The situation of the victim in liability insurance

December 04 , 2020 // Specialty

Published in Asuntos Legales

Cristian Velandia Rocha Thursday, November 26, 2020 The position of the victim regarding civil liability warns of a special treatment regarding the insurance contract and its legal peculiarities. The use of occurrence and claim modalities in the temporary insurance coverage regime increases concerns about the guarantees that the victim may have in their claim to access compensation for their damages. In this regard, the activity of insurers is of great relevance. What position does the injured party have in the civil liability insurance contract? According to article 1127 of the Commercial Code, the victim acquires the quality of beneficiary of the insurance contract, that is, of the recipient of a possible compensation. In this sense, it enjoys direct action against the insurer, which allows it to pursue the repair of its damages, on the one hand, against the insurer judicially or extrajudicially under the insurance contract raised by the person responsible for the damage, and other side, before the person responsible for the damage. It is an exception to the relative effect of contracts res inter alios acta. What types of temporary coverage are granted to the insured and how do they impact the victim?

The coverages currently being handled are: coverage by occurrence and by claim, the last one incorporated into the legal system by Law 389 of 1997. Coverage by occurrence implies that the claim has occurred during the term of the policy and this fact will be the that binds the liability of the insurer. Regarding the mode of occurrence, it is necessary that the harmful event occurs in the period of validity of the coverage and that the claim made by the victim to the person responsible for the damage or insurer, occurs within the period granted by the insurer as time limit for such claim to be made (minimum two years). It should be specified that the claim does not correspond in this type of coverage to the consummation of the damage, but to the claim that the victim presents within the term granted. A claim outside the term granted by the insurer enervates the claim of the insured to bind the insurer to assume the risk. What is the term that the victim has to request compensation? Although, in principle the actions derived from the insurance contract prescribe in a term of two years (1081 C.CO), the one that has to do with the exercise of the action of the victim against the insurer, prescribes in 5 years. This rule seeks guarantees against the victim, while this is unaware of the existence of the insurance contract. However, the term granted for the action against the insurer does not prevent it from requesting for a term of up to 10 years according to art 2536 C.C. the repair of the damage against the civilly liable party, who in turn, can call the insurer as guarantee, extending in many cases its responsibility, even up to 12 years. Does the victim's compensation take precedence over other obligations? According to article 1132 of the Commercial Code, the victim's credits have priority, after the treasury's debts, in the event that the insured is involved in a bankruptcy process.

La situación de la víctima en el seguro de responsabilidad civil

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