The legal procedure for claiming an accident at work is not strange to our legal branch, since it is perfectly possible for an insurer to be involved in a procedure of this type in the social jurisdiction, either because the injured workers themselves have insurance that allows them to have legal defense, either because this insurance is predicated on the employing company or on other third parties who may be involved in these proceedings (such as, for example, the company where the accident occurred, if it is different from the employer, or the manufacturer of a product, if it is the alleged defect of this product that caused the accident).
In these cases where there is a plurality of co-defendants, a crucial question arises: does the filing of the claim interrupt the limitation period vis-à-vis all the interested parties? Or, in other words, how is the limitation period interrupted with respect to each of the co-defendants?
The general rule, as set out in Article 59 of the Workers' Statute, is that the period for the exercise of actions arising from the employment contract is one year, a period that coincides in our law with the actions that could arise from a possible non-contractual liability. As for the time from which this period is calculated, the so-called dies a quo, Article 59.2 itself, in line with the general rule established in Article 1968 of the Civil Code, establishes that the period for the limitation of the action is counted from the time when the action could have been brought. In matters of bodily injury, as is the case in an accident at work, the case law of the Supreme Court has consistently indicated that the initial moment of calculation is that of the stabilization of the injuries, that is to say, from when the worker knows or can know the extent of their after-effects, and these have objectively stabilized, so that everything that follows that moment is a normal or foreseeable evolution of the injury suffered. In the words of an expert in the valuation of personal injury, the term begins to run when the worker goes from a curative phase to a purely palliative one, i.e., when the therapeutic possibilities are exhausted and everything that follows is a foreseeable development of the injury.
However, in cases of accidents at work, it is relatively common for the plaintiff workers to initially sue their employer company and, subsequently and in the course of the procedure, to extend their claim to other individuals or legal entities that they considers to be liable (in technical legal language, which they considers to have passive standing). In the example we gave at the beginning, it may happen that the workers extends their claim against the company where the accident occurred, against the manufacturer of the product whose alleged defect he considers caused the damage, or against their respective insurers, which is why this case is so relevant for insurance law. The question that arises in this case is the following: if the workers claimed against their employer company within the period of one year, but against the others after this period, is the action time-barred against the others, or does the exercise of the initial action against the employer paralyze the limitation period against all of them?
STS no. 497/2021, of 6 May
In this regard, the Supreme Court Judgment STS (Social Chamber) no. 497/2021, of 6 May (rec. 2611/2018), which refers to a claim for an accident at work within the framework of a works and services contract, in which the worker initially claimed against his employer (the contractor) and not against the contracting company, is of the utmost interest. In this judgement, the Supreme Court states that our law distinguishes between proper and improper solidarity. Proper solidarity is imposed by law or by the existence of a contract that so determines. Improper joint and several liability, on the other hand, arises from the tort and the plurality of parties who have participated in its production, and arises when it is not possible to individualize the liability of each one of them.
The Supreme Court therefore understands that in the case of an accident at work, when there are several parties who have concurred in the production of the damage, and it is not possible to individualize the liability of each one of them, the relationship that arises between all of them is one of improper solidarity, and its consequence is that the interruption of the limitation period that is made against one of them does not produce interruption against the others. When there is concurrence of responsibilities, the solidarity between the participants arises from the judgement, but not before, therefore the interruption of the prescription against one of the defendants (generally the employer in the first place) does not prejudice the prescription that legitimately occurs for the benefit of the others.
Our case law understands that in order to interrupt the limitation period, it is sufficient to make a declaration of intent aimed at preserving the right. In the interpretation of Article 1974 of the Civil Code, any form of externalization of this will has generally been accepted in this sense, it always being preferable to opt for an irrefutable means, i.e. one that allows proof of having been made (for example a bureau fax, a notarial summons, or in the case of proceedings for an accident at work, a request for conciliation and subsequent lawsuit). In the case in question, the aforementioned ruling means that the injured workesr should bear in mind that the claim they initially make by any reliable means should not only be addressed to their employer, but to all the others in which they have an interest in interrupting the limitation period, and for the co-defendants and their insurers, it is possible that they may benefit from the limitation period if the workers have not made these requests to each of them within a period of one year from when they were able to exercise the action.
The interpretation made by the aforementioned judgement is compatible with the STS (Civil Chamber) no. 294/2022, of 6 April, already commented on previously in other publications by Belzuz Abogados, which establishes that in the particular case of insurer and insured there is proper solidarity, in such a way that the claim made to one of them interrupts the limitation period against the other. In the case we are commenting on, therefore, the consequence sensu contrario is that if a claim is not made within the time limit against a co-defendant or its insurer, but against others not linked to them by their own solidarity, the limitation period will not have been interrupted against the former.
Conclusion: the STS (Sala de lo Social) no. 497/2021, of 6 May (rec. 2611/2018), establishes that in cases of accidents at work in which there is a plurality of liable parties who may have passive standing, and the liabilities cannot be individualized, these are linked together by a relationship of improper solidarity, so that the claim brought against only one of them does not interrupt the limitation period against the others. The consequence for the claimant worker is that they must take care to address their claims to each and every one of those he wishes to consider as defendants in future proceedings within the period of one year from the time he can exercise the action, since it is not enough to claim against the employer to interrupt the limitation period against all the others.
For the other interested parties and their insurers, it means that in the event that the claim has not been filed against one of them within the period of one year, they can benefit from the statute of limitations that has legitimately occurred with respect to them, without being harmed by the claim in time against other co-defendants, given that their own solidarity would arise with the judgement, but not at an earlier time.
From the Insurance Law Department of Belzuz Abogados, we are at your disposal to analyze and defend your problem in matters of civil liability and insurance in the most professional and efficient manner.
Adrián Macias Catalina
Belzuz Abogados SLP
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