Life insurance is a long-term product. When the insured or beneficiary must receive the benefit contracted for death or resolution of the INSS granting the disability, it may have been many years since the date of hire. It is common that when the insured or beneficiary seeks the policy to verify their terms and benefits, they do not find it, since decades may have elapsed between the contracting date and the claim date.
The Regulation of Private Insurance Regulation (still in force), in its article 76, says the following textually:
Article 76. Premium policies and rates.
The insurance policy will be written in a way that is easy to understand. In case of loss of the policy, the insurer, at the request of the policyholder or, failing that, the insured or beneficiary, will be required to issue a copy or duplicate thereof, which will have the same effectiveness as the original. The request shall be made in writing explaining the circumstances of the case, providing evidence of having notified those who are entitled to a right under the policy and the applicant agrees to return the original policy if it appeared and compensate the insurer of the damages caused by the claim of a third party.
Insurers usually disregard this kind of requirement because looking for an old contractual document can be an impossible task (insurers do not keep documents). In many cases, they even refuse to allege any reason. In this sector, anything goes, no matter how ridiculous the excuse is.
The legal remedy for this refusal is found in the Preliminary Proceedings of arts. 256 y ss LEC, which is a legal action in which the Court may be asked to require the insurer to display the full text of the contracted policy.
The case of a life insurance lawyer policy, in my opinion, fits in the following legal cases, which constitute a closed list (numerous clauses):
Art 256.1. Assumption 1. – It is complied with, since it is a petition to the insurer against which the claim in claim for the provision of the insurance for the contingency derived from the death (or disability) would be addressed, so that it exhibits the documents in which the passive legitimization of the insurer is documented. The Preliminary Diligence is necessary to obtain a document that shows the legitimacy of the parties and above all, it is a document whose knowledge is necessary for the lawsuit.
Art 256.1. Assumption 2 – The exhibition of the complete contractual documentation that configures and establishes the conditions and terms of the insurance contract subscribed is requested, under which the corresponding claim actions will be exercised. In short, the contribution of the signed insurance contract is requested, because we intend to fulfil the agreed obligations. Without a contract, we cannot demand compliance. The thing that the insurer has in its power is the contractual documentation to which the trial will refer.
Art 256.1.supuesto 5º.- Although this assumption refers expressly to civil liability insurances, the Provincial Courts have come to understand that this assumption must be interpreted broadly, without its drafting constituting an express limitation on liability insurance civil, should be extended to other insurance contracts of different branches, if just cause and legitimate interest concur.
The 233/2010 Auto of October 21 of the Provincial Court of Madrid, section 9 , estimates the possibility of initiating preliminary proceedings for the exhibition of an insurance policy of the bond branch.
The Order 132/2005, of May 20, section 19 of the Provincial Court of Madrid (Rollo appeal 249/2005) , in its third law basis, argues and interprets that the alleged 5th of section 1 of Article 256 of the LEC, should be understood as extensive insurance of other branches such as life insurance, in which a beneficiary is usually a person other than the policyholder . This order concludes that, within the fifth assumption, other insurance contracts must be understood, provided that the conditions of legitimate interest and reasonableness are met, by application of the criteria of systematic and finalist interpretation of art. 3 of the Civil Code.
Art 256.1.supuesto 9º. – Finally, we cannot forget that we are in the insurance sector, a sector that is regulated by the Law on Private Insurance Supervision and Regulation. And as we have seen, the regulation of regulation and supervision of private insurance in force, in its art. 76, imposes the obligation on the insurer to issue a duplicate of the policy. Therefore we are in the presence of an obligation that is imposed by special legislation, for the protection of the rights of the insured, so the request for preliminary diligence is also covered under the assumption 9 of paragraph 1 of Article 256 of the LEC.
This is, in my opinion, the path that must be taken when the insurer hides the insurance contract, which is much more common than one might think.
The policy that the insurer exhibits in the Court must be the one contracted by the policyholder / insured, not the current model commercialized by the insurer, which is what they usually present in court. And if the insurer does not comply with this obligation of exhibition, or what it takes is a form that does not correspond to the policy contracted, the lawsuit that is posed later to claim the payment of the benefit, can be very fun, since If another insurance policy appears with respect to the one shown in the Preliminary Diligence, or the one actually contracted does not appear, the insurer’s procedural problem may become comical.