Bancassurance – Liability of a bank that was acting as agent of an insurer

In “Denevi, Sergio c/Banco Francés del Río de la Plata Sociedad Anónima s/ordinario” the plaintiff sought an indemnification from the bank equal to what he would have collected from the insurance company if the bank had not omitted to report the new domicile of the insured to the insurance company.

The plaintiff took out a home insurance policy by a telephone sale system implemented by the bank. The plaintiff’s home was burgled and therefore he tried to collect the indemnification from the insurance company. The insurance company denied liability for the claim on the basis that the insured had not report his new domicile where the burglary occurred.

The plaintiff pointed out that he had advised the bank of his new domicile and that proof of that was that the bank had sent a bank statement to the new domicile of the insured.

The bank answered that it was not proved that the insured had reported the new domicile. Additionally, according to the bank, the insured had consented to the terms of the insurance policy when he received a policy renewal where the property insured was the original, not the new house.

At both court instances it was considered proved that the client had reported his new domicile. It was held that the court could not demand stringent means of proof to evidence the insured’s phone call if the bank had implemented a phone system to facilitate clients’ operations. The decision pointed out that the system was trying to make the relation between the client and the bank easier, to avoid problems and to avoid wasting time. The decision also pointed out that when the system was advertised it included phrases that assured that with just one phone call one may have one’s house insured.

The Court of Appeals considered that the bank used a particular system to offer services that were additional to its specific activity to attract clients. Consequently, a client was not obliged to prove a fact that as a consequence of the system implemented by the bank should have been registered at the bank. If the bank did not register such information, the consequences should be on the bank.

The Court of Appeals based its decision on articles 7, 8, 10 bis and 37 of the Consumer Protection Law with respect to the importance accorded to the advertising of the conditions of the services offered and to who must bear the damages for the breach of such conditions.

Considering that it was proved that the bank had been informed of the insured’s new domicile, the Court of Appeals held that the bank as agent of the insurance company should have advised the insurance company of the information received. According to the decision of the Court of Appeals, the bank’s omission to advise the insurance company that the insured had moved was a breach of its duties as agent, for which the bank was liable.

The decision of the Court of Appeals has not analysed the potential liability of the insurance company based on the fact the bank was an agent of the insurance company. This issue was not raised by the insured inasmuch as he directed his claim only against the bank.