Professional Documents
Culture Documents
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c.
d.
e.
Where the insurer pays the insured for a loss or risk not covered by the
policy. (Pan Malayan Insurance Company v. CA, 184 SCRA 54)
In life insurance
For recovery of loss in excess of insurance coverage
CONSTRUCTION OF INSURANCE CONTRACT
The ambiguous terms are to be construed strictly against the insurer, and
liberally in favor of the insured. However, if the terms are clear, there is no
room for interpretation. (Calanoc vs. Court of Appeals, 98 Phil. 79)
III. DISTINGUISHING ELEMENTS OF AN INSURANCE CONTRACT
1. The insured possesses an insurable interest susceptible of pecuniary
estimation;
2. The insured is subject to a risk of loss through the destruction or
impairment of that interest by the happening of designated perils;
3. The insurer assumes that risk of loss;
4. Such assumption is part of a general scheme to distribute actual losses
among a large group or substantial number of persons bearing
somewhat similar risks; and
5. The insured makes a ratable contribution (premium) to a general
insurance fund.
A contract possessing only the first 3 elements above is a risk-shifting
device. If all the elements, it is a risk-distributing device. (The Insurance
Code of the Philippines Annotated, Hector de Leon, 2002 ed.)
IV. PERFECTION OF AN INSURANCE CONTRACT
An insurance contract is a consensual contract and is therefore perfected
the moment there is a meeting of minds with respect to the object and the
cause or consideration.
What is being followed in insurance contracts is what is known as the
cognition theory. Thus, an acceptance made by letter shall not bind the
person making the offer except from the time it came to his knowledge.
(Enriquez vs. Sun Life Assurance Co. of Canada, 41 Phil. 269)
Binding Receipt
A mere acknowledgment on behalf of the company that its branch office
had received from the applicant the insurance premium and had accepted
the application subject to processing by the head office.
Cover Note (Ad Interim)
A concise and temporary written contract issued to the insurer through its
duly authorized agent embodying the principal terms of an expected policy
of insurance.
Purpose: It is intended to give temporary insurance protection coverage to
the applicant pending the acceptance or rejection of his application.
Duration: Not exceeding 60 days unless a longer period is approved by
Insurance Commissioner (Sec. 52).
Riders
Printed stipulations usually attached to the policy because they constitute
additional stipulations between the parties. (Ang Giok Chip vs. Springfield,
56 Phil. 275)
In case of conflict between a rider and the printed stipulations in the
policy, the rider prevails, as being a more deliberate expression of the
agreement of the contracting parties. (C. Alvendia, The Law of Insurance in
the Philippines, 1968 ed.)
Clauses
An agreement between the insurer and the insured on certain matter
relating to the liability of the insurer in case of loss. (Prof. De Leon, p.188)
Endorsements
Any provision added to the contract altering its scope or application.
(Prof. De Leon, p.188)
POLICY OF INSURANCE
The written instrument in which a contract of insurance is set forth. (Sec.
49)
Contents: (Sec. 51)
1. Parties
2. Amount of insurance, except in open or running policies;
3. Rate of premium;
4. Property or life insured;
5. Interest of the insured in the property if he is not the absolute owner;
6. Risk insured against; and
7. Duration of the insurance.
Persons entitled to recover on the policy (sec. 53): The insurance
proceeds shall be applied exclusively to the proper interest of the person in
whose name or to whose benefit it is made, unless otherwise specified in
the policy.
Kinds:
1. OPEN POLICY value of thing insured is not agreed upon, but left to be
ascertained in case of loss. (Sec. 60)
The actual loss, as determined, will represent the total indemnity
due the insured from the insurer except only that the total indemnity
shall not exceed the face value of the policy. (Development Insurance
Corp. vs. IAC, 143 SCRA 62)
2. VALUED POLICY definite valuation of the property insured is agreed by
both parties, and written on the face of policy. (Sec. 61)
In the absence of fraud or mistake, the agreed valuation will be paid
in case of total loss of the property, unless the insurance is for a lower
amount.
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INSURABLE INTEREST IN
PROPERTY
Must exist at the time the policy
takes effect and when the loss
occurs
Limited to actual value of interest
in property insured.
An expectation of a benefit to be
derived
from
the
continued
existence of the property insured
must have a legal basis.
The
beneficiary
must
have
insurable interest over the thing
insured.
SPECIAL CASES
1. In case of a carrier or depositary
A carrier or depository of any kind has an insurable interest in a thing
held by him as such, to the extent of his liability but not to exceed the
value thereof (Sec. 15)
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3.
B. Pro rata:
1. When the insurance is for a definite period and the insured
surrenders his policy before the termination thereof;
Exceptions:
a. policy not made for a definite period of time
b. short period rate is agreed upon
c. life insurance policy
2. When there is over-insurance (Sec. 82);
Instances when premiums are not recoverable:
1. When the risk has already attached and the risk is entire and
indivisible.
2. In life insurance.
3. When the contract is rescindable or rendered void ab initio by the
fraud of the insured.
4. When the contract is illegal and the parties are in pari delicto.
PREMIUM
Levied
and
paid
anticipated losses.
ASSESSMENT
to
meet
Not a debt.
X. TRANSFER OF POLICY
1. Life Insurance
It can be transferred even without the consent of the insurer except when
there is a stipulation requiring the consent of the insurer before transfer.
(Sec. 181)
Reason: The policy does not represent a personal agreement between the
insured and the insurer.
2. Property insurance
It cannot be transferred without the consent of the insurer.
Reason: The insurer approved the policy based on the personal
qualification and the insurable interest of the insured.
3. Casualty insurance
It cannot be transferred without the consent of the insurer. (Paterson
cited in de Leon p. 82)
Reason: The moral hazards are as great as those of property insurance.
CHANE OF INTEREST IN THE THING INSURED
The mere (absolute) transfer of the thing insured does not transfer the
policy, but suspends it until the same person becomes the owner of both
the policy and the thing insured. (Sec. 58)
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EXCEPTIONS:
1. In life, health and accident insurance.(Sec. 20);
2. Change in interest in the thing insured after occurrence of an injury
which results in a loss. (Sec. 21);
3. Change in interest in one or more of several distinct things
separately insured by one policy. (Sec. 22);
4. Change of interest, by will or succession, on the death of the
insured. (Sec. 23);
5. Transfer of interest by one of several partners, joint owners, or
owners in common, who are jointly insured, to others. (Sec. 24);
6. When a policy is so framed that it will inure to the benefit of
whomsoever, during the continuance of the risk, may become the
owner of the interest insured. (Sec. 57);
7. When there is an express prohibition against alienation in the
policy, in case of alienation, the contract of insurance is not merely
suspended but avoided. (Art. 1306, NCC).
XI. ASCERTAINMENT AND CONTROL OF RISK AND LOSS
A.
1.
2.
3.
4.
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b.
Where the insured merely signed the application form and made the
agent of the insurer fill the same for him, it was held that by doing so, the
insured made the agent of the insurer his own agent and he was
responsible for his acts for that purpose. (Insular Life Assur. Co. vs.
Feliciano, 74 Phil. 469)
3. Warranties Statement or promise by the insured set forth in the
policy or by reference incorporated therein, the untruth or non-fulfillment
of which in any respect, and without reference to whether insurer was in
fact prejudiced by such untruth or non-fulfillment, renders the policy
voidable by the insurer.
Purpose: To eliminate potentially increasing hazards which may either be
due to the acts of the insured or to the change to the condition of the
property.
Kinds:
a. EXPRESS an agreement expressed in a policy whereby the insured
stipulates that certain facts relating to the risk are or shall be true, or
certain acts relating to the same subject have been or shall be done.
b. IMPLIED - it is deemed included in the contract although not expressly
mentioned. Example: In marine insurance, seaworthiness of the vessel.
Effects of breach of warranty:
a. Material
GENERAL RULE: Violation of material warranty or of a material provision
of a policy will entitle the other party to rescind the contract. (Sec. 74)
EXCEPTIONS:
a. Loss occurs before the time of performance of the warranty.
b. The performances becomes unlawful at the place of the contract.
c. Performance becomes impossible. (Sec. 73)
b. Immaterial (ex. Other insurance clause)
GENERAL RULE: It will not avoid the policy.
EXCEPTION: When the policy expressly provides or declares that a
violation thereof will avoid it. (Sec. 75)
WARRANTY
Part of the contract
Written on the policy, actually or by
reference
Presumed material
Must be strictly complied with
REPRESENTATION
Mere collateral inducement
May be written in the policy or may
be oral.
Must be proved to be material
Requires only substantial truth and
compliance
4.
Conditions Events signifying in its broadest sense either an
occurrence or a non-occurrence that alters the previously existing legal
relations of the parties to the contract. They may be conditions precedent
or conditions subsequent.
Effect of breach:
a. Condition precedent prevents the accrual of cause of action
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4. Grounds should have existed after the effectivity date of the policy.
XII. INCONTESTABILITY CLAUSE
Clause in life insurance policy that stipulates that the policy shall be
incontestable after a stated period.
Requisites:
1. Life insurance policy
2. Payable on the death of the insured
3. It has been in force during the lifetime of the insured for a period of at
least two years from the date of its issue or of its last reinstatement
Note: The period of 2 years may be shortened but it cannot be extended
by stipulation.
Incontestability only deprives the insurer of those defenses which arise
in connection with the formation and operation of the policy prior to loss.
(Prof. De Leon, p. 173 citing Wyatt and Wyatt, p. 878)
BARRED DEFENSES
OF THE INSURER
1. Policy is void ab initio
2. Policy is rescindable by
reason of the fraudulent
concealment
or
misrepresentation
of
the
insured or his agent
XIII.
A. OVER-INSURANCE results when the insured insures the same
property for an amount greater than the value of the property with the
same insurance company.
Effect in case of loss:
1. The insurer is bound only to pay to the extent of the real value of the
property lost;
2. The insured is entitled to recover the amount of premium
corresponding to the excess in value of the property;
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DOUBLE INSURANCE
Involves the same interest
Insurer remains in such capacity
Insured is the party in interest in
the 2 contracts
Subject of insurance is property
Insured has to give his consent
REINSURANCE
Involves different interest
Insurer becomes the insured in
relation to reinsurer
Original insured has no interest in the
reinsurance contract.
Subject of insurance is the original
insurers risk
Insureds consent not necessary
TERMS:
1. Reinsurance treaty Merely an agreement between two insurance
companies whereby one agrees to cede and the other to accept
reinsurance business pursuant to provisions specified in the treaty. (Prof.
De Leon, p. 306)
2. Automatic reinsurance The reinsured is bound to cede and the
reinsurer is obligated to accept a fixed share of the risk which has to be
reinsured under the contract. (Prof. De Leon, p. 305)
3. Facultative reinsurance There is no obligation to cede or accept
participation in the risk each party having a free choice. But once the share
is accepted, the obligation is absolute and the liability thereunder can be
discharged only by payment. (Equitable Ins. & Casualty Co. vs. Rural Ins. &
Surety Co., Inc. 4 SCRA 343)
4. Retrocession A transaction whereby the reinsurer in turn, passes to
another insurer a portion of the risk reinsured. It is really the reinsurance of
reinsurance. (Prof. De Leon, p. 305)
XIV.
A. LOSS, IN INSURANCE
Injury or damage sustained by the insured in consequence of the
happening of one or more of the accidents or misfortune against which the
insurer, in consideration of the premium, has undertaken to indemnify the
insured. (Bonifacio Bros. Inc. vs. Mora, 20 SCRA 261)
Loss for which insurer is liable
1. Loss the proximate cause of which
is the peril insured against (Sec. 84);
2. Loss the immediate cause of which
is the peril insured against except
where proximate cause is an excepted
peril;
3. Loss through negligence of insured
except
where
there
was
gross
NOTICE OF LOSS
In fire insurance
Required
Not required
B. CLAIMS SETTLEMENT
The indemnification of the loss of the insured.
TIME FOR PAYMENT OF CLAIMS
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LIFE POLICIES
a. Maturing upon the expiration
of the term The proceeds are
immediately payable to the insured,
unless they are made payable in
installments or as annuity, in which
case, the installments or annuities
shall be paid as they become due.
b. Maturing at the death of the
insured, occurring prior to the
expiration of the term stipulated
The proceeds are payable to the
beneficiaries within 60 days after
presentation and filing of proof of
death.
NON-LIFE POLICIES
The proceeds shall be paid within 30
days after the receipt by the insurer of
proof of loss, and ascertainment of the
loss or damage by agreement of the
parties or by arbitration but not later
than 90 days from such receipt of
proof of loss whether or not
ascertainment is had or made.
Coverage:
A.
1. Vessels, goods, freight, cargo, merchandise, profits, money, valuable
papers, bottomry and respondentia, and interest in respect to all risks
or perils of navigation;
2. Persons or property in connection with marine insurance;
3. Precious stones, jewels, jewelry and precious metals whether in the
course of transportation or otherwise; and
4. Bridges, tunnels, piers, docks and other aids to navigation and
transportation. (Sec. 99)
Cargo can be the subject of marine insurance, and once it is
entered into, the implied warranty of seaworthiness immediately
attaches to whoever is insuring the cargo, whether he be the
shipowner or not. (Roque v. IAC, 139 SCRA 596)
B. Marine Protection and Indemnity Insurance
Classes of inland marine insurance: (Prof. De Leon, p. 325)
1. Property in transit provides protection to property frequently
exposed to loss while it is transportation form one location to
another.
2. Bailee liability - insurance for those who have temporary custody of
the goods.
3. Fixed transportation property they are so insured because they
are held to be an essential part of the transportation system such
as bridges, tunnels, etc.
4. Floater provides insurance to follow the insured property
wherever it may be located, subject always to the territorial limits
of the contract.
Insurable interest:
A.
1.Shipowner
a. Over the vessel to the extent of its value, except that if
chartered, the insurance is only up to the amount not
recoverable from the charterer. (Sec. 100).
b. He also has an insurable interest on expected freightage.
(Sec. 103).
c. No insurable interest if he will be compensated by charterer
for the value of the vessel, in case of loss.
2. Cargo owner
Over the cargo and expected profits (Sec. 105).
3. Charterer
Over the amount he is liable to the shipowner, if the ship is lost or
damaged during the voyage (Sec. 106).
B.
In loans on bottomry and respondentia
Repayment of the loan is subject to the condition that the vessel or
goods, respectively, given as a security, shall arrive safely at the port of
destination.
1. Owner/Debtor
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Note: It is only perils of the sea which may be insured against unless perils
of the ship is covered by an all-risk policy.
SPECIAL MARINE INSURANCE CONTRACTS AND CLAUSES
A. All Risks Policy insurance against all causes of conceivable loss or
damage, except: 1) as otherwise excluded in the policy; or 2) due to fraud
or intentional misconduct on the part of the insured.
The insured has the initial burden of proving that the cargo was in good
condition when the policy attached and that the cargo was damaged when
unloaded from the vessel; thereafter, the burden then shifts to the insurer
to show the exception to the coverage. (Filipinas Merchants Insurance vs.
Court of Appeals, 179 SCRA 638)
B. Barratry Clause
A clause which provides that there can be no recovery on the policy in
case of any willful misconduct on the part of the master or crew in
pursuance of some unlawful or fraudulent purpose without consent of
owners, and to the prejudice of the owners interest. (Roque vs. IAC, 139
SCRA 596)
C. Inchamaree Clause
A clause which makes the insurer liable for loss or damage to the hull or
machinery arising from the:
1. Negligence of the captain, engineers, etc.
2. Explosions, breakage of shafts; and
3.
in
IMPLIED WARRANTIES
1. Seaworthiness of the ship at the inception of the insurance (Sec. 113);
2. Against improper deviation (Sec. 123, 124, 125);
3. Against illegal venture;
4. Warranty of neutrality: the ship will carry the requisite documents of
nationality or neutrality of the ship or cargo where such nationality or
neutrality is expressly warranted; (Sec. 120)
5. Presence of insurable interest.
While the payment by the insurer for the insured value of the lost cargo
operates as a waiver of the insurers right to enforce the term of the
implied warranty against the assured under the marine insurance policy,
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EXCEPTIONS:
1. In the case of a time policy, the ship must be seaworthy at the
commencement of every voyage she may undertake
2. In the case of cargo policy, each vessel upon which the cargo is
shipped or transshipped, must be seaworthy at the commencement of
each particular voyage
3. In the case of a voyage policy contemplating a voyage in different
stages, the ship must be seaworthy at the commencement of each
portion
Applicability of implied warranty of seaworthiness to cargo
owners: It becomes the obligation of a cargo owner to look for a reliable
common carrier, which keeps its vessels in seaworthy conditions. The
shipper may have no control over the vessel but he has control in the
choice of the common carrier that will transport his goods (Roque v. IAC,
139 SCRA 596).
Deviation
A departure from the course of the voyage insured, or an unreasonable
delay in pursuing the voyage or the commencement of an entirely different
voyage. (Sec.123)
Instances:
1.
Departure of vessel from the course of the sailing fixed by
mercantile usage
2. Departure of vessel from the most natural, direct and
advantageous route if not fixed by mercantile usage
3. Unreasonable delay in pursuing voyage
4. Commencement of an entirely different voyage (Secs. 121-123)
Kinds:
1. Proper a. When caused by circumstances outside the control of the ship captain or
ship owner;
b. When necessary to comply with a warranty or to avoid a peril;
c. When made in good faith to avoid a peril;
d.
When made in good faith to save human life or to relieve another vessel
in distress (Sec. 124)
Effect: In case of loss, the insurer is still liable.
2. Improper - Every deviation not specified in Sec. 124 (Sec. 125).
Effect: In case of loss or damage, the insurer is not liable. (Sec.
126)
LOSS
1. Total:
a. Actual i. Total destruction;
ii. Irretrievable loss by sinking;
iii. Damage rendering the thing valueless; or
iv. Total deprivation of owner of possession of thing insured. (Sec.
130)
b. Constructive i. Actual loss of more than of the value of the object;
ii. Damage reducing value by more than of the value of the
vessel and of cargo; and
iii. Expense of transshipment exceed of value of cargo. (Sec.
131, in relation to Sec. 139)
In case of constructive total loss, insured may:
1. Abandon goods or vessel to the insurer and claim for
whole insured value (Sec. 139), or
2. Without abandoning vessel, claim for partial actual loss.
(Sec. 155)
2. Partial: That which is not total (Sec. 128).
AVERAGE
Any extraordinary or accidental expense incurred during the voyage for
the preservation of the vessel, cargo, or both, and all damages to the
vessel and cargo from the time it is loaded and the voyage commenced
until it ends and the cargo unloaded.
GENERAL
Has inured to the common benefit and
profit of all persons interested in the
vessel and cargo
To be borne equally by all of the
interests concerned in the venture.
PARTICULAR
Has not inured to the common
benefit and profit of all persons
interested in the vessel and her
cargo.
To be borne alone by the owner of
the cargo or the vessel, as the
case may be.
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3.
1.
2.
REINSURANCE
Situation where the insurer
procures a 3rd party called the
reinsurer to insure him against
liability by reason of an original
insurance. Basically,
reinsurance is an insurance
against liability which the
original insurer may incur in
favor of the original insured.
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FRIENDLY FIRE
One that burns in a place where it
was intended to burn and ought to
be
Insurer is not liable
Measure of Indemnity
1. Open policy: only the expense necessary to replace the thing lost or
injured in the condition it was at the time of the injury
2. Valued policy: the parties are bound by the valuation, in the absence of
fraud or mistake
Note: It is very crucial to determine whether a marine vessel is covered by
a marine insurance or fire insurance. The determination is important for 2
reasons:
1. Rules on constructive total loss and abandonment applies only to
marine insurance;
2. Rule on co-insurance applies primarily to marine insurance;
3. Rule on co-insurance applies to fire insurance only if expressly
agreed upon. (Commercial Law Reviewer, Aguedo Agbayani, 1988
ed.)
ALTERATION AS A SPECIAL GROUND FOR RESCISSION BY INSURER
Requisites:
1. The use or condition of the thing is specifically limited or stipulated
in the policy;
2. Such use or condition as limited by the policy is altered;
3. The alteration is made without the consent of the insurer;
4. The alteration is made by means within the control of the insured;
5. The alteration increases the risk; (Sec. 168) and
6. There must be a violation of a policy provision. (Sec. 170)
Fall-of-building clause
A clause in a fire insurance policy that if the building or any part thereof
falls, except as a result of fire, all insurance by the policy shall immediately
cease.
Option to rebuild clause
A clause giving the insurer the option to reinstate or replace the property
damaged or destroyed or any part thereof, instead of paying the amount of
the loss or the damage.
The insurer, after electing to rebuild, cannot be compelled to perform
this undertaking by specific performance because this is an obligation to
do, not to give. Remedy: Art. 1167, NCC.
XVIII. CASUALTY OR ACCIDENT INSURANCE
Insurance covering loss or liability arising from accident or mishap,
excluding those falling under other types of insurance such as fire or
marine. (Sec. 174)
Classifications:
1. Insurance against specified perils which may affect the person and/or
property of the insured. (accident or health insurance)
Examples: personal accident, robbery/theft insurance
2. Insurance against specified perils which may give rise to liability on the
part of the insured for claims for injuries to or damage to property of
others. (third party liability insurance)
Insurable interest is based on the interest of the insured in the safety of
persons, and their property, who may maintain an action against him in
case of their injury or destruction, respectively.
Examples: workmens compensation, motor vehicle liability
In a third party liability (TPL) insurance contract, the insurer assumes the
obligation by paying the injured third party to whom the insured is liable.
Prior payment by the insured to the third person is not necessary in order
that the obligation may arise. The moment the insured becomes liable to
third persons, the insured acquires an interest in the insurance contract
which may be garnished like any other credit. (Perla Comapnia de Seguro,
Inc vs. Ramolete, 205 SCRA 487)
Aside from compulsory motor vehicle liability insurance, the Insurance
Code contains no other provisions applicable to casualty insurance.
Therefore, such casualty insurance are governed by the general provisions
applicable to all types of insurance, and outside of such statutory
provisions, the rights and obligations of the parties must be determined by
their contract, taking into consideration its purpose and always in
accordance with the general principles of insurance law.
In burglary, robbery and theft insurance, the opportunity to defraud the
insurer the moral hazard is so great that insurer have found it
necessary to fill up the policies with many restrictions designed to reduce
the hazard. Persons frequently excluded are those in the insureds service
and employment. The purpose of the exception is to guard against liability
should theft be committed by one having unrestricted access to the
property. (Fortune Insurance vs. CA, 244 SCRA 208)
Right of a third party injured to sue the insurer
1. Indemnity against liability A third party injured can directly sue the
insurer.
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PROPERTY INSURANCE
Principal contract
2 parties: insurer and insured
Contract of indemnity
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1. If committed after two years from the date of the policys issue or
its last reinstatement;
EXCEPTIONS:
1. Accidental killing
2. Self-defense
3. Insanity of the beneficiary at the time he killed the insured
If the premiums paid came from conjugal funds, the proceeds are
considered conjugal. If the beneficiary is other than the insureds estate,
the source of premiums would not be relevant. (Del Val v. Del Val, 29 Phil
534)
The measure of indemnity in life or health insurance policy is the sum
fixed in the policy except when a creditor insures the life of his debtor.
(Sec. 183)
IS THE CONSENT OF THE BENEFICIARY NECESSARY TO THE
ASSIGNMENT OF A LIFE INSURANCE POLICY?
It depends. If the designation of the beneficiary is irrevocable, the
beneficiarys consent is essential because of his vested right. If the
designation is revocable, the policy may be assigned without such consent
because the beneficiary only has a mere expectancy to the proceeds. (The
Insurance Code of the Philippines Annotated, Hector de Leon, 2002 ed.)
Cash Surrender Value
As applied to a life insurance policy, it is the amount the insured in case
of default, after the payment of at least 3 full annual premiums, is entitled
to receive if he surrenders the policy and releases his claims upon it.
LIFE INSURANCE
Contract of investment not of
indemnity
Valued policy
May be transferred or assigned to
any person even if he has no
insurable interest
Consent of insurer is not essential
to validity of assignment
Contingency that is contemplated
is a certain event, the only
uncertainty being the time when it
will take place
A long-term contract and cannot
be cancelled by the insurer
Beneficiary is under no obligation
to prove actual financial loss
FIRE INSURANCE
Contract of indemnity
Open or valued policy
The insurable interest of the
transferee or assignee is essential
Consent of insurer must be secured
in the absence of waiver
Contingency insured against may or
may not occur
May be cancelled by either party
and is usually for a term of one year
Insured is required to submit proof
of his actual pecuniary loss as a
condition precedent to collecting
the insurance.
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2. ADMINISTRATIVE/REGULATORY
a. Enforcement of insurance laws
b. Issuance, suspension or revocation of certificate of authority
c. Power to examine books and records, etc.
d. Rule-making authority
e. Punitive
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