Procedure to claim compensation for an accident
The new wording of art. 7.1 of the Law on civil liability and insurance in the circulation of motor vehicles, regarding the obligations of the insurer and the injured party, stating textually:
“… The injured party or his heirs will have direct action to demand that the insurer pay the aforementioned damages, which he will prescribe within one year. < /em>
However, prior to filing a lawsuit, they must notify the insurer of the claim, requesting the corresponding compensation. This out-of-court claim will contain the identification and relevant data of the claimant or claimants, a statement on the circumstances of the event, the identification of the vehicle and the driver that would have been involved in its production if known, as well as any medical assistance or expert or of any other type have in their possession that allows the quantification of the damage.
This claim will interrupt the calculation of the limitation period from the moment it is presented to the insurer obliged to pay the amount of damages suffered by the injured party. Said interruption will last until reliable notification to the injured party of the offer or definitive reasoned response.
The information of interest contained in the certificates and reports of the Security Forces and Corps in charge of traffic surveillance that collect the circumstances of the accident may be provided by them at the request of the affected parties, injured parties or insurance companies, except in the case in which the proceedings have been delivered to the competent authority to know the facts, in which case they must request said information from it”</p >
From this article we will obtain the necessary information to know how to carry out an accident compensation claim in conditions.
The claim for compensation for an accident can be made by the injured party directly or by any person on their behalf, such as lawyers or solicitors, and this by virtue of what is stated in the provisions contained in the Civil Code relating to the mandate.
In the case of minors or incapacitated persons, it will be carried out by the parents who hold parental authority, or by the guardian, curator or de facto guardian especially in case of incapacity in fact not declared by law.
Obviously, without giving rise to a doubt, the claim must be made before the insurer of the responsible vehicle and, in the case of several, before the respective insurers of all the responsible vehicles.< /p>
Regarding the content and form:
- Claimant identification. (Name and surname, national identity document or NIE or passport, date of birth)
- The condition in which the claim is made (injured, agent…)
- Identification of the insured of the entity to which the injured party or his representative is directed. </ li>
- Description of how the events occurred, identifying the vehicle with the license plate and the driver involved in its production, if known.
- An assessment of damages in relation to the 2016 scale.
And will be attached:
- The medical/care reports or documents available to the injured party.
- Also, to provide greater legal certainty to the claim and support the quantification of the damage, an expert may be provided by a doctor specialized in assessing bodily damage,
The deadline for claiming traffic accident compensation will be one year from the date of the accident or from the injury stabilization. And as long as it is done in a way that records that it has been done, such as a burofax, mail, etc. It will interrupt the computation of the term, and this is how it is included in art. 7 mentioned above.
On the other hand, the insurer within three months from receipt of the claim from the injured party, whether it concerns personal injury or the assets, you must present a reasoned offer of compensation.
After this three-month period has elapsed, if a reasoned offer of compensation has not been submitted for an unjustified cause or that was attributable to the insurer, interest will accrue from delay.
If the case occurs that the injured party suffers the damages for a period of time greater than three months or its exact assessment cannot be determined, the corresponding court will decide on the sufficiency or expansion of the quantity offered. (Art.7.8)
What is a reasoned offer of compensation
A reasoned offer of compensation consists, in general terms, of a letter in which the insurer informs the injured party of the amount of money it considers that corresponds to him in compensation.
The offer itself must contain the requirements of art. 7 in its section 3 specifies:
- “It will contain a compensation proposal for damages to persons and property that may have resulted from the accident. In the event of damage to persons and property, the valuation and compensation offered for both will appear separately.
- Damages caused to people will be calculated according to the criteria and amounts included in the traffic compensation scale.
- It will contain, in a detailed and detailed manner, the documents and reports on which the quantification of damages has been based, including the final medical report, so that the injured party has the necessary elements of judgment to decide its acceptance or rejection.
- It will be stated that the payment of the amount can be accepted even if we think that the proposal is not enough and we are going to request a second proposal. In other words, if the company makes an offer and we are not satisfied with the amount because we consider that it should be higher, we can accept the amount offered and continue the claim only for the difference that we believe should be the amount to be compensated.< /li>
- The amount offered may be consigned for payment. The consignment may be made in cash, through a joint and several guarantee of indefinite duration and payable on first demand issued by a credit institution or mutual guarantee company or by any other means that, in the opinion of the corresponding court, guarantees immediate availability, in where appropriate, of the consigned amount.”
As a novelty, it is required that said motivated offer be accompanied by the documents that have served as the basis for calculating it, for which reason the insurer will be obliged to send us a copy of the expert report.
In the event that the insurer does not make a reasoned offer, it must provide a reasoned response based on the following requirements (art 7.4):
“a) Give a sufficient response to the claim made, indicating the reason that prevents making the offer of compensation, either because the responsibility has not been determined, or because it has not been possible to quantify the damage or because there is some other cause that justifies the rejection of the claim, which must be specified.
When said reason is the delay in the healing process of the injured party and it is not possible to determine the full extent of the consequences suffered as a result of the accident or because, For whatever reason, the damage could not be fully quantified, the reasoned response must include:
- ° The reference to payments on account or partial advance payments on account of the resulting final compensation, taking into account the nature and extent of the damages.
- 2. The insurer’s commitment to present a reasoned offer of compensation as soon as the damages have been quantified and, until that moment, to provide reasoned information on the situation of the claim every two months from the sending of the response
b) It will contain, in a broken down and detailed manner, the documents, reports or any other information available, including the final medical report, which proves the reasons for the insurance company so as not to give a reasoned offer.
c) It will include a mention that it does not require express acceptance or rejection by the injured party, nor does it affect the exercise of any actions that may correspond to them to assert their rights.”
In short, the reasons why an insured can refuse to make the payment of the respective compensation are the following:
- He considers that there is no responsibility on his part based on the accident.
- Unable to quantify the damage.
- For any other reason, mostly based on technical issues or lack of personnel.
In the event of disagreement by the injured party with the reasoned offer, the parties by mutual agreement and at the expense of the insurer, may request additional expert information.</p >
This request for complementary expert intervention will oblige the insurer to make a new reasoned offer within one month from delivery of the report.</p >
In the case of not reaching an agreement, the injured party may either go to the mediation procedure or go to the appropriate jurisdictional channel to claim the corresponding damages.
It is Article 14 of this new Scale that refers to mediation as a form of resolution in case of disagreement. Verbatim writes:
“In case of disagreement with the offer or the reasoned response and, in general, in cases of controversy, the parties may resort to the mediation procedure”.
This mediation must be governed by the law that in turn regulates this activity (Law 5/2012, of July 6, on mediation in civil and commercial matters).</p >
The injured party will be in charge of requesting the start of mediation, within a maximum period of two months, counting from the moment they received the offer or reasoned response.</ p>