¿Qué es la “letra pequeña” en los seguros? Cláusulas que delimitan el riesgo y cláusulas que limitan los derechos del asegurado
El otro día llovió a cántaros. Entró agua por el techo porque el tubo de desagüe no fue capaz de engullir toda el agua recogida por la cubierta. Mi empresa quedó totalmente anegada. Quedaron dañados muebles de la oficina, ordenadores, 15 telares y muchísimas existencias. Entre la reparación de las máquinas y las existencias (tejidos de algodón), el incidente me costó más de 700.000 €.
Vino el perito y me dijo que el siniestro no quedaba cubierto porque la intensidad de precipitación no superó una cantidad establecida en el contrato de seguro, concretamente no rebasó los 40 litros por metro cuadrado y hora. Me vinieron ganas de estrangularlo. Mi decepción con el seguro fue mayúscula. ¡Maldita letra pequeña! ¡Los seguros se buscan cualquier excusa porque no quieren pagar jamás!
El contrato
El contrato de seguro es un documento donde vienen recogidos una serie de pactos entre una entidad financiera cuya obligación es indemnizar en caso que se den ciertas eventualidades, la aseguradora, y quien transfiere el riesgo a la citada entidad a cambio del pago una prima o cantidad de dinero determinada, el asegurado.
A quien suscribe el contrato se le llama tomador.
Tipos de cláusulas del contrato
Los contratos de seguros tienen dos tipos de datos, cláusulas o estipulaciones. Lo que en derecho llaman cláusulas que delimitan el riesgo (CD), también denominadas cláusulas delimitativas (CD), y las cláusulas que limitan los derechos del asegurado (CL), también llamadas cláusulas limitativas (CL).
Cláusulas delimitativas (CD)
Estas cláusulas son las que definen, limitan y concretan aquello que se asegura. Estas cláusulas son las que indican el nombre de la aseguradora, la del tomador, la del asegurado, el NIF de todos, si se trata de un seguro de coche, una moto, una vivienda, un seguro de vida, de empresas, de salud o de lo que sea. Concretan el periodo de cobertura (fecha de efecto y de vencimiento), la matrícula del vehículo o el lugar donde se ubica el riesgo, las sumas aseguradas, los riesgos cubiertos, el precio del seguro, quien será el beneficiario del seguro, las franquícias y un sinfín de aspectos estrictamente necesarios para concretar aquello que se asegura.
Sirven para definir y concretar qué es aquello que se asegura o cual es el objeto del seguro.
Es obvio que no es lo mismo un seguro de coche, de una vivienda o de salud; y a nadie se le ocurre intentar que le arreglen la puerta de su coche accidentado con su póliza de salud. Pues para eso sirven las cláusulas delimitativas, para que todos sepamos que con el seguro de salud no podemos arreglar nuestro coche siniestrado.
Cláusulas limitativas (CL)
Una vez concretado y definido aquello que se asegura, estas cláusulas limitan los derechos del asegurado a percibir la indemnización. Ejemplos de estas cláusulas son:
- Quedan cubiertos los daños por agua si su origen es una tubería. Si su origen es un cubo de agua, un depósito, el agua de lluvia o proviene de cualquier sitio que no sea un tubo la aseguradora no pagará nada.
- Quedan cubiertos los daños por el viento si éste sopla más de entre 70 y 100 Km/h. Por encima de este baremo, el seguro paga los daños. Por debajo, el seguro no paga nada.
- Queda cubierto los daños por la lluvia siempre y cuando la intensidad sea superior a 40 litros por metro cuadrado y hora. Si la intensidad de precipitación es inferior no queda cubierto nada.
- Queda cubierto los daños por impacto si han sido provocados por un vehículo, un avión o un OVNI. Si el impacto ha sido por cualquier cosa distinta a lo descrito anteriormente no se paga.
- Sólo se cubre la responsabilidad civil si el accidente se produce en un martes y 13, la temperatura ambiente es inferior a 12 ºC y además juega el Barça-Madrid a las 21.00 horas.
Y así hasta un sinfín de cláusulas que van limitando los derechos de los asegurados. Estas cláusulas NO SIRVEN para concretar qué se asegura o cual es la finalidad de ese seguro sino que describen y concretan las situaciones o riesgos en los que la aseguradora se compromete a pagar la prestación.
La frontera entre uno y otro tipo de cláusulas
Obviamente las CD (cláusulas que delimitan el riesgo) son obligatorias y “van a misa”. Son las más importantes y vinculan a todas las partes. Han concretado aquello que se asegura. En cambio las CL (cláusulas que limitan los derechos del asegurado) deben estar específicamente aceptadas por escrito puesto limitan derechos usuario (asegurado, perjudicado o beneficiario) a ser indemnizado bajo unas determinadas circunstancias. Son las que conllevan más líos y confusiones. Por ello deben ser muy claras y destacadas de manera muy especial.
Existen cláusulas donde hay dudas de si se tratan de CD o CL. Eso es muy importante ya que, como dice la ley 50/80 de contrato de seguro, las condiciones generales y particulares se redactarán de forma clara y precisa. Se destacarán de modo especial las cláusulas limitativas de los derechos de los asegurados, que deberán ser específicamente aceptadas por escrito.
Por ello, si se entiende que las CL no cumplen con lo que dice la Ley, se considera que no son de aplicación, y puesto el contrato de seguro es un contrato de adhesión, la duda favorece al asegurado, al perjudicado o al beneficiario en contra de los intereses de las compañías de seguros.
Los juristas (abogados, jueces, magistrados,…) saben que las cláusulas que limitan los derechos del asegurado son las más conflictivas, ya que obligan a los seguros a pagar las prestaciones bajo unas determinadas circunstancias. En muchas ocasiones, esas circunstancias (que el viento sea muy fuerte, que los daños eléctricos provengan de sobretensiones externas,…) se prestan a confusión, o no fueron informadas al asegurado o éste, aunque las firmó, no sabía lo que firmaba. Por ello casi todos los desencuentros entre asegurados y aseguradoras tiene su origen en este tipo de cláusulas. Los peritos son aquellas personas que deben determinar las causas y consecuencias del siniestro, valorar los daños y demás circunstancias derivadas del contrato de seguro (cláusulas delimitativas y limitativas de derechos) para así establecer una propuesta de indemnización. Por ello los peritos son un factor clave en la gestión del siniestro.
La calidad de los seguros
La calidad de un seguro tiene su origen en dos aspectos fundamentales. El primero está en la cantidad de cláusulas que limitan los derechos de los asegurados, a modo que un seguro es mejor para el asegurado cuantos menos límites pone en su prestación, y peor cuantos más límites y condiciones introduce en su contrato. El segundo aspecto que determina la calidad de los seguros está en el cumplimiento de sus obligaciones legales y contractuales para con los asegurados, perjudicados o beneficiarios, a modo que a mayor cumplimiento mayor calidad del seguro, y a mayor incumplimiento peor seguro se trata.
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