The distinction between civil liability for exploitation and professional civil liability

July 09 , 2021 // Specialty

Published in Legal Today

Unlike the provisions of the Insurance Contract Law for some types of insurance, such as fire (art. 45 LCS) or theft (art. 50 LCS), which contain a precise delimitation of the risk that is covered, in civil liability insurance (art. 73 LCS) the legal definition of risk refers to the event provided for in the contract and for whose consequences the insured is civilly liable. Said legal uncertainty has given rise to different interpretations and judicial pronouncements. The insurance practice distinguishes between exploitation civil liability insurance (that which covers personal and material damage caused to third parties, either by the exercise of a professional activity, by the exploitation of a good, a business or a facility, but excludes damages produced to the very object of the professional activity) and the professional civil liability insurance (which covers all economic damages and losses caused by the insured in the exercise of his professional or business activity). From this perspective, neither the LCS nor the Supreme Court jurisprudence have distinguished between the two types of insurance. What the jurisprudence of the Supreme Court, judgment no. 730/2018 of December 20, 2018, has been to deal with the so-called exploitation civil liability insurance when addressing the delimitation of risk in this type of insurance. The Supreme Court points out that exploitation civil liability insurance only covers damage caused to third parties, but not damage caused to the same object on which the insured professional carries out his activity (well worked). In other words, the correct execution of the service that is the object of a contract between the insured and a third party in the scope of the insured's business or professional activity is not ensured.

The Supreme Court in its ruling 741/2011, of October 25, recognized the exploitation civil liability insurance as that which covers the civil liability that the insured must face as a direct consequence of the development of their business activity, but without insuring the Damages suffered by goods of any kind that are the object of the direct work of the insured, either for their custody, manipulation, transformation, elaboration, repair, installation, transport or any other manifestation of the business activity. And he added: It is known that the damages caused in the exercise of the business or professional activity, on the object to be repaired, have their most direct coverage in the professional civil liability insurance, since it is not acceptable that the exploitation insurance ensures the malpractice developed on the manipulated good, unless expressly agreed. The operating insurance despite this limitation, as the respondent reasons, continues to cover the damages produced in elements unrelated to the one that is being worked on, and its purpose is not to ensure the contractual lack of performance, nor the result of the work. It is important to bear in mind that the absence of coverage for damages caused in the exercise of business or professional activity, in exploration insurance, is not considered by the Supreme Court as a limiting clause. In short, it can be concluded that the exploitation civil liability insurance will not cover the damages derived from a defective execution of the business or professional activity, including the damages caused to the property on which the work is being carried out. The coverage of the damages derived from a faulty execution of the activity must be covered by a professional civil liability insurance.

 

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La distinción entre la responsabilidad civil de explotación y la responsabilidad civil profesional
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