The motivated offer
DIES TO QUO TO SUBMIT A MOTIVATED OFFER:
Deadlines in an offer motivated by a traffic accident
The term that the insurer has to issue an offer or response motivated by a traffic accident is three months from the stabilization of the consequences.
As we have mentioned before, it is very important that a claim is made with the responsible insurer after receiving stabilization of the injuries. The purpose of this claim is for the insurer to take into account all documentation and the motivation for its claim.
In the first of them, when it comes to material damage, the dies a quo is the day after the damage occurs; On the contrary, when it comes to personal injury, the dies a quo cannot be that of discharge from the disease, but of the stability of the sequelae, this being the reiterated legal doctrine collected, among others, in the STS of July 19, 2013, Resource 1235/2011): "the initial date of the calculation cannot be understood as that of discharge from the disease, but rather that of the determination of the effect of invalidity of the sequelae, that is, the moment in which the incapacity or the permanent defects originated, because until its scope is known, it cannot be claimed based on them, since it is at that moment when the injured party has precise knowledge of the entity of the damages (STS of May 20, 2009, July 14, 2008, October 3, 2006, September 20, 2006, July 22, 2003, February 13, 2003, January 22, 2003 and July 13, 2003). This doctrine obeys, in response to the principle of indemnity, the need to preserve the right of the injured party to be fully compensated in situations in which he has not been able to fully know the extent of his damage until then, for reasons in no way attributable to his person or behavior (SSTS January 2, 1991, October 6, 1992, November 30, 1999, March 3, 1998 and June 12, 2009)". Based on this legal doctrine in relation to article 7 of the Royal Legislative Decree 8/2004,
From the foregoing, it follows that the dies a quo will be determined, for the purposes of starting the term for the exercise of the action, at two different times depending on whether it is material damage or personal injury. In relation to the latter, it makes sense that until the stabilization of the injury is not reached, the calculation of the term does not begin, since until that moment the injured party cannot determine the consequences derived from the traffic accident, and consequently has no basis to carry out the out-of-court claim. A contrary interpretation would imply a decrease in the rights of the injured party, since if the criterion of injury stabilization was not established as dies a quo,
Entering properly the reasoned offer, we find that in the second section a novelty is introduced by allowing the insurer to, at its own expense and before formulating the reasoned offer, request private expert reports, if it considers that the documentation provided by the injured is insufficient for the quantification of the damage, being able to carry out these reports using their own or concerted services.
Allowing that if the insurer does not have sufficient medical documentation, it can make these reports in order to comply, within three months, with the obligation to present either a reasoned offer or a reasoned response. Likewise, by introducing this paragraph, it completes the obligation that Law 21/2007 already imposed on insurers to develop a diligent behavior in the quantification of the damage and the liquidation of the compensation as soon as they became aware of the accident.
Regarding the obligation to act with diligence, MAGRO SERVET8 indicates that: "Furthermore, paragraph 4 of article 7 of the Law states that: «The insurer must observe from the moment in which it becomes aware of the existence of the claim by any means, a diligent conduct in the quantification of the damage and the liquidation of the indemnity".
In other words, it is not just that the effort is to quantify, but also to carry out the liquidation and the consignment for payment, the consequences of non-compliance with this obligation being that of the imposition of interest on arrears of art. 7.2, para. 3 of the Law".
The reform operated by Law 35/15 does not introduce any modification in section 3 of article 7 of RDLeg 8/2004, which maintains the same wording. Other novelties operated by the aforementioned reform are reflected in section 5 of the aforementioned precept, which includes the possibility that the injured party, who is not satisfied with the motivated offer, can request complementary expert reports even from the IML
In relation to this matter and in the words of MAGRO SERVET10: "The problem is that the intervention of the forensic doctor from the extrajudicial point of view is only admissible in the event that the insurer presents a reasoned offer.
Note that in the wording of art. 7 RDLeg 8/2004 states that the intervention or help of the forensic doctor is "when the injured party does not agree with the reasoned offer". This wording has led to the IML throughout the country rejecting requests for recognition of the injured party there if he does not provide the reasoned offer.
The most important consequences derived from the intervention of the IML are the following:
1st. The statute of limitations for the exercise of actions continues to be interrupted.
2nd. This request for a report obliges the insurer to carry out a new
Reasoned offer within one month from the delivery of the expert report
3rd. The insurer's refusal to prepare new reports implies
resumption of the statute of limitations.