The responsibility of hoteliers in travel insurance information

It is common for us to encounter companies that, although their main business object is not the marketing of insurance, do offer insurance to cover the risks of services that are part of their main business purpose.

What happens most of the time? , that these companies, through their portal, become marketers of such insurance, such as travel insurance, insurance with standard policies, although they unconsciously perform a primary function since they are the ones who provide the necessary prior information and documentation to the end customer, they are not aware of the implications at the level of responsibility involved in providing such information poorly.

Act 26/2006 on the Mediation of Private Insurance and Reinsurance, establishes in general terms the obligation to provide “truthful and sufficient information in the promotion, offer and subscription of insurance contracts”.

Can we understand as poor information when, for example, the Hotel's website, or the hotel establishment that offers cancellation insurance for its reservations, the general conditions of the policy and only provides the summary certificate of the policy?

The preamble to the mediation law already establishes, as a fundamental aspect, the protection of customers who use the services of insurance brokers, establishing information obligations prior to signing the insurance contract to insurance intermediaries and the need to establish extrajudicial mechanisms for resolving conflicts between insurance intermediaries and their customers.

Article 55 of the Mediation Act establishes as violations: “... inaccurate or inadequate information for policyholders, policyholders or beneficiaries; repeated non-compliance with the duty of information prior to signing the contract as well as inaccurate information...”

What happens, therefore, when the information on the policy is poorly indicated by the travel agency, or the hotel establishment, would be responsible under the Insurance Mediation Act? The law answers this question in its art. 3 where it states that:

“Article 3. Exclusions.

Private insurance or reinsurance mediation activities shall not be considered:

1. c) Information provided as an accessory in the context of another professional activity, provided that this activity is not aimed at helping the client to conclude or sign an insurance or reinsurance contract, nor is it intended to manage claims by an insurance or reinsurance entity in a professional capacity, or to carry out expert assessment and claim settlement activities.”

Therefore, under the wording of the Insurance and Reinsurance Mediation Act, hoteliers would not have to assume the responsibility that corresponds to the mediator for truthful information, nor could they, in the absence of a contract between them, be considered external collaborators of insurance brokers, however, under consumer and user regulations, they must ensure and are responsible for delivering all insurance documentation to the user, and this in application of art. 19.2 with respect to business 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 carried out before, during or after a commercial transaction.”

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

“18.2 Without prejudice to the specific requirements established by regulations, all goods and services made available to consumers and users must incorporate, accompany or, in the last case, allow truthful, effective and sufficient information on their essential characteristics in a clear and understandable way.

Therefore, the content of art. 147 of the same regulation would apply, in relation to the general liability regime if there were damage or harm to the consumer in relation to the lack of the necessary documentation and therefore all the information he should know about the insurance policy purchased.

Paloma Aguilar (T&L Attorney)

Article published in the June edition From the monthly newspaper CEHAT