Banking Board of Ecuador

RESOLUTION No. JB-2015-3423

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 date of entry into force of that Code, 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 1, 2013, with a validity of one year, the company Agrodi S.A. contracted with Condor S.A. Insurance Company, the Multirisk Insurance Policy No. 184, endorsement No. 123985, through which the insured was covered against losses and/or damages to the assets detailed in the particular conditions of the contract or its annexes, and over which, in the event of an accident, the company will indemnify according to what is indicated in the conditions, exclusions, and provisions contained in the policy, with a maximum coverage of US$ 3,044,285.00;

THAT by email on June 24, 2013, the insured informed Condor S.A. Insurance Company of the accident that occurred on June 19, 2014, involving the theft of 17,787 birds from the La Campana Farm located at kilometer 4 on the El Morro – Data de Posorja road, Guayas province, the amount of which is US$ 42,888.01;

THAT by communication No. DS/11-011-14 of October 2, 2013, Mr. Oton Chávez Torres, Operations Manager of Condor S.A. Insurance Company, informed the company Agrodi S.A. that the accident that occurred on June 19, 2014, was not covered because what happened corresponded to theft (disappearance of goods without violence or threats), which coverage was not covered by the contracted policy, for which reason they declined to attend to the event;

THAT by communication received at the Regional Intendancy of Guayaquil on May 26, 2014, Mr. Juan Abrahan Chiriboga Solano, through a Special Power of Attorney granted by the company Agrodi S.A., filed an administrative claim against Condor S.A. Insurance Company seeking that the insurer pay the corresponding indemnity for the theft of 17,787 birds from the La Campana Farm;

THAT by letter No. DAyEU-SSP-REQ-2014-265 of May 29, 2014, the User Attention and Education Directorate of the Regional Intendancy of Guayaquil, ordered Mr. Oton Alberto Chávez Torres, General Manager of Condor S.A. Insurance Company, to send the explanations of the case, accompanied by the certified documentation related to the claim of Mr. Juan Abran Chiriboga Solano, Special Representative of the company Agrodi S.A.;

THAT by resolution No. SBS-IRG-DAyEU-SSP-2014-106 of August 4, 2014, the Regional Intendancy of Guayaquil, ordered Condor S.A. Insurance Company to pay in favor of the company Agrodi S.A. the sum of 30,000.00, together

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with interest calculated at the maximum conventional rate fixed according to law, from August 25, 2013, the day after the date on which the forty-five days that the insurer had to pay the accident expired, having to deduct from said indemnity the values agreed in the policy;

THAT by communication of August 14, 2014, received at the Regional Intendancy of Guayaquil on the 19th of the same month and year, Dr. Eduardo Peña Hurtado, General Manager of Condor S.A. Insurance Company, with the professional sponsorship of Dr. Víctor M. Carrión Varas, filed an appeal against the Banking Board of the resolution No. SBS-IRG-DAyEU-SSP-2014-106 of August 4, 2014, relying on article 70 of the General Insurance Law;

THAT by resolution No. SBS-IRG-DASSP5-2014-024 of August 22, 2014, the Regional Intendancy of Guayaquil, granted the appeal filed by Dr. Eduardo Peña Hurtado, General Manager of Condor S.A. Insurance Company, to the content of resolution No. SBS-IRG-DAyEU-SSP-2014-106 of August 4, 2014;

THAT by letter No. JB-2014-2357 of September 2, 2014, Lic. Pablo Cobo Luna, Secretary of the Banking Board, notified the appellant with resolution No. SBS-IRG-DASSP5-2014-024 of August 22, 2014, and extended by sixty additional days the term for the resolution of the appeal filed, under the provisions of article 182 of the Codification of the General Law of Institutions of the Financial System;

THAT through letter No. JB-2014-2358 of September 2, 2014, addressed to lawyer Juan Abrahan Chiriboga Solano, Special Representative of the company Agrodi S.A., Lic. Pablo Cobo Luna, Secretary of the Banking Board, sent a certified copy of resolution No. SBS-IRG-DASSP5-2014-024 of August 22, 2014, as well as a photocopy of the appeal written presented;

THAT according to article 42 of the General Insurance Law, once the forty-five days following the day on which the insured or beneficiary presents the corresponding written 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 in its defect, formulated objections to such claim, the insured can go to the Superintendence of Banks and Insurance 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, that is, its pertinence or lack of legal pertinence;

THAT article 22 of the Insurance Contract Legislation, issued by Supreme Decree No. 1147 published in the Official Register No. 123 of December 7, 1963, provides:

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

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circumstances excluding his responsibility.";

THAT in compliance with what is provided in article 22 quoted above, the company Agrodi S.A. proved the theft of the birds from the La Campana Farm by filing the complaint with the Prosecutor's Office of Criminal Matters of Guayas; and, the amount of the indemnity with the inventory kardex of growing chickens as of June 19, 2014, the date of the accident;

THAT from the review of the file, it has been verified that on July 25, 2013, the company Agrodi S.A. delivered to Condor S.A. Insurance Company all the necessary documentation according to the contracted policy so that the insurance company proceeds with the payment of the corresponding indemnity for the accident that occurred on June 19, 2013; therefore, from that date the period of forty-five days provided for in article 42 of the General Insurance Law began;

THAT as stated, the denial of payment contained in communication No. DS/11-011-14 of October 2, 2014, received on the 3rd of the same month and year, is untimely;

THAT by signing the Multirisk Policy No. 184, the conditions that were agreed govern the contractual legal relationship, apply during the validity of the contract, and must be complied with by the parties obligatorily according to what is provided in article 1561 of the Civil Code, which provides:

"Art. 1561.- Every contract legally celebrated is a law for the contractors, and cannot be invalidated except by their mutual consent or by legal causes.";

THAT regarding the amount of the indemnity, it can be indicated that according to what is stipulated in the particular conditions of the Multirisk Policy No. 184, the insured amount for losses in location 5 (La Campana Farm) is US$ 30,000.00; therefore, the value of US$ 2,000.00 corresponding to theft of furniture, furnishings, utensils, and office equipment is not applicable;

THAT the National Legal Intendancy, through memorandum INJ-DNJ-SAL-2015-0328 of April 16, 2015, recommended to the Banking Board to reject the claim contained in the appeal filed by the General Manager of Condor S.A. Insurance Company; and,

IN exercise of its legal powers,

RESOLVES:

ARTICLE 1.- REJECT the appeal filed by Dr. Eduardo Peña Hurtado, General Manager of Condor S.A. Insurance Company; and, consequently, RATIFY resolution No. SBS-IRG-DAyEU-SSP-2014-106 of August 4, 2014, through which lawyer Humberto Moya González, Regional Intendant of Guayaquil, ordered Condor S.A. Insurance Company to pay in favor of the company Agrodi S.A. the sum of 30,000.00, together with interest calculated at the maximum conventional rate fixed according to law, from August 25, 2013, the day after the date on which the

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forty-five days that the insurer had to pay the accident expired, having to deduct from said indemnity the values agreed in the policy.

ARTICLE 2.- ORDER that the insurance company comply with what is established in the previous article within a period of fifteen days, under legal warnings. If it does not do so, it would be subject to what is provided in letter a) of article 55 of the General Insurance Law.

NOTIFY.- Given at the Superintendence of Banks and Insurance, in Quito, Metropolitan District, on May 20, 2015.

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

I CERTIFY.- Quito, Metropolitan District, on May 20, 2015.

Lic. Pablo Cobo Luna
SECRETARY OF THE BANKING BOARD