The case dealt with in the judgment is a traffic accident that took place on May 17, 2009, which caused injuries to the driver of a motorbike, resulting in total permanent incapacity by decision of December 10, 2010 issued by the INSS (National Social Security Institute).

In this regard, the injured party sought a declaration of absolute permanent disability, for which he lodged an appeal with the High Court of Justice, which was dismissed.

At the same time, he sent two burofaxes to the insurer of the vehicle and subsequently filed a lawsuit against the insurer and the insured.

This lawsuit was brought before Badalona Court of First Instance no. 5, requesting in the pleadings a joint and several conviction against the insurer and the insured, claiming compensation of €265,445.11 for the injuries, after-effects and medical expenses derived from the accident.

The insurer partially settled the claim in the amount of €132,309 (taking into account that €66,570 had already been paid).

As for the insured, they opposed the claim, requesting dismissal on the grounds that the action was time-barred for them since 7 years had elapsed from the date of the accident to the date of the legal claim.

The Court of First Instance partially upheld the claim in relation only to the insurer (ordering it to pay 161.746 plus interest according to Article 20 LCS); but rejected the claim against the insured as the Judge decided that the prescription could not be considered as interrupted against the insured.

The judgement was appealed by the plaintiff, with Section 16 of the Barcelona Provincial Court ruling on December 20, 2018, declaring that the time limit to claim against the insurer is one year, being that the claims by burofax were only directed against the insurer (not against the insured) and that, therefore, it would be time-barred in relation to the insured.

This judgment was the subject of an appeal in cassation before the Supreme Court on the grounds that the appellant considered that there had been an infringement of Articles 1968.2 and 1969 CC, as well as a violation of the doctrine of jurisprudence on the commencement of the calculation of the limitation period.

The Supreme Court, after admitting this appeal, issued the aforementioned judgement of April 27, 2022 stating that we are faced with a case of "improper solidarity", understanding that the extrajudicial claim directed ONLY against the insurer does not interrupt the prescription of the action that could be deduced against the insured party, for all this, independently of the claims against the insurer, the period continues to run against the insured party, incurring in prescription.

However, the Supreme Court previously, on April 6, 2022, recognised the interruption of the statute of limitations with respect to the insurer in a claim directed against the insured.

In this case, the reason why such an interruption of the limitation period was effective is based on Article 1964 CC, since joint and several liability is based on a contract ("the interruption of the limitation period for joint and several actions benefits or harms all creditors and debtors equally").

It is clear that this rule takes on its full meaning in the case of contractual co-debtors who are jointly and severally liable towards the creditor.

Taking this reflection to the field of insurance, the policy that unites the insured and the insurer obliges the insurer to respond when the interruption of the prescription is carried out only against the insured as it is a case of solidarity derived from the insurance contract that unites both parties.

In this sense, the judgments of the Supreme Court of Octobre 21, 2022 and June 23, 1993 state.

The General Meeting of Magistrates issued a unanimous opinion in which it stated:

Paragraph 1 of Article 1974 CC only contemplates the interruptive effect in the case of joint and several obligations in the proper sense when such character derives from a legal rule or conventional agreement, and cannot be extended to the sphere of improper joint and several liability, such as that derived from non-contractual liability when several parties are judicially condemned.

CONCLUSION: The Judgement analysed maintains the line initiated years ago by the SC in relation to article 1974 CC, being its scope of contractual debtors, that is to say, the solidarity itself affects contractually united debtors, such as the insurer and the insured, who are united by the insurance contract.

By contrast, in the field of non-contractual liability this principle does not apply except in special situations of connection and dependence between them.

In the present case, as the limitation period is interrupted only with respect to the condemned insurer (and not with respect to the insured), the criteria proper several liability are not applicable, which would make the interruption of the limitation period extensive with respect to both.

 José Garzón García 

Departamento Direito dos Seguros | Madrid (Espanha)

Belzuz Abogados SLP

A presente Nota Informativa destina-se a ser distribuída entre Clientes e Colegas e a informaçăo nela contida é prestada de forma geral e abstracta, năo devendo servir de base para qualquer tomada de decisăo sem assistęncia profissional qualificada e dirigida ao caso concreto. O conteúdo desta Nota Informativa năo pode ser utilizada, ainda que parcialmente, para outros fins, nem difundida a terceiros sem a autorizaçăo prévia desta Sociedade. O objectivo desta advertęncia é evitar a incorrecta ou desleal utilizaçăo deste documento e da informaçăo, questőes e conclusőes nele contidas.