Roj: SAP IB 1629/2013 Cendoj Id: 07040370052013100297 Body: Provincial Court Location: Palma de Mallorca Section: 5 Appeal No.: 688/2012 Resolution No.: 310/2013
Procedure: CIVIL Reporter: MARIA ARANTZAZU ORTIZ GONZALEZ
Type of Resolution: Judgment PROVINCIAL COURT SECTION No. 5 PALMA DE MALLORCA JUDGMENT: 00310/2013 Appeal Docket No. 688/2012 JUDGMENT No. 310
PRESIDING: MR. MATEO RAMON HOMAR MAGISTRATES: MR. SANTIAGO OLIVER BARCELO MS. ARANTZAZU ORTIZ GONZALEZ In Palma on July 18, 2013.
SEEN on appeal before this Fifth Section of the Provincial Court of PALMA DE MALLORCA, the Proceedings of ORDINARY PROCEDURE 1231/2011, originating from the COURT OF FIRST INSTANCE No.3 of IBIZA/EIVISSA, in which appears as the defendant-appellant, «REALE SEGUROS GENERALES SA», represented by the Court Procurator, Mr. ADOLFO LOPEZ DE SORIA PERERA, assisted by the Lawyer MR. JOSE LUIS BURGOS NAVARRO, as the plaintiff-appellee, Mr. Teodoro, AND MAPFRE FAMILIAR SA CIA. DE SEGUROS, represented by the Court Procurator, Mr. ANTONIO COLOM FERRA, and assisted by the Lawyer Mr. JOAQUIN AÑÓ AÑÓ, and as the defendant-appellee MR. Carlos Jesús, represented by the Procurator Mr. JOSE LUIS MARÍ ABELLÁN and assisted by the Lawyer Ms. CARMEN FERRER CAMACHO.
Magistrate-Ponente: Ms. ARANTZAZU ORTIZ GONZALEZ.
BACKGROUND OF FACT FIRST. – The trial proceeded through its legal procedures before the COURT OF FIRST INSTANCE No. 3 of IBIZA, and on July 18, 2012, a judgment was issued, the operative part of which is as follows: «I estimate the claim filed by the Procurator Ms. Martínez García on behalf of Mr. Teodoro and Mapfre, against Mr. Carlos Jesús and Reale Seguros and, consequently, I condemn the defendants jointly to pay Mr. Teodoro the amount of €5,437.50, plus interest as referred to in Fifth Legal Ground of this resolution, and to Mapfre the amount of €6,915.10, plus interest as referred to in Fifth Legal Ground of this resolution, with costs against the defendant».
SECOND. – Against the aforementioned judgment, and by the representation of the defendant «Reale Seguros Generales, SA», an appeal was filed, and following the procedures of the appeal, deliberation and voting took place on July 3 of the current year, with the appeal being concluded for Judgment.
THIRD. – Throughout the proceedings of this Court, all legal requirements have been observed.
LEGAL GROUNDS FIRST. – The lawsuit initiating the present litigation stems from a claim for damages based on non-contractual liability pursuant to Article 1902 of the Civil Code resulting from the damage suffered by the vehicle owned by the plaintiff, a «Lieger» brand, license plate Y-….-YKQ owned by Mr. Teodoro, and at the «HOSTAL REY» insured by «MAPFRE», as a result of the fire that occurred on February 20, 2011, in the Fiat Ducado van with license plate ER-….-F owned by Mr. Carlos Jesús, insured by the «REALE SEGUROS» entity.
The plaintiff argues that the fire occurred in the co-defendant’s vehicle insured by the co-defendant entity, causing damage to the plaintiff’s vehicle, the repair cost of which is €4,569.50, with a market value of €4,350, to which is added a 25% value for affection. Furthermore, it alleges that said fire caused damage to the Hostal Rey amounting to €6,915.10, an amount that has already been paid by MAPFRE to its insured, exercising its claim through subrogation pursuant to Article 43 of the LCS.
On the other hand, the co-defendant Mr. Carlos Jesús argues that it is true that his vehicle contained flammable and dangerous products, but not because he is professionally engaged in the transport of such materials, but because they were in his vehicle to be used in the repair of a boat owned by him, maintaining that in any case, it should be the insurance company that is responsible for the damages caused by the accident.
Furthermore, the co-defendant «REALE SEGUROS» rejects coverage of the claim, arguing, on the one hand, that the fire was caused by an external and unrelated cause to the vehicle, so it does not qualify as a traffic incident, and, on the other hand, that the vehicle was insured for personal use and not for dangerous, flammable, explosive, or corrosive goods transport, so it should not cover the claim. Moreover, it rejects the claimed value regarding the damages caused to the plaintiff’s vehicle, as the claimed amount exceeds the repair cost of the vehicle.
The judgment upheld the claim and sentenced the defendants jointly to pay €5,437.50 to Mr. Teodoro and €6,915.10 to «MAPFRE», plus interest, with costs against the defendant.
The co-defendant «REALE SEGUROS GENERALES, SA» appeals against it, pointing out errors in the evaluation of evidence by considering that the parked vehicle fire is a traffic incident, as well as because it does not consider that the risk derived from transporting dangerous goods is covered by the insurance policy, and finally, because of the valuation of the vehicle to which the judge grants the market value plus the 25% affection value higher than the amount of the damage repair according to the assessment provided.
The plaintiff opposes the appeal and requests confirmation of the trial court’s judgment.
SECOND. – For the proper resolution of the subject matter of this appeal, it is appropriate to begin by saying that, as this Court has repeatedly stated, the matter relating to the burden of proof and the consequences of lack of evidence is regulated in Article 217 LEC, a provision which, in its paragraphs 2 and 3, establishes that it is the responsibility of the plaintiff and the counterclaiming defendant to prove the certainty of the facts from which, according to the legal rules applicable to them, the legal effect corresponding to the claims of the lawsuit and the counterclaim derives, and it is the responsibility of the defendant and the counterclaimed plaintiff to prove the facts which, according to the rules applicable to them, prevent, extinguish, or annul the legal effectiveness of the facts referred to in the previous paragraph; which means that it is the responsibility of the plaintiff to prove the facts constituting the right invoked for recognition and protection, and, of the defendant, the facts impeding or extinguishing it
, without ignoring, on the one hand, that, in accordance with paragraph 1 of the aforementioned provision, if at the time of issuing the judgment the Court considers certain facts relevant to the decision to be doubtful, it must reject the claims of the plaintiff or the counterclaimant or the defendant or the counterdefendant, as the case may be, the burden of proving the facts that remain uncertain and support the claims, and, on the other hand, that, in accordance with paragraph 6 of the aforementioned article, for the application of the provisions of the previous paragraphs, the Court must take into account the availability and ease of proof corresponding to each of the parties to the litigation.
Regarding this last point, it should be noted that to determine whether a fact has one consideration or another, the specific situation must be examined, as a fact can vary depending on the perspective invoked, that is, adapting to each specific case, taking into account the facts affirmed or denied.
Therefore, the rule of the burden of proof must be interpreted taking into account the doctrine of flexibility, in the sense that a rigorous and rigid interpretation of said rule cannot be made, as stated in the STS of March 20, 1987, and the doctrine of ease, shifting the burden from one party to another according to the ease and availability expressly contemplated in the sixth paragraph of Article 217 LEC.
Applied to the object raised in your appeal by the plaintiff, it is appropriate to highlight the following aspects: Regarding the classification of the fire of the parked vehicle, upon reviewing the evidentiary activity, notably photographs number 9, 10, and 11 and the statement of the van owner, it is observed that the fire started from the front part of the vehicle. This is because the hostel coincides with the rear area from the point where the van was parked and it caught fire after the combustion started in the engine area to continue with the cabin (see information from the Local Police on page 16); the vehicle in question had been parked for no more than 6 hours, and it is not a proven fact that the mechanical elements were cold, nor that the materials found in it caused the combustion. On the other hand, the declarant stated that the horn was not working that morning. In addition to this, there is extensive jurisprudence on this matter from this very Provincial Court (judgment of June 26, 2013, third section with citations of numerous resolutions).
We highlight the judgment of the Supreme Court of February 6, 2012, which states that «the parking or stopping of a vehicle deserves the consideration of a traffic incident because this situation extends to any situation arising from the use of the vehicle,» based on the reasoning (I) that the regulations contained in the LRCS pursue, like its predecessors, the global protection of the victim against the risks derived both from driving strictly speaking and from the use of motor vehicles, (II) that the definitions of motor vehicle -which includes semitrailers- and of the traffic incident made by regulation by express legal reference must be interpreted from that perspective, (III) that the Law on Traffic and Road Safety regulates, among many others specific to traffic activity, situations of parking or stopping, and (IV) that the risk covered by compulsory insurance includes the eventual fire of the vehicle while parked due to the use of flammable substances and electrical elements for its normal operation.
Regarding the subject of appeal for the awarded compensation, the repair value of the vehicle amounted to €4,569.50 (see document no. 8 submitted with the claim), resulting uneconomical because the market value amounts to €4,350.
The compensation calculated on this value increased by 25% is correct.
Especially because if we analyze the report prepared by DEPSA (on page 33), the expert explicitly answers the question «should it be repaired?» with: No, but it is valued.
Therefore, the condemnation in the amounts indicated by the lower court is appropriate.
THIRD. – In line with all the above, there is no choice but to dismiss the appeal and confirm the appealed judgment, with express imposition of costs incurred on the appellant, in accordance with the provisions of Articles 398 and 394, both of the Civil Procedure Law.
FOURTH. – Likewise, and in accordance with the provisions of the Fifteenth Additional Provision of the Organic Law of the Judicial Power introduced by the LO 1/2009 of November 3, in its paragraph 9, the loss of the deposit to appeal made by the appellant is declared, to which the destination provided for in said provision will be given.
In view of the foregoing, the Fifth Section of the Provincial Court of Palma de Mallorca, RULES That, DISMISSING the Appeal filed by the Procurator of the Courts, Mr. ADOLFO LOPEZ DE SORIA PERERA, on behalf of «REALE SEGUROS GENERALES, SA», against the Judgment of July 18, 2012, issued by the Court of First Instance No. 3 of IBIZA, in the proceedings of Ordinary Trial No. 1231/2011, from which the present Appeal Roll derives, we CONFIRM the pronouncements contained in the appealed resolution, condemning the appellant to pay the costs incurred in this appeal and with the loss of the deposit made to appeal.
Thus, by this our Judgment, we rule, order, and sign.