By means of ruling STC2174-2025, issued on February 26th, 2025, the Civil, Agrarian, and Rural Chamber of the Supreme Court of Justice (hereinafter, the “Court”) ruled on the appeal of a decision issued by the Superior Tribunal of Bogotá, which had adjudicated a constitutional remedy filed against the Colombian Financial Superintendency – Delegation for Jurisdictional Functions (the “SFC” for its acronym in Spanish).
The case arose from floods that occurred in 2022 on a national highway operated by a concessionaire company, which was insured under a non-contractual civil liability insurance. The affected parties filed a consumer protection action before the SFC, arguing that the concessionaire was civilly liable for the damages and that, consequently, the insurer should compensate them. In support of their claim, they contended that a report from the Office of the Comptroller General of the Republic confirmed the concessionaire’s responsibility for the flooding.
The SFC rejected the claims, reasoning that the concessionaire’s civil liability had not been proven, as the Comptroller’s report merely contained warnings without assigning civil liability for the damages.
In response to this decision, the affected parties filed a constitutional remedy, which was decided against them by the Superior Tribunal of Bogotá. Then appealed the ruling before the Court, which upheld the Tribunal’s decision based on the following:
Considerations:
- Lack of evidence regarding the concessionaire’s liability
The Court reiterated that there was insufficient evidence to establish that the floods were caused by a defect in the execution of the project. No judicial or administrative decision had found the concessionaire liable, and although there were observations from the project supervisor and requests for adjustments from the National Authority for Environmental Licenses (ANLA), no sanction had been imposed to establish the concessionaire’s responsibility for the flooding.
“it was not proven within these proceedings that a judicial or administrative decision had determined a defect in the construction or execution of the work by [the concessionaire] as the cause of the flooding, it is true that the supervisory entity has raised objections to the proposed adjustment works and even that the ANLA has requested the Concessionaire to implement certain additional hydraulic and drainage measures, however, the CONCESSIONAIRE has not been sanctioned, neither by the ANLA, nor by the ANI, nor by any other administrative authority, for non-compliance with the licenses, breach of contract, or for being directly responsible due to a culpable or omissive act causing the flooding (…).”
- Non-applicability of indemnification
As the concessionaire’s civil liability had not been established, the Court concluded that the affected parties were not entitled to indemnification, given that coverage under a civil liability insurance policy requires proper proof that the insured is non-contractually liable for the damages caused.
“(…) it is not technically possible to trigger the insurance policy at issue, which, by legal mandate, required proof of the occurrence of the insured event (…) which in this case was the non-contractual liability of the insured (…), who (…) formally complied with the regulations in force at the time of the highway’s construction, following the applicable technical manuals, standards, and rules, and obtaining all the required licenses, without any evidence of unlawful, negligent, or wrongful conduct in the construction and execution of the project.
Accordingly, the Court upheld the defenses based on the absence of proof of the elements of non-contractual civil liability covered under the insurance contract.”
To access ruling STC2174-2025 of February 26, 2025, click here.