Liability of credit and guarantee Insurer is subsidiary, and not joint and several.

Judgment number 626/2024 of the Spanish Supreme Court deals with a case involving a surety insurance contract and the question of the statute of limitations for actions arising therefrom. The ruling is of significant relevance in the interpretation of limitation periods and their interruption in the context of insurance contracts, especially with regard to the distinction between the insured and the insurer.

In 2018, Gamadés Española S.L. sued Zurich Insurance PLC for the payment of the amount of 1,710. 506.89 Euros in its capacity as surety insurer of Procom Martinsa and by virtue of a credit right derived from the provisions of the 1st Additional Provision of the Building Law (guarantee of amounts paid on account for the construction of housing), but the claim was dismissed at first instance and on appeal, considering that the action was time-barred under Article 23 of the Insurance Contract Law (LCS).

Article 23 of the LCS establishes a limitation period of two years for actions arising from the insurance contract. In this case, the Supreme Court ratified that the limitation period had started from the date of the credit assignment contract (8 October 2012) until the first out-of-court claim to the insurer (3 June 2015), with more than two years having elapsed. Thus, the Court concluded that the action was time-barred, as the claim was filed on 1 June 2018.

One of the central issues in the case was the interruption of the statute of limitations. Gamadés argued that the out-of-court claims to Procom Martinsa, made on 1 June 2015 and 16 June 2017, should interrupt the limitation period against Zurich. However, the Supreme Court ruled that the claims against the principal debtor (Procom) do not interrupt the limitation period against the insurer (Zurich), given that in surety insurance there is no “solidaridad” between the insured and the insurer, like in cases of civil liability insurances (STS 161/2019 of 14th March).

The jurisprudence of the Supreme Court clarifies that in surety insurances, the insurer does not directly indemnify the injured party but guarantees the policy holder’s performance in a subsidiary manner. Therefore, the direct action against the insurer cannot be interrupted by claims made by the policyholder.

In summary, the Supreme Court confirms that in order to interrupt the statute of limitations against an insurer, it is necessary to make a direct claim against the insurer within the legally established period, and claims made only against the tortfeasor are not sufficient. This ruling has important implications for insurance law practice and litigation strategy in similar cases.