Insurance claims and losses in Spain. Procedural aspects of the Spanish legal system

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1 Insurance claims and losses in Spain. Procedural aspects of the Spanish legal system

2 Further information If you would like further information, please contact a person mentioned below or the person with whom you usually deal. Contact Joaquín Ruiz Echauri T +34 (91) E Luis Alfonso Fernández Manzano T +34 (91) E This note is written as a general guide only. It should not be relied upon as a substitute for specific legal advice.

3 Contents Introduction 1 The Spanish Legal System: the different Jurisdiction Orders 1 Representation and Defence Procedure 1 Requirements to file an action: Court fess 2 Legal Cost 2 Subrogation 2 Direct Action 2 Expert Evidence 2 Insurance Contractual Provisions for Transactions and Litigation 3 Interest Charges under Article 20 of the Spanish Insurance Contract Act 3

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5 Lovells Insurance & Reinsurance 1 Insurance claims and losses in Spain. Procedural aspects of the Spanish legal system. INTRODUCTION This note gives a general view of some of the most important legal and procedural aspects of the Spanish legal system affecting disputes between an insurer and a policyholder or between injured third parties, the policyholder and the insurance company. Spanish judicial peculiarities are not exclusive to proceedings involving an insurance company. Some of them are general and should be taken into account whenever there is an intention, or obligation, to start legal proceedings in Spain. Consequently, this note starts with a brief description of these "general" peculiarities, before identifying those that exclusively affect the insurance sector. THE SPANISH LEGAL SYSTEM: THE DIFFERENT JURISDICTION ORDERS One of the aspects that without doubt most surprises those who are not experts in the Spanish legal system is the organisation and operation of its courts, not just because of their habitual slowness in the resolution of cases brought before them, but also because of the structure of the different jurisdictions that make up the Judiciary of Spain. The Supreme Court of Justice is the highest jurisdictional body with jurisdiction across the whole of Spain - except for matters relating to constitutional safeguards, in which case the highest order is the Spanish Constitutional Court. The Supreme Court is divided into five courts or jurisdictions: The First or Civil Court. The Second or Penal (Criminal) Court. The Third or Contentious - Administrative Court. The Fourth or Labour Court. The Fifth or Military Court1 The hearing of a matter by one or other jurisdiction is determined by the nature of the dispute. A purely civil question, for example, a dispute over a will, will be heard by the civil jurisdiction; a penal matter (robbery) will be resolved by the penal jurisdiction; a labour matter, such as a dismissal, will be heard by the labour jurisdiction and an appeal against a decision of a government body will be resolved by the contentious-administrative jurisdiction. However, in practice there are numerous situations in which the competent jurisdiction is not clear, since the matter that needs to be ruled on by the courts affects a priori several jurisdictional disciplines. Therefore, a claim regarding a group insurance (taken out by a company in favour of its workers) will be examined by the labour jurisdiction, while the civil courts have been declared competent to hear issues involving accidents at work where the claimant brings an action of noncontractual liability. Each jurisdiction has its own procedural regulations. In the civil jurisdiction the Law of Civil Proceedings is in force (and has supplementary application in the other jurisdictions); the penal jurisdiction is regulated by the law of Criminal Proceedings; the social jurisdiction is governed by the Law of Labour Proceedings and the contentiousadministrative jurisdiction by the Regulatory Law of Contentious- Administrative Jurisdiction. Each jurisdiction has a different structure and this is made up of different judicial bodies, although of these the highest jurisdictional body is the Supreme Court. The courts that make up each jurisdiction are as follows2: a. Civil: The Supreme Court High Courts (one per province). Courts of First Instance or Commercial Courts (that are mainly competent in bankruptcy proceedings). b. Penal: The Supreme Court The National High Court (this hears certain cases at first instance3 and appeals against rulings made by the Penal Central Courts, by the Examining Central Courts and by the Central Court for young Offenders). Penal Central Courts (competent to hear on certain offences at first instance). High Courts. First Instance Criminal Courts. Examining Courts. c. Contentious-Administrative: The Supreme Court. The Superior Justice Courts (one per Autonomous Community). The National High Court. Contentious-Administrative Central Courts. First Instance Contentious- Administrative Courts. d. Labour: The Supreme Court The Superior Justice Courts. First Instance Labour Courts. The complex structure of the Spanish Courts system, together with the fact that the Supreme Court is the highest court for each jurisdiction and the sole source of case law, results in a great accumulation of matters in the Supreme Court, in which the delays in ruling on proceedings extended to many years. REPRESENTATION AND DEFENCE PROCEDURE As in all European countries, legal defence is the responsibility in all cases (except for specific exceptions) of lawyers ("abogados"), who must be members of the Bar. Generally, representation in court will be exercised by solicitors of the Courts

6 Insurance & Reinsurance Lovells 2 ("procuradores"), qualified in Law and registered with an Association of Solicitors, whose duty is the representation of the party before the court, receiving notifications from the judicial body and producing the documents of their clients. In some situations, such as in the Contentious Administrative Courts, representation by a lawyer is obligatory, but the use of a solicitor is discretionary. REQUIREMENTS TO FILE AN ACTION: COURT FEES Since 2003, certain entities are required to pay a "fee for the exercise of jurisdictional authority in civil and contentious-administrative matters", basically depending on the turnover of the business. Entities with a turnover currently lower than 8 million Euros (classified by the regulatory rules of Corporate Tax as small-scale entities) are exempt from payment of the fee as are natural persons and non-profit making organisations subject to their own special tax system. Payment of the fee is required in the following cases: In the civil jurisdiction: filing of a suit in declarative proceedings, preparation of a counter-claim and filing of proceedings for appeals, extraordinary procedural infringements and motions to set aside. In the administrativecontentious jurisdiction: filing of a contentious-administrative appeal and filing of appeals to the Supreme Court and against judgements. The amount of the fee will be calculated on the basis of the amount claimed in the proceedings. LEGAL COST Legal costs include expenses that are incurred during the processing of legal proceedings (such as lawyers' and solicitors' fees, fees for expert witnesses, insertions of advertisements or public notices etc.). Each party pays its own costs unless the Court in its judgment orders one party to pay the others costs. At the handing down of the Judgement this is called the "order to pay costs". However, in cases in which the action taken is only partially upheld, the common rule is that each party pays their own costs and half of the communal costs. If an appeal is filed against a judgement, the judgement on the appeal may in turn contain a new order to pay costs. SUBROGATION An insurer's right to subrogation in place of the insured is regulated by article 43 of the Spanish Insurance Contract Act. Under Article 43 the insurer, once the compensation has been paid, may exercise the rights and actions of the insured, against a third party, up to the amount of the compensation. This legal provision supposes that, if the insured has suffered damage as a consequence of the action of a third party (for example, the burning down of an industrial warehouse) and the insurer compensates for the damages suffered, the latter will be able to bring an action of civil liability against the third party, because it is the action that the insured would have been entitled to bring itself. The insured, which has already received the compensation from the insurer, is legally obliged to collaborate with the insurer to recover the compensation paid, being liable for the damages that, by its acts and omissions, may be caused to the insurer in its right to subrogate itself. In any case, the insurer may not exercise the rights it has subrogated against the insured. For example, in industrial insurance (e.g. construction all risks) in which policyholders take out policies to insure themselves and all their contractors and sub-contractors, if the policyholders-insured parties suffer damage as a consequence of an action or omission attributable to one of their contractors, the insurer that pays compensation to this "principal" insured party, may not recover the compensation, through the exercise of a contractual and/or non-contractual liability action against the contractor that caused the accident because the contractor is also insured by the policy that gives the entitlement to recovery. DIRECT ACTION Under article 76 of Spanish Insurance Contract Law, the injured parties in an accident, or their heirs, will be entitled to direct action (i.e. claim compensation) against the insurer of the civil liability of the party that caused the injury. This gives the injured party a better chance of obtaining compensation than if it could only claim against the party responsible for the accident. To facilitate the exercise of direct action, the insured is obliged to declare to the injured third parties, or their heirs, the existence of the insurance contract and its contents. The insurer may not oppose the exercise of the action through the exceptions that it may hold against the insured (for example, the insurer may not allege to reject the claim, because of non-compliance by the insured party of its duty of disclosure). However, the insurer may bring an action for recovery against the insured in the event that the damage caused to a third party is due to its reckless conduct. EXPERT EVIDENCE In civil proceedings, expert evidence is clearly regulated in the Law of Civil

7 Lovells Insurance & Reinsurance 3 Proceedings, which considers two types of expert opinion: that which the parties supply to the proceedings through an expert unilaterally appointed by them and that given by an expert appointed by the court. Both reports shall be assessed by the court depending on their contents and the firmness of their conclusions and not based on the origin or method of appointment of the expert that issued the report. Experts may appear in the trial to explain their reports and answer requests for clarification. In actions including insurance claims, there is a special regulation regarding expert evidence which may be decisive in disputes that arise between the insurer and the insured. Under the Spanish Insurance Contract Act the insurer is obliged to pay the insured the amount of the damages resulting from an accident, based on the investigations and expert opinions needed to establish the existence of the accident and the extent of the damage. Sometimes the insurer and the insured are unable to reach an agreement about the amount and method of compensation. In this event, both the insurer and the insured have two options: to take recourse directly in judicial channels to resolve the dispute or to use a specific mechanism of appointing experts which is regulated by article 38 of the Spanish Insurance Contract Act. Article 38 has an imperative character, so that if one party unilaterally initiates expert proceedings, the other party may not withdraw from the proceedings. However, the parties may avoid these expert proceedings by mutual agreement or if neither party uses these proceedings in which case the dispute can be resolved through other channels, either legal or by arbitration. The proceedings consist of each party appointing an expert, who must accept said appointment in writing. Once both experts have been appointed, they must evaluate the cause of the accident, the value of the damage and the amount of the compensation and, if they reach an agreement, this will be shown in a joint record. If there i 4 s no agreement, both parties will have to appoint a third expert, a decision being issued by the three participating experts, either unanimous or by majority (this is what in practice is known as "tercería" - thirdparty proceedings). In the event that the parties cannot agree on the appointment of the third expert, then the court may make the appointment, the competent authority for this being the Court of First Instance of the place where the accident took place. Finally, it is necessary to re-emphasise that as foreseen in article 38 of the Spanish Insurance Contract Act, expert opinions resulting from these proceedings are legally challengeable. INSURANCE CONTRACTUAL PROVISIONS FOR TRANSACTIONS AND LITIGATION Article 74 of the Spanish Insurance Contract Law provides that, unless the policy states otherwise, when an accident takes place it is the insurer that assumes the legal direction of the insured against the claim of the damaged party, the incurred defence costs being paid by said insurer. In practice this condition is usually contained in the general insurance contract conditions. The assumption of defence by the insurer allows it firstly, to appoint its own lawyers to accept the defence of the insured and therefore, protect the interests of the company at all times and secondly, to ensure that the insured does not carry out independent transactions putting the equity of the insurer at risk without its consent. The authority to carry out any type of transaction or negotiation belongs, solely and exclusively, to the insurer, without the insured being able to reach any kind of unilateral agreement with the damaged third party. Also, the insured must give, as set out in the Spanish Insurance Contract Act, all necessary collaboration to the defence appointed by the company, undertaking to supply all information as requested for the best progress of the matter and give its assistance in all legal acts as necessary. Furthermore, as usually appears in the majority of policies, if because of lack of collaboration the chances of the accident defence are damaged or reduced, the insurer may sue the insured for damages. INTEREST CHARGES UNDER ARTICLE 20 OF THE SPANISH INSURANCE CONTRACT ACT Article 18 of the Spanish Insurance Contract Act provides that the insurer is obliged to pay the compensation at the end of the necessary investigations, as well as to pay, within forty days after the declaration of the accident, the minimum amount that it may owe. If the insurer does not pay the compensation or the minimum amount it could owe, then arrears charges under article 20 of the Spanish Insurance Contract Act will be applicable, except when the lack of payment of the compensation or the minimum amount is based on a justified cause. Nevertheless, in practice, when the courts order an insurer to pay compensation, it also normally imposes arrears charges as per article 20 of the Spanish Insurance Company Act. The arrears charges are very high, although two recent Rulings of the Supreme Court of 1 March and 16 May 2007, have clarified questions that the drafting of the principle had raised in practice. These important judgements of the Supreme Court mean, in practical terms, that insurance companies must pay an interest equal to legal interest (annually established by Law - the legal interest for 2007 is 5%) plus an uplift of 50% to that figure during the first two years from the date of the loss, and interest of 20%, once that term of two years has passed. The verdicts clarify the situation in the Civil Courts (until now there were different judgements, depending of each High Court of Appeal - many of them considered that the 20% interest must be applied since the date of the loss-), as well as in Labour Courts, although other Courts (Criminal and Contentious-Administrative ones) could still maintain different positions.

8 Insurance & Reinsurance Lovells Military jurisdiction has a residual character and only recognises questions raised in the military sphere and is not covered in this note. We do not refer to the Justice of the Peace, because of its lack of practical importance and residual character. For example, drug-trafficking, financial offences, etc.

9 Lovells LLP and its affiliated businesses have offices in: Alicante Amsterdam Beijing Brussels Budapest* Chicago Dubai Dusseldorf Frankfurt Hamburg Ho Chi Minh City Hong Kong London Madrid Milan Moscow Munich New York Paris Prague Rome Shanghai Singapore Tokyo Warsaw Zagreb* Lovells is an international legal practice comprising Lovells LLP and its affiliated businesses. ***DISCLAIMER TO BE COMPLETED ***. Lovells LLP All rights reserved.

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