We focus this article on the life insurance policy and its misnamed “health questionnaire”, following the sentence handed down to us by the Cadiz Provincial Court, in a case in which it was debated whether or not the life and disability insurance policy (associated with a mortgage) would cover an incident that occurred a few days after the underwriting of the policy. The case revolves around the health questionnaire or “adhesion bulletin”.

A form or “health questionnaire” that appeared as a pre-printed document was signed and displayed by our client and signed along with many other papers on the same day that the mortgage was signed. It is important to note that this form was signed at the Notary’s office on the same day that the purchase and subrogation of the mortgage was signed by the same bank that acted as the insurer.

The misnamed “health questionnaire” form consists of standard questions, displayed by a bank agent, not an insurance agent, which also contained a serious error in an essential piece of information such as the size of our client. One more proof of the total negligence of the insurance company in the subscription of this type of documents.

“if the insurance agent was the one who filled in the questionnaire that the policyholder only signed, this is equivalent to a failure to submit the questionnaire, the consequences of which cannot be passed on to the insured”.

The insurance company does not require a physical examination to check his health, nor does the aforementioned bank agent acting as an insurance agent have any knowledge of his health; the firm is presented with documents with the answers already typed, of which it is not even given a copy; and, to make matters worse, with a rather obvious error of form, such as his height.

It is, therefore, and in terms collected by the Jurisprudence, a “bulletin of adhesion” and not a “health questionnaire”.

This serious practice of the insurance companies is having a repeated response from our Courts and Tribunals when it is established that such practices “are equivalent to the failure to submit the health questionnaire” and, therefore, in the absence of a health questionnaire, the claims of these companies for “pre-existence” of an illness or “bad faith of the insured” cannot be assessed (Articles 10.3 and 89 LCS)

A good example of the above is the Supreme Court’s rulings of 6 April 2001, 4 April 2007, 20 April 2009 and 4 January 2008, which perfectly explain the situation described, as well as the court ruling on such abuses by insurance companies, all of which conclude that if “the insurance company’s agent completed the questionnaire that the policyholder merely signed, this is equivalent to a failure to submit the questionnaire, the consequences of which cannot be passed on to the insured”.

In accordance with the above, we must take into consideration the following

a) According to the Supreme Court’s uncontroversial case law, there is no “health questionnaire” duly presented by the insurer to the insured, and therefore, in the absence of this presentation, there is no lack of communication of previous pathologies, and, in short, it is not possible to speak of a lack of communication of previous pathologies and, in this sense, to invoke Arts. 10 and 89 of the LCS (in this same sense, Sentence of the A.P. Barcelona of 15 May 2008, Fourteenth Chamber, Speaker: Mr. Francisco Javier Pereda Gámez)

b) Nor may it be established in general terms that the insured has acted with “malice or bad faith” in the sense set out in Sections 89 and 10 of the LCS according to the doctrine set out above and whose case law we have reviewed.

Our client had undergone surgical operations in the past, although he never thought that they would have any influence on the taking out of the policy, as they were asymptomatic, and without any treatment at the time of taking out the policy.

Furthermore, the absence of bad faith is confirmed by the fact that our client took out the purchase of the home in which the mortgage from the same entity already appeared before any of the illnesses or diseases he later suffered from. And this insurance policy forms part of the mortgage financing, to such an extent that it is signed before the bank by an insurance company linked to it and on the same day as the public deed is signed. It works as a “pack”.

Thus, it has also been proven that the home purchase operation came from behind and this policy is, in fact, an integral part of the operation.

In short, the ruling has confirmed the court decision that condemned the insurance company to attend to the claim on the occasion of the incident and, consequently, our client will receive the outstanding amount of the mortgage on the date of the incident, with interest and legal costs.

(Martín de la Herrán)