The Supreme Court of Justice reiterated that the statute of limitations of the action of the insured under a liability insurance is counted from the moment the victim claims against the insured, whether judicial or non-judicial, and not from the moment in which the incident occurs.

Prescripción de la acción del asegurado en seguro de responsabilidad

By judgment STC13948-2019 dated October 11, 2019, the Supreme Court of Justice resolved a constitutional writ of protection (acción de tutela) filed by a transport company (insured) against the ruling of the Superior Court of the District of Antioquia for incorrectly applying the statute of limitations for the insured against the insurer.

In this case, the victims' successors sued the insured for the damages caused by the victims' death in a traffic accident. Subsequently, the insurer was linked to the process as a third-party defendant under the liability policy that covered the transporter.  

The insurer filed an objection by arguing that the statute of limitations had elapsed, since more than five years had passed since the date of loss, in accordance with article 1081 of the Commercial Code. This thesis was accepted by the Superior Court of the District of Antioquia.

Thereinafter, the Supreme Court of Justice indicated that the Superior Court of the District of Antioquia ignored the judicial precedent in the matter, as it failed to apply the special norm for liability insurance provided for in article 1131 of the Commercial Code.

Under this rule, the date to be considered for the purpose of calculating the statute of limitations applicable to the insured's action is that when the victim or its successors filed the petition, whether judicial or extrajudicial, and not since the incident´s date. 

In this case, as the successors of the victims did not exercise the direct action against the insurer but against the insured, the statute of limitations of the insured’s action had to be counted since the date when the lawsuit was served to the insured. 

 

 

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