on the first of April of two thousand fifteen.

Lcdo. Pablo Cobo Luna
SECRETARY OF THE BANKING BOARD