The obligation to file a claim with the insurer

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The obligation to file a claim with the insurer

As the retroactive nature of the procedural rules is not acceptable, the Audiencia Provincial de Girona has agreed to indicate that the obligation to submit a prior claim against the insurer, as a requirement for the admission of the claim established in art. 7 of Royal Legislative Decree 8/2004, in the wording given by Law 35/2015 of 22 September, is only applicable to traffic accidents occurring as of January 1, 2016.

In this way the AP of Girona considers the appeal filed by the plaintiff, revokes the order of the court that rejected the application for compensation claim for damages suffered as a result of a traffic accident occurred on April 29, 2015, For not accompanying the claim documents supporting the submission of the prior claim to the insurer.

The Court points out that the new legal regime is not limited to increasing the compensation amounts, but rather establishes a general regulation that aims to improve the protection of victims of traffic accidents, and in that line is framed the aforementioned art. 7 when it establishes that the prior claim to the insurer not only interrupts the limitation period, but also suspends it until notice is given to the injured party of the motivated offer or response.

The Audiencia considers that the procedural nature of this rule obliges to take into account the provisions of art. 2 LEC in the sense that the procedural rules will never be retroactive, as well as the provision in the transitional provision 4th CC, under which, in a case like this one, the plaintiff can choose between the previous or current rule . It also emphasizes that the inadmissibility of the claim would have a dramatic effect on effective judicial protection (Article 24 EC).

Consequently, it concludes that it does not make sense to require, when the accident to which the claim relates had occurred before January 1, 2016, that the claim be accompanied by the prior claim and that because the claim was not mandatory when the accident happened Nor, if it had been carried out, would have caused the victim to have the positive effects (interruption and suspension of the prescription) that derives from the norm that imposes it.

More information on the Judgment of the AP of Girona in "Legal News" --> Ver enlace

19 May 2017

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