El daño voluntariamente causado: una propuesta de reforma del artículo 76 de la Ley del contrato de seguro

Abstract

The law understands, since 2001, that «those derived from the use of the motor vehicle as an instrument of the commission of intentional crimes against persons and property will not be considered traffic events». After decades of conflicting case law, the legislator made a clear decision: if someone takes a car as a murder weapon and, substituting it for a knife or poison, intentionally kills or injures someone, the case is not covered by insurance. But the 2nd Chamber of the Supreme Court tries to find pretexts to apply the rule to the minimum possible number of assumptions. And it happens that in civil liability insurance other than automobile insurance (and, notably, the professionals), things remain unclear. Pending the approval of a new insurance contract Law, it is urgent that article 76 be modified along the same lines in which the automobile insurance regime was modified in 2001, in order to that it is understood that the insured’s right to recover what he paid for his fraudulent act does not mean that, once a conviction is pronounced and the insured’s fraud is admitted, this entails the conviction of the insurer. Rather, it must be a right to recover what he paid, ignoring that the act had been intentional. Only an interpretation like this will mean that, in effect, the fraud is not insurable in Spain, as it is not in Germany, France or Italy.