Liability insurance. Deductible

In re: “Cuello Patricia Dorotea c/ Lucena Pedro Antonio s/Daños y perjuicios”, on August 7, 2007, the Supreme Court of Justice set aside a ruling of Tribunal B of the Civil Court of Appeals that had held that a deductible could not be asserted against the aggrieved party.

The Court maintained its rulings in re: “Nieto, Incolaza del Valle c/ La Cabaña S.A. y otros s/ Daños y perjuicios” and in re: “Villareal, Daniel Alberto c/ Fernández, Andrés Alejandro y otros s/ Daños y perjuicios”, of August 8 and 29, 2006, respectively.

In rendering this judgment, the Court took into consideration that the deductible had been established by the applicable regulations and that it was not incompatible with the principle of integral redress of the damages because, in fact, it fosters the prevention of damages and encourages the insured to avoid them as otherwise he would have to afford such damages with his own assets for a part of the loss.

The Court deemed that the freedom of contract, the right to compete, and the right to agree on the terms of an agreement constitute a legal proposition that the Court must protect as the tribunal for the defense of constitutional rights. Likewise, the Court held that freedom of commerce and the right to enter into an agreement, and to set forth its contents are rights protected under the Argentine Constitution and that the courts should not interfere with such principles.

Also the Court found that the lower court had made a partial construction of the Traffic Law (Law No 24,449) since the legal regime in force sets forth a system of mandatory insurance, as implemented by the National Superintendent of Insurance, who implemented the deductible. Therefore, the mandatory deductible may be asserted against the victim and the judgment may be enforced against the insurer only within the limits of coverage.

Finally, it should be noted that unlike the Supreme Court’s rulings on this issue, the Civil Court of Appeals issued a plenary judgment in re: “Obarrio, María Pía c/ Microómnibus s/ Daños y perjuicios” on December 13, 2006 where it held that the mandatory deductible set forth in public transport insurance contracts may not be asserted against the party who suffers the damages.