Pesification and non-life insurance

1.      Replacement value in US dollars

Tribunal B of the Commercial Court of Appeals, in “Randle, Julián c/ El Comercio Cía. de Seguros a Prima Fija” confirmed a first instance decision and maintained in US dollars the indemnification owed by the insurer. According to the decision the policy covered the replacement value of the insured automobile. The decision was based on sections 1197 and 1198 of the Civil Code and on section 2 of Decree No 320/2002 that provides that “... as for the equitable adjustment of the price, (...), the replacement value of the goods, assets or services with imported components has to be taken into account...”. In the file it had been determined that the replacement value of the automobile was in US dollars.

2.      Obligations in arrears prior to the pesification

Tribunal I of the Federal Civil and Commercial Court of Appeals, in “Zurich Iguazú Cía. de Seguros c/ Tora Transportes Industriales Ltda.” revoked a first instance decision that had established an indemnification in Argentine pesos. The Court of Appeals ordered that the indemnification had to be paid in US dollars because: (i) it was a claim where the plaintiff was trying to recover sums that it had paid out in US dollars; (ii) the damage had been assessed in US dollars in the court file and the defendant had not questioned the assessment; (iii) according to the Court of Appeals “...a debtor in arrears may not benefit from the passage of time to the detriment of its creditor; the situation of emergency that took place later may not lead to the dilution of the purchase power of the indemnification due ...”.

The same Tribunal issued another decision, in “Zurich Argentina Cía. de Seguros S.A. c/ Louzao S.A. s/ Faltante y/o avería de carga transp. terrestre”. In this case it was discussed whether the indemnification established in the first instance decision in US dollars had to be pesified. The Court understood that, considering that the indemnification was for damages to imported goods and that the credit was due before the pesification came into force, the indemnification had to be maintained in US dollars.

3.     Pesification of the deductible

The Second Civil and Commercial Court of Appeal, Room Second, of the city of La Plata, held that the deductible was to be nominated in Argentine pesos. In “Cuschinir, Mónica L. c/ EDELAP (Empresa de Energía de La Plata) s/ Indem. Daños y Perjuicios”, the Court of Appeals decided on one of the issues brought at the appellate level by the insurer of the defendant. The issue was that in the first instance decision the deductible had not been taken into account, that it had been agreed in US dollars and that it was not to be pesified. The Court of Appeals understood that the limit over which the insurer had to pay the indemnification had been fixed at the time of the loss. That limit had there been fixed in Argentine pesos at that time. Considering that the conversion into pesos had occurred at the time of the loss, before the general pesification brought about by the emergency regulations, these did not affect the amount of the deductible.