Case Number: SAP V 6189/2009 Cendoj ID: 46250370082009100687 Court: Provincial Court Location: Valencia Section: 8 Appeal Number: 518/2009 Resolution Number: 655/2009 Procedure: Civil
Ponente (Rapporteur): EUGENIO SANCHEZ ALCARAZ Type of Resolution: Judgment Appeal Number: 518/2009 SENTENCE NO. 000655/2009 ===========================
Honorable Sirs:
President: Mr. EUGENIO SÁNCHEZ ALCARAZ Magistrates: Ms. MARIA FE ORTEGA MIFSUD Ms. CRISTINA DOMENECH GARRET ===========================
In Valencia, on the second of December, two thousand nine, viewed by the Eighth Section of this Provincial Court, with Mr. Magistrate EUGENIO SÁNCHEZ ALCARAZ as the rapporteur, the proceedings of a trial of Greater Amount initiated before the Court of First Instance of Requena No.2, with case number 19/02 by MAPFRE Industrial against Innovación y Gestión Medioambiental S.A., Net, S.A., Groupama Plus Ultra Seguros y Reaseguros, S.A., and Allianz S.A.; regarding a claim for an amount, pending before it due to the appeal filed by MAPFRE Industrial.
FACTUAL BACKGROUND
FIRST.- The appealed Judgment, pronounced by the Judge of First Instance of Requena No.2, on June 26, 2008 contains the following «RULING: Dismissing the claim filed by the Attorney Mr. Gómez Brizuela on behalf of MAPFRE Industrial against Inges S.L., the insurance company Plus Ultra, Net S.A., and the insurance company Allianz, I must absolve and do absolve the defendant entities from the plaintiff’s indemnity claims. Costs are imposed on the plaintiff.
SECOND.- Against the same, an appeal was timely filed by MAPFRE Industrial., admitted in both effects, and the proceedings were sent to this Court of Appeal. The appeal was processed, setting November 30 of the current year for deliberation, voting, and judgment.
THIRD.- Legal prescriptions and formalities have been observed.
LEGAL GROUNDS
FIRST.- The entity Mapfre Industrial S.A. filed, in exercise of the subrogation action of article 43 of the Insurance Contract Law, a claim for a trial of greater amount, jointly and severally against the entities Inges, Innovación y Gestión Ambiental S.A., and Net S.A., as well as against their respective insurers, the Companies Plus Ultra S.A. and AGF Unión y el Fénix S.A., succeeded by Allianz Seguros y Reaseguros S.A. (as a result of the merger between the entities Allianz Ras, AGF Unión-Fénix, and Athena), in a claim for the amount of three hundred million pesetas, plus interest and costs. The amount claimed is the one paid to its insured Danalex S.A. pursuant to the settlement agreement signed on July 7, 2000, as compensation for the damages suffered in the building and contents, covered by policy no. 099-9780158865, as a result of the accident that occurred on August 20, 1997, at its premises located in the Industrial Estate of Castilla V-7, Plot 1-5 of Cheste. This event occurred when in August 2007, the company Danalex S.A. decided to remove the acid from two tanks of the anodizing line, one with sulfuric acid and the other with nitric acid, contracting the removal and treatment of these industrial waste with the authorized company Inges, Innovación y Gestión Medio Ambiental S.A., authorized manager no. 001/RTP/CV, which, in turn, had contracted the transport of the same with Net S.A. On August 20, 1997, at the request of Danalex S.A., operators from the company Net S.A. appeared at the premises, who were duly certified for the handling and transportation of corrosive substances, and began the extraction of nitric acid into the tanker truck with registration number V-3323- AM, certified by the company Eurocontrol S.A. for the transportation of dangerous and toxic goods, and authorized by the Ministry of Industry, Commerce, and Tourism. At the end of the loading operation, a small leak was observed, located in the truck’s cargo level indicator, and cleaning work was initiated to try to neutralize it and prevent spillage, but a second leak appeared in the tank filling duct, and since the spillage was uncontrollable, it was decided to return the acid to the tank, resulting in multiple leaks again, this time located in the metal cages of the truck’s conduit tube. As a consequence of the large amount of nitric acid spilled, significant damages occurred affecting both the building and the contents, forcing the complete cessation of industrial production at the Cheste factory. The four defendant entities not only opposed the claim for substantive reasons but the insurers alleged the concurrence of the exceptions of prescription, lack of active legitimacy, and necessary passive joinder. The trial court rejected all of them and, entering into the substance of the matter, considered the damages, both in their existence and amount, as well as the cause that had caused them, which was the spillage of nitric acid, however, it dismissed the claim, on the grounds that the resulting damage was not attributable to the co-defendants Inges S.A. and Net S.A., as they did not incur any negligence in the performance of their obligations.
SECOND.- This resolution has been appealed by Mapfre Industrial S.A., which has focused its disagreement on legal grounds seven and eight, regarding the liability of the defendant companies in the adjudicated accident, as well as on ground nine, concerning the imposition of costs, and the ruling.
With regard to the first ground of appeal, it should be noted that, as highlighted by the lower court in the fifth of the legal grounds, the plaintiff exercises two types of actions, one based on contractual liability against Inges S.A. and Plus Ultra and another, on extra-contractual liability against Net S.A. and Allianz because Danalex S.A. contracted the former for the execution of the cleaning and removal of acid from the tanks, and it, in turn, subcontracted Net S.A. to transport the substances contained in the tanks. As declared by the Supreme Court in the judgment of November 12, 1997, both contractual and extra-contractual fault respond to a common principle of law and the same compensatory purpose for the damages and losses caused to the injured party who is legitimized to claim, so that when a harmful act violates a contractual obligation and, at the same time, the general duty not to harm another, there is a juxtaposition of responsibilities, from which different actions arise. In this sense, the Supreme Court judgment of March 30, 2006, states that the Court has established the so-called «unity of fault,» which determines the existence of the same principles for contractual civil liability as for extra-contractual or tort liability (judgments of June 28, 1997, November 2, 1999, November 10, 1999, December 30, 1999, and November
7, 2000). Well, article 1,101 of the Civil Code establishes that those who, in the performance of their obligations, incur in fraud, negligence, or default, and those who in any way contravene the tenor of those obligations, are subject to compensation for damages and losses. In the matter of compensation for damages and losses due to contractual breach, repeated jurisprudential doctrine (judgments of March 5, 1992, March 18, 1992, April 21, 1992, April 7, 1993, February 15, 1994, May 17, 1994, October 19, 1994, and December 18, 1995, as examples), declares that mere non-compliance does not necessarily entail the production of damages and losses, so that: A) No compensation for damages can be awarded, whether derived from a contract or from a tort, if they have not been proven. B) This burden of proof falls on the creditor claiming compensation. C) The determination of the existence or amount of damages may be excluded from the aforementioned probative rigor, when, in the contract, a lump sum has been agreed upon in the event of non-compliance that the infringer must pay to the injured party, as compensation for damages, such as the cases of the so-called penalty clause of articles 1,152 and following of the Civil Code. D)
The declaration and proof of the existence of damages during the litigation cannot be replaced by referring them to the enforcement phase, since it is necessary for the parties to prove in the declarative process and for the judicial body to consider in the judgment the existence of a contractual breach or an unlawful act and the damages and losses actually caused, and E) Finally, it must be justified the causal link between the breach and the harmful result, which requires definitive evidence, as it is the basis of fault, since the guilt of the agent must be evident in the link between their conduct and the production of harm in order to establish the obligation to repair, without being based on mere conjectures or assumptions, but on indisputable probative certainty (Judgments of the Supreme Court of November 3, 1993, November 23, 1994, December 16, 1994, January 24, 1995, May 29, 1995, April 30, 1998, July 31, 1999, March 2, 2000, March 2, 2001, and May 31, 2005, among others). This means that causality is a problem of imputation, that is, damages and losses must result from or be caused by an act or omission attributable to the party liable for damages due to fault or negligence, and therefore, they must necessarily result from the act or omission from which they derive. In line with the above, it has been consistently stated that in any case it is necessary to prove the existence of the causal link, with the burden of proof falling on the injured party bringing the action, who logically must bear the unfavorable consequences of that lack of proof, since the possible liability will vanish if the aforementioned causal link cannot be established (Judgments of the Supreme Court of October 9, 2000, November 6, 2001, October 30, 2002, December 12, 2002, and December 23, 2002), with the next step being the application of said jurisprudential doctrine to the case under consideration.
THIRD.- The imputation made by the appellant today to the defendants was expressed in the seventh factual section of the complaint, indicating that «Danalex S.A. contracted with Inges S.A. for the management and transport of toxic and dangerous waste, because it is a specialized and approved company for this purpose and due to the activity it carries out and the high degree of danger of the substances it manages and recycles, the highest diligence and the adoption of all care standards and precautions in its development are required. Diligence that was not demonstrated by Inges S.A., since it sent a tanker truck owned by its subcontractor, the company Net S.A., in poor condition and whose elements were not at all in the conditions required to perform such a dangerous task, such as the loading and unloading of nitric acid. For its part, the co-defendant Net S.A. is equally responsible for being the owner of the tanker truck that caused the acid spill, and its conduct is also reproachable due to the poor condition in which the vehicle in question was found, which once again represents a serious negligence, given the high risk involved in the activity of the tanker truck that caused the damages.» This is the negligence alleged and no other, and therefore, these are the aspects that must be taken into account in order to determine whether there was an erroneous assessment of the evidence. The lower court excluded the liability attributed to them, understanding that Inges S.A. was not liable for the leaks from the tanker truck, as it was approved to transport hazardous substances, having passed an inspection just two months before the accident, valid until July 1998. It added that the cause of the damage was the nature and characteristics of the material with which the tanker truck’s tank was made, which did not withstand the acid attack and oxidized the metals of its walls, nor did it have excessive age, as it had been acquired from Parcisa S.A. in August 1995. This also meant that no negligence could be attributed to Net S.A. from the moment it subjected the truck to the required inspections and passed them, so any eventual liability would have to be transferred to other entities. Against this assessment, Mapfre Industrial S.A. argues that this implies an inconsistency or contradiction with the position held by the Court regarding the integration of the legal and procedural relationship, as well as a violation of the principles that integrate the application of Article 1,902 in our law. In this regard, it denounced the contradiction between the seventh and eighth legal grounds, not only with the dismissal of the exception of necessary passive joinder, but also and especially, with the orders of February 25 and June 1, 2004, in the incident of «calling to guarantee,» filed by Net S.A. and to which Inges S.A. adhered, which sought to bring Parcisa S.A. into the proceedings as the manufacturer of the truck’s tank causing the accident, as well as Eurocontrol S.A., which was dismissed. In essence, only the order of June 1, 2004 (pp. 2,636 to 2,638) could be discussed, insofar as the one of February 25 (pp. 2,588 to 2,590) was declared null and void (pp. 2,634 to 2,636), and therefore, procedurally, it is nonexistent for the purposes we are now concerned with. The main reason for rejecting this call for guarantee was that the necessary requirements were not met, and the presence of these entities was also not necessary to remedy a possible lack of necessary passive joinder. It is true that there is repeated jurisprudence declaring (Judgments of the Supreme Court of February 8, 1991, October 31, 1991, April 30, 1992, November 22, 1993, October 1, 1994, November 30, 1995, December 19, 1995, December 14, 1996, July 12, 1999, December 15, 1999, June 24, 2000, among many others) that in cases of improper solidarity in matters of non-contractual fault, with plurality of agents and single causal concurrence, the situation of necessary passive joinder does not become mandatory, as the injured party is empowered to direct the action against any of the directly responsible parties for the event and obligated to repair the compensable effects derived from it, in accordance with Article 1,144 of the Civil Code, without the need to sue everyone and without prejudice to the right of recourse with «inter partes» effects, and in this sense, the aforementioned order must be understood. What that resolution 4 is really saying is that given the type of action filed, the mentioned exception could not succeed, since, on the one hand, it would not affect the non-defendant parties, as it is evident that the only liability to be analyzed is that of those who have been called to the proceedings and, on the other hand, if they were condemned, nothing prevents the exercise of their right of recourse against those who may be equally responsible. Furthermore, if the concept of fault is the only theoretical and pragmatic explanation of the case generating the compensation derived from non-contractual liability, and when this is attributable to more than one subject, without there being elements
conducive to differentiating the specific responsibility of each one, solidarity is the appropriate bond with respect to the injured party, in order to achieve the effectiveness of the corresponding compensation, it is undoubtedly that this assessment cannot be made a priori, but based on the result yielded by the evidence, as it will be the evidence that indicates whether the damage produced is the result of the causal contribution of one or several persons. Therefore, to argue, as the appellant does, that the order established at the time the existence of solidarity between the co-defendants and Parcisa S.A. and Eurocontrol S.A. is, at least, inaccurate. In the case at hand, we would not be dealing with proper solidarity in which there is a pre-existing obligation of such a nature as occurs in those constituted contractually, but with improper solidarity that is the work of the judgment that declares and imposes it and that in no way would be prior and here the appealed resolution understood, in view of the evidence presented, that the defendants had no causal contribution to the harmful result for which compensation is sought, so the alleged contradiction is not appreciated. But furthermore, and as it is said to the contrary, the contradictory action was precisely from the appellant party itself, by opposing, first, the entry into the proceedings of Parcisa S.A. and Eurocontrol S.A. (pp. 2,562 to 2,566) and second, by acquiescing to the order that rejected such possibility.
El texto que proporcionaste es bastante extenso, pero aquí está una traducción al inglés:
FOURTH.- The appellant argues that the possible existence of hidden defects in the manufacture of the tanker truck cannot be opposed by the companies Inges S.A. and Net S.A. to exempt themselves from liability, since the former is a company specialized in the removal of toxic waste, for which reason it was contracted by Danalex S.A., if damage occurs during the obligation contracted, it must respond, applying the theory of risk, for «in eligendo» fault, by bringing to its facilities a tanker truck unsuitable for the activity for which it was intended. As for Net S.A., its liability would come by a double route, on the one hand, for being the owner of the tank, and on the other hand, for not having provided documentation on the inspection of the tank interiors. However, as previously stated, the judgment of the Supreme Court of 19-2-09, among others, states that for the imputation of liability, regardless of the criterion used (subjective or objective), it is an essential requirement to determine the causal link between the agent’s conduct and the production of the damage (judgments of 11-2-98, 3-6-00 and 19-10-07), which must be based on probative certainty that cannot be undermined by a possible application of the risk theory, the objectification of liability, or the reversal of the burden of proof (judgments of 17-12-88, 21-3-06, 30-5-08), adding that the proof of the causal link, a requirement not reached by the presumption inherent in the doctrine called the reversal of the burden of proof, is incumbent upon the plaintiff, who must prove the reality of the fact attributable to the defendant from which the obligation to repair the damage caused arises (judgments of 14-2-94 and 3-6-00, among many others). In this case, and given that the imputation revolves around the deficiencies of the tanker truck, it is worth noting the following: A) That the tanker was purchased by Net S.A. from Parcisa S.A. on August 30, 1995, that is, just two years before (document number nine of Net S.A.’s response to f. 1,196). B) That it passed the quality control and was approved by Eurocontrol S.A. on June 5, 1996, indicating that solutions and mixtures containing materials of one or more of the classes: 3, 4.1. 5.1, 6.1, 6.2, 8 and 9 could be transported (document number ten of Net S.A.’s response to ff. 1,197 to 1,213), among which class 8 includes nitric and sulfuric acid. C) That on June 18, 1997, the vehicle tanker truck with license plate V-3323-AM underwent the inspection provided for in marginal 10.282 of annex B of the TPC, meeting the conditions required to transport dangerous goods of classes 3, 4.1. 5.1, 6.1, 6.2, 8 and 9 nationally by road, so the appropriate authorization certificate for vehicles transporting dangerous goods was issued by the Territorial Service of Industry and Energy, dependent on the Ministry of Industry, Trade, and Tourism, valid until July 4, 1998, with Eurocontrol S.A. appearing as the inspecting entity (document number eleven of Net S.A.’s response to ff. 1,214 and 1,215 and number two of Inges S.A.’s response to ff. 1,361 and 1,362) and D) Its driver, Mr. Julián, had the appropriate qualification (document number three of Inges S.A.’s response to f. 1,363). In agreement with this, Mr. Rubén, in his report submitted as document number ten to the complaint (ff. 325 to 369), on which the plaintiff essentially relies, answered affirmatively to subquestion 1a) b) of Allianz, stating that the tanker truck owned by Net S.A. had been certified by Eurocontrol for the transport of dangerous and toxic goods authorized by the Ministry (ff. 1700 5 and 1,706). Likewise, Mr. Juan Carlos, legal representative of Eurocontrol S.A. in his witness statement, answered affirmatively to question 4, stating that documents numbers nine and ten, referred to earlier, are authentic and correspond to the inspections carried out by Eurocontrol S.A., at the time of the manufacture by Parcisa S.A. of a certified detachable tanker, built of carbon steel for Net S.A. and suitable for transporting solutions and mixtures of products or residues from classes 3, 4.1, 5.1, 6.1., 6.2, 8, and 9 of the nomenclature, including toxic or hazardous residues such as sulfuric or nitric acid (ff. 2,760 and 2,769). Therefore, the truck used had all the necessary authorizations, having passed the required inspections just two months before the accident, however, despite this, and as stated in the report of Valper S.L. Engineering and Appraisals (document number one of Allianz’s response to ff. 776 to 808), the nitric acid loaded in the tank oxidized the metals that make up its interior walls, as well as the elements attached to it (f. 795). This observation is maintained in the report of the Polytechnic University of Valencia, regarding the possible causes of the spill from the tank (document numbers of Allianz’s response to ff. 956 to 1,117), which establishes the following two conclusions: 1) The cause of the perforation can be attributed to the rapid corrosion caused in the material
(FE steel without interior coating) of the tank by contact with solutions of nitric acid (20-30% w/v) (f. 971) and 2) According to current regulations, the material used (FE steel without interior coating) in the construction of the tank is not suitable for transporting all materials of class 8, among which are solutions of nitric acid (f. 974). Likewise, the report of Valper S.L. Engineering and Appraisals establishes in its conclusions that: – Civil liability as the cause of the damage is the nature and characteristics of the material with which the tank was constructed and not the use that the carrier made of it. – If the defect is in the material with which the tank was constructed and it did not resist the attack of the acid, the responsibility should fall on the manufacturer who did not use a correct alloy in the composition of the tank and its fixed accessories. – The tank was approved for the transport of dangerous goods of class 8 (ADR) acids, despite being made of a metal that does not withstand the attack of an acid, so the approval and the inspection and testing performed for certification did not do their job correctly. – And that just two months before, the tank and the vehicle underwent an inspection by the approving company and passed that review valid until 4-7-98, giving the green light to a tank that was in no way configured to hold those products (f. 806). Witness Mr. Everardo (ff. 2,452 and 2,462 to 2,465), after ratifying said report, said when answering the follow-up questions asked by Inges S.A., that the tank was approved for class 8 of the A.D.R., so it could contain nitric acid with a concentration of 24% (item a), that the acid leak occurred because the material with which the tank and accessories were constructed was inadequate (item b) and that this circumstance could not be verified from the outside of the system (item c). Likewise, when asked by Plus Ultra, he reiterated that the cause of the accident and damages produced is the nature of the material with which the tank was constructed and not the use that the carrier made of it (item a), that the manufacturer of the tank did not use a correct alloy in its composition and that of its fixed accessories (item b) and that it is true that the tank was approved for the transport of dangerous goods of class 8 A.D.R. (item c). On the other hand, Mr. Marcos (ff. 2,452, 2,463 to 2,465, and 2,483), who also subscribed to the report of Valper S.L., after ratifying it, stated when answering the follow-up questions asked by Inges S.A., that he does remember that they were approved (item a), that he thinks that the acid leak occurred because the material with which the tank and accessories were constructed was inadequate, despite being approved (item b), that this circumstance could not be verified from the outside of the system (item c) and when asked by Plus Ultra, he said that the cause of the accident and damages produced is the nature of the material with which the tank was constructed and not the use that the carrier made of it (item a), that the manufacturer of the tank did not use a correct alloy in its composition and that of its fixed accessories and apparently this was the case, if one adheres to the conclusions of their report (item b), and that it is true the tank was approved for the transport of dangerous goods of class 8 A.D.R. (item c). What is really relevant is that both one and the other express that the inadequacy of the material used for the construction of the tank could not be verified from the outside and if this is the case, it can hardly be attributed to the defendant parties. The principle of liability for fault is basic in our positive legal system, being collected in article 1,902 of the Civil Code and its application generally requires the inescapable need for a culpable reproach to the eventual responsible for the harmful result, and although it is true that jurisprudence has evolved towards objectifying extra-contractual liability, it is also true that such a change has been made moderately, recommending a reversal of the burden of proof and accentuating the rigor of the diligence required, according to the circumstances of the case, so that prudence must be extreme to avoid damage, but without erecting risk as the sole basis for the obligation to compensate and without excluding, in any case and in any form, the classic principle of fault-based liability (judgments of the T.S. of 13-12-90, 5-2-91, 23-10-91, 24-1-92, 30-5-92, 12-11-93, 5-10-94, 14-11-94, 9-3-95, 9-6-95, 27-9-95, 23-12-95, 22-1-96, 8-10-96, 15-12-96, 4-2-97, 13-2-97, 28-4-97, 23-4-98, and 23-1-04 among others). In harmony with the above, it should be noted that in this matter, strict liability does not apply, but it is always necessary to start from a negligent conduct, to a greater or lesser extent, of the party against whom the action is brought (judgments of the T.S. of 25-5-94, 9-7-99, 16-11-99, 22-11-99, and 13-3-01, among others), which here, as previously explained, is not appreciated, and this must result in the rejection of the first ground of appeal.
FIFTH.- The second ground refers to the imposition of costs, to which it has been condemned, in application of the provisions of article 523 of the Code of Civil Procedure of 1.881, which establishes that in declaratory judgments, the costs of first instance will be imposed on the party whose claims have been totally rejected, unless the Judge, duly reasoning it, appreciates the concurrence of exceptional circumstances that justify their non-imposition. The appellant seeks to invoke this exception, referring to the complexity of the procedure, the extent of the material damages caused, the duration of the lawsuit that has lasted for eight years, as well as the acknowledgment made by the judgment of having proved the facts, their cause, and the amount of the material damages claimed.
As declared by the T.S. of 7-2-08, article 523, first paragraph of the Code of Civil Procedure adopts a system of attenuated objective defeat, in the sense that it authorizes the court judging in the first instance, or on appeal, not to apply the «victus victori» principle when there are exceptional circumstances that justify it, a concept that is indeterminate and polymorphic and whose appreciation corresponds to the instance body, provided it is motivated and has a minimum of legal solidity (judgments of the T.S. of 4-12-00 and 27-2-07). The jurisprudence has also stated that only those circumstances that must be considered as transcendent and that justify that in the specific case, the
defeated party does not pay the costs, to avoid unjustified formalism, must be taken into account (judgments of the T.S. of 28-11-90, 6-7-99, and 20-11-06). And it is not about considering this exception as a general principle of law or a pre-established dogmatic criterion, but it will be the concrete and specific circumstances of each case that will allow the court to determine whether, given its relevance, it is appropriate to apply it (judgments of the T.S. of 27-11-95 and 7-2-08), which, in this case, does not occur, so the ground of appeal must be rejected.
For the reasons given, it is concluded that the appeal must be dismissed, and this is how it is decreed and signed.