Civil liability for accident of work or occupational disease Is the insurer exempt if the worker is not discharged at the time of the Work Accident?

The Supreme Court declares that the worker’s failure to discharge at the time of the Accident at Work (AT) does not preclude his consideration as a beneficiary of the liability insurance underwritten by the company. On the contrary, communicating the claim (AT) outside the period set out in the insurance contract clause does exempt the insurer from liability.

Liability insurance

On 8 June 2013, while serving the company, a worker suffered a cardiorespiratory arrest as a result of which he was left in an irreversible vegetative state, being recognized in a situation of great invalidity. In response to this situation, the company was held responsible for lack of discharge at the time of the Accident at Work (AT).

As a price for the Accident at Work, the company had subscribed to a liability insurance policy covering, interdo others, personal injury suffered by its workers as a result of an accident at work, provided that they occurred during the term of the insurance and were claimed for the first time in a reliable way during its term, or during the 12 months after the end of the insurance period. In this case, the term of the policy was extended until December 9, 2014, but the insurer was not aware of a claim until December 22, 2015.

The worker’s wife filed a demand in claim from the compensation for damages sufferedby the accident, which was dismissed by the social court, but estimated by Court of Justice,which held that the worker’s lack of discharge does not exclude liability,as the worker’s employee status is not required. Nor does it consider that it is a cause of exclusion that the claim for the damage occurred outside the prescribed periods, since it does not state that this clause has been signed by the insured person. Disconforme, the insurance company brings a appeal for the unification of the doctrine.

Therefore, the issues raised are as follows:

• (a) whether or not it proceeds to declare responsibility for the insurance company when the worker was not discharged from Social Security at the time he suffered the Accident at Work;
• and (b) if the temporary term clause is in the particular conditions of the insurance policy, without the fact that it was not signed by the insured person prevents its application.

Regarding the lack of discharge the Supreme Court notes that the policy refers to the beneficiaries of the insurance concluded as “employees” or “workers” of the taking entity, and the normative and jurisprudential criterion states that the discharge in Social Security is not a requirement constituting the employment relationship. It recalls that the employment contract exists where a person provides his or her services paid for as an employee and within the scope of organisation and management of the employer or employer irrespective of whether the employer has fulfilled his obligation to discharge the worker into the Social Security system. In the case prosecuted,the worker suffered an accident at work, thus fulfilling the requirements for the consideration of insured in the policy: accident of work of an employee of the insurance taking entity.

With regard to the application of the policy clause, according to which report the accident (Work Accident) outside the prescribed period exempts the insurer from liability, the Supreme Court recalls that, according to its doctrine, this type of clause that delimits the risk in its temporal aspect that does not limit the insured’sright, so it is a valid clause that does not need to have been expressly subscribed. Declared the validity of this clause, the Supreme Court concludes that the risk communication should have taken place within the prescribed period in the insurance contract since, after the accident, the duty to notify the claim that could be made up to one year after the end of that insurance contract arose, implying that the insurer could be notified of the claim until more than two years after the accident occurred, which was not done since the first communication to the insurer was the conciliation ballot for this procedure.

The appeal for the unification of doctrine brought by the insurance undertaking is therefore up to be up and fore estimation.

Civil Liability for Work Accident

Here’s what Workplace Liability Insurance consists of:

> purpose

• compensate for damages suffered by the worker affected by the non-compliance.

> Types

• damages caused when, in fulfilling its obligations (contractual liability).
• damage caused if by action or omission, intervening guilt or negligence causes non-contractual damage.

> Requirements

• production of damage:includes any physical, moral or economic damage, including emerging damage or loss of profit. The damage must be credited by the injured person and quantifiable;
• negligence of the dencausing : to exclude it it must prove that the employer must prove that he has exhausted any diligence required, beyond even regulatory requirements;
• causal link: causal link between the behaviour (by action or omission) of the causative subject and the damage infringed to the injured person;
• burden of proof: correspondsto the security employer or debtor. The recklessness of the worker may reduce liability, but only unforeseeable recklessness, force majeure or fortuitous case, or the exclusive guilt of third parties not avoidable by the employer will act as exempt.

> Responsible

• (including Temporary Work Enterprises (LES). Any member of the organizational structure is included, in compliance with the company’s instructions);
• user enterprise because of the accident of an LES worker;
• contractor company because of an accident by a subcontractor employee;
• the employer holding the workplace for lack of coordination with concurrent enterprises;
• manufacturers, importers or suppliers of machinery, equipment, products and work tools;
• prevention services if there is negligent action by their technicians or health workers to have a causal relationship with the accident;
• prevention audits in their negligent activity as audit entities.
• construction works: developers, competent technicians, health and safety coordinators, preventive resources.
• employer may enter into a liability policy covering possible damages. Clauses that exempt the insurer from liability, if the claim is not communicated within a set period, are valid in the case of risk-delimiting clauses, and therefore valid.

> Claim procedure

• demand the period of one year from the finality of the resolution recognizing the provision of Social Security (*).
• directed in front of all potential perpetrators;
• it corresponds to social jurisdiction;
• the limitation period is interrupted by:
  • the creditor’s (judicial or extrajudicial) claim,
  • any act of recognition of the debtor’s debt.
• is not interrupted by challenge to the administrative penalty or the employer’s benefit surcharge.
• competent jurisdiction is social jurisdiction.

*If the decision is not challenged, the calculation is initiated after the 30-day period established to make the prior complaint against that decision has elapsed.

Work Accident Liability Insurance

> approach

A worker suffers a Work Accident from which the corresponding low is derived, and various sequels that are classified as constitutive of Total Permanent Invalidity (IPT) for the usual profession.

The company for which it provided services has subscribed liability insurance in favor of its workers covering the risk of Accident at Work. The clause of the policy stipulates that the coverage only covers accidents that have been caused during the term of the policy, provided that the communication of the cause is made during the term of the policy or in a post-contractual period of one year from the date of termination, cancellation or termination of the policy.

Would this clause be valid?

> solution

The case-law on the insurance contract differentiates between clauses: harmful, limiting and delimiting. While the limitation clauses restrict the rights of the insured person, but without producing an insurmountable disproportion or imbalance, and which may become valid provided that they are specially highlighted and specifically accepted in writing, the delimiters take the risk of coverage through the insurance contract and are excluded from the obligation to stand out in a special way and acceptance in writing.

The establishment of a period that defines the risk of Accident at Work to claims that occurred during the term of the contract, the claim of which was validly notified during the term of the policy or up to one year after its completion is a lawful clause, since it is a clause limiting.

If I am claimed compensation…

Let’s say one of your employees suffers a work accident at your company’s premises and now claims damages. Can you do that? How much do these types of compensation have?

We help you resolve these questions below.

> Calculation of the amount

> Anticipate

If you have any questions or need any clarification on these types of issues, you can contact

any of our advisors so that we can help you resolve it.