Hoteliers' responsibility for travel insurance information

It is common to find companies that, although their main business purpose is not the commercialization of insurance, do offer insurance to cover the risks of the services that are part of their main business purpose.

What happens in most cases is that these companies, through their portal, become marketers of such insurance, such as travel insurance, for example, an insurance with standard policies, although, although they unconsciously perform an essential function since they are the ones who provide the prior information and the necessary documentation to the end client, they are not aware of the liability implications of providing such information inadequately.

Law 26/2006 on Private Insurance and Reinsurance Mediation establishes in general the obligation to offer "truthful and sufficient information in the promotion, offer and underwriting of insurance contracts".

Can we understand as deficient information when, for example, the general conditions of the policy are not provided from the Hotel's web page, or from the hotel establishment that offers cancellation insurance in its reservations, and they only deliver the summary certificate of the policy?

The preamble of the mediation law already establishes as a fundamental aspect, the protection of the clientele who resort to the services of insurance intermediaries, establishing information obligations prior to the subscription of the insurance contract to insurance intermediaries and the need to establish extrajudicial mechanisms for the resolution of conflicts between insurance intermediaries and their clientele.

Article 55 of the Mediation Law establishes as infringements: "........ inaccurate or inadequate information to policyholders, insured parties or beneficiaries; repeated failure to comply with the duty to provide information prior to the signing of the contract as well as inaccurate information....".

What happens, therefore, when the information on the policy is deficiently indicated by the travel agency, or would the hotel establishment be liable according to the Insurance Mediation Law? The law gives an answer to this question in its art. 3 where it states that:

"Article 3. Exclusions.

 Private insurance or reinsurance mediation activities are not considered to be insurance or reinsurance mediation activities:

1. c) Information provided on an ancillary basis in the context of another professional activity, provided that this activity is not intended to assist the client in concluding or underwriting an insurance or reinsurance contract, nor is it intended for the management of claims of an insurance or reinsurance entity on a professional basis, or for the performance of loss adjusting and loss adjusting activities."

Therefore, under the literal of the Law of Insurance and Reinsurance Mediation, hoteliers would not have to assume the responsibility that corresponds to the mediator regarding the truthful information, and neither, since there is no contract between them, could they be considered external collaborators of the insurance mediators, however, under the regulations of consumers and users they must ensure and are responsible for delivering all the insurance documentation to the user, and this in application of art. 19.2 with respect to commercial practices where it is established as "any act, omission, conduct, manifestation or commercial communication, including advertising and marketing, directly related to the promotion, sale or supply of goods or services, including real estate, as well as rights and obligations, regardless of whether it is carried out before, during or after a commercial transaction".

Established, therefore, the relationship of the sale of insurance to the final consumer, as the sale of a service, the content of art. 18 of the Royal Legislative Decree 1/2007, of November 16, which approves the revised text of the General Law for the Defense of Consumers and Users and other complementary laws, which establishes the characteristics in the provision of goods and services, thus indicating that:

"18.2 Without prejudice to the specific requirements to be established by regulation, all goods and services made available to consumers and users shall incorporate, accompany or, as a last resort, allow in a clear and understandable manner, truthful, effective and sufficient information on their essential characteristics.

Therefore, the contents of art. 147 of the same regulation would be applicable, in relation to the general liability regime if damage or harm were to be caused to the consumer in relation to the lack of the necessary documentation and therefore of all the information that he/she should know about the insurance policy purchased.

Paloma Aguilar (Lawyer T&L)

Article published in the June edition of the monthly newspaper CEHAT