In this judgement the Supreme Court analyses the relationship between concurrent insurance and reimbursement actions in cases of medical negligence. With this judgement a precedent is created that will be of great value for future claims of this type.

CASE - The case concerns a nurse at the Hospital de Manacor, who was sued on 28th May 2006 for her negligent behaviour which was the cause of injury to a patient. In the preliminary criminal proceedings, the defendant provided a copy of the civil liability insurance contract signed with the company Millenium Insurance.

The abbreviated proceedings concluded with a conviction for injuries due to gross negligence, civil liability (CR) of the insurer Zurich and the subsidiary civil liability of the Fundación Hospital Manacor, to compensate the victim in the amount of 84,320.26 euros (plus the interest of art. 20 LCS from May 29, 2006).

Therefore, although only one of the insurers had been involved, there were two civil liability insurance policies, the one of the hospital with the company Zurich and another one of the Professional Association of Nursing with Millenium.

The insurance company Zurich, once the compensation had been paid, tried to seek a participation in the Millenium entity on the grounds that the two policies covered the same risk.

This situation gave rise to an examination by the SC of the concurrence of insurance and reimbursement actions.

The appeal was based on the exercise of a reimbursement action, provided for in Articles 32 and 26 of the Spanish Insurance Contract Law (Law 50/1980 or “LCS”), brought by Zurich. Alternatively, it also brought an action for subrogation under Art. 43 of the LCS and 1.145 of the Civil Code.

The Seville Court of First Instance number 9 upheld the action under Article 32 LCS, which it considered reasonable to avoid the unjust enrichment of the insured as a consequence of overinsurance.

The Provincial Court, in the corresponding appeal, considered that the action was not applicable because article 32 of the LCS is not enforceable when the policyholders are different (Supreme Court Sentences of 24 July 2007, interpreted sensu contrario, and of 22 July 2000), nor was the subsidiary action based on articles 43 LCS and 1145 CC, since "it is not a question of payment made by a third party who seeks to recover what has been paid and demand it from the sole debtor".

The cassation appeal was based on a single plea in law, alleging infringement of Articles 43 LCS and 1145 CC. The appellant considers that all the requirements laid down by case law for the application of Article 43 LCS are met.

The SC partially upheld the appeal, on the grounds that article 1145 CC had been violated, based on extensive arguments:

1.- The injured party had two rights to obtain compensation for the damage suffered, each of them instrumented in the corresponding actions.

The first one, derived from the unlawful act causing the damage - from which arises the obligation of the insured to compensate the damage caused in the contractual, non-contractual, or derived from the criminal offence sphere (articles 1101, 1092 and 1902 of the Civil Code (CC) and 116 of the Criminal Code (CP); and
the second, from the insurance contracts taken out, which covered the civil liability of the person causing the damage, and which confers on the victim the direct action of Article 76 LCS, from which the insurer's obligation arises, also derived from the same unlawful act, but which presupposes the existence of an insurance contract, and which is subject to the special regime of articles 76 LCS and 117 of the CP (SSTS 200/2015, of 17 April, citing that of 12 November 2013, reproduced in the more recent 321/2019, of 5 June and 911/2022, of 14 December).

The case law of the Chamber has declared the links of solidarity existing between healthcare personnel and the insurance companies that cover their civil liability towards the injured party (judgments 1154/2007, of 8 November and 509/2018, of 20 September).

The two companies covered the same risk - the civil liability of the tortfeasor - and therefore, even though the policies were taken out by different policyholders, both guaranteed, within the limits of their coverage, the totality of the damage suffered, and the victim could exercise the civil action arising from the crime (articles 1092 CC, 116 and 117 of the CP and 76 LCS) against either of them; although, naturally, without being able to enrich himself for the loss suffered by being fully compensated by both companies.

Once the debt has been paid by any of the joint debtors, it is extinguished (STS 185/2013, of 7 March).

2.- In the sphere of external relations, the companies were liable to the victim, so that the latter could take action against any of them to obtain full compensation for the damage, but in the present case, the private prosecution and the Public Prosecutor's Office brought the civil action ex delicto of art. 1092 of the CC, in relation to articles 116 and 117 of the CC, only against the defendant and the Zurich insurance company, by virtue of the contract entered into by the owner of the Hospital, in which the nurse who caused the damage provided her professional services.

In accordance with the provisions of Article 117 of the CC, the insurers who have assumed the risk of civil liabilities arising from an event provided for in that legal text shall be directly liable in civil law up to the limit of the legally established or conventionally agreed compensation, and adds "without prejudice to the right of recourse against whomever it may concern.

Zurich could not require the injured party to bring the civil action against both insurers because such a course of action was not within the sphere of the insurer's decision. This would be an inadmissible interference in the rights of others. STS 538/2012, of 26 September and 459/2020, of 28 July, except, of course, in cases of necessary passive joinder of defendants (Article 12.2 LEC).

Nor could Zurich provoke the intervention of the Millennium company in the proceedings, by way of article 14 LEC, since such a form of intervention is limited to cases in which the law permits it, and there is no provision to support it.

3- The dismissal of the claim, based on article 32 LCS, constitutes a final decision; however, both the claim and the appeal were based on the violation of articles 43 LCS and 1145 C.C.; the latter precept establishing that the payment made by one of the joint debtors extinguishes the obligation; nevertheless, the one who made the payment may claim from his co-debtors the part corresponding to each one, with the interest on the advance payment.

On this issue, the argument put forward by Millenium, which argued that the reference to Article 1145 CC is idle and inappropriate, because that provision refers to joint and several debtors and, in the present case, only Zurich (which was a party to the criminal proceedings and convicted in the judgment) has been declared a debtor, is rejected. Therefore, article 43 LCS being inapplicable, article 1145 CC cannot come into play.

The Chamber recalls that case law has proclaimed that the exercise of the action of reimbursement by a joint and several debtor who has made the payment does not require a prior judgement condemning the other joint and several obligors against whom the action of return is exercised (article 1145 CC in relation to articles 1144 and 1137 CC), even in cases of improper solidarity (SSTS 106/2004, of 27 February and 87/2016, of 19 February).

On the other hand, solidarity excludes the necessary passive joinder of defendants, given that the creditor can take action against any of the obligors to demand compensation for the damage.

The joint and several obligation towards the creditor -external relations- is transmuted into a joint obligation between the co-debtors, once payment has been made, in internal relations (judgments 129/2015, 6 March; 249/2016, 13 April and 509/2018, 20 September).

In this way, each of the joint and several obligors, who was the full debtor of the performance, becomes the exclusive debtor of a part of it. However, the debtor who paid can also claim interest on the advance payment of the amount paid (Article 1145 II CC).

It is true that the injured party had the right to direct his action for compensation against any of the companies, in so far as they covered the same risk, or even to bring it against both, claiming a joint and several condemnation, without prejudice to the internal relations between insurers, but it is not fair that this right of choice of the victim should deprive the sentenced company to demand from the other company its proportional contribution to the compensation of the damage, when both assumed the obligation to compensate it, and, furthermore, this is the solution endorsed by Article 32 LCS for cases of concurrent damage insurance taken out by the same policy holder.

Resolution of the grounds of appeal:

Next, the Supreme Court, on assuming the instance, resolved the grounds of appeal raised by the company Millenium, which had been convicted by the Court.

With regard to the exception of prescription raised by the defendant, which considered the time limit of article 1968 of the CC to be applicable, specific to actions for non-contractual negligence; or, in another case, the two-year period of article 23 LCS.

The Court rejects the limitation period of the action stating "however, the action brought by the injured party is the ex delicto action of art. 1092 of the CC, which case law considers to be subject to the limitation period for personal actions of art. 1964 CC (STS 287/2019, of 23 May and those cited therein)".

During the pendency of the criminal proceedings, the civil action could not be brought either (art. 114 LECr.). In any case, the action arising from the damage insurance contract is subject to the two-year exercise period (art. 23 LCS). The criminal proceedings ended with a conviction on 15 November 2011, the statute of limitations was interrupted by burofax of 25 October 2012, and the lawsuit was filed on 21 February 2014, which means that this action would not be time-barred.

On the other hand, the action for reimbursement was considered to be subject to the time limit of art. 1964 of the CC by judgment 473/2015, of 31 July".

As for the interest under article 20 of the LCS, the Court declared that Millenuium should not be liable for it, because Zurich's conduct (default) is not transferable, as it derives from a personal act of the company and not from conduct attributable to the other company, which, of course, was not in default.

Conclusion

This judgement establishes that, although there are two different policyholders, as long as the insurers involved cover the same risk, even if only one of them has been sued/convicted, the convicted company that covers the totality of the claim, can exercise the action of reimbursement of art. 43 LCS against the other insurer involved in the risk that was not sued.

This judgement only refers to the principal amount as it does not contemplate the action of repetition on the interest of art. 20 LCS because the delay is not transferable, as it derives from a personal act of the first insurer and not from conduct attributable to the other company.

 José Garzón García

Belzuz Abogados SLP

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