TITLE 10 VARIABLE CONTRACTS ‘SEC, 238. (a) No insurance company authorized to transact Fes (2 in the Philippines shall issue, dol ‘sell or use any variable contract in the unless and until such company shall hav ‘Commissioner that its financial and general condition its methods of operations, including the issue and sal variable contracts, are not and will not be hazardou: the public or to its policy and contract owners. No fo (b) The term “variable contract” ‘or contract on either a group or on issued by an insurance company pro\ ‘connection with such contracts ‘shall have been placed and accounted for separately and apart from other investments and accounts. This contract be deemed to be a “security” or as defined in The Secures Ac as amended or nthe Investment Company Act" as amended, nor subject to regulation dotermining the qualifications of a company ‘eaueting author osu, delver, slo so vrable contracts, the Commissioner shall always consider the (1) The history, financial and it history, general condition of ‘he company: Provided, That such company, ifa foreign sn Sees. 239-242 ‘THE BUSINESS OF INSURANCE Tile 10— Vanable Contracts ‘company, must have deposited with the Commissioner for the ‘market value of Two million pesos (| (2) The character, responsi officers and directors of the company; and (3) The law and regulation under which the ‘company is authorized in the state of domicile to Issue ‘such contracts. (d) fatter notice and hearing, the Commi find that the company is qualified to iss ‘or use variable contracts in accordance and the regulations and rules issued thereunder, the corresponding order of authorization shall be decision or order denying authority to issue, or use variable contracts shall clearly and dist the reasons and grounds on which it is based. ‘SEC, 239, Any insurance company issuing variable contracts pursuant to this Code may in its discretion issue contracts providing a combination of fixed amount and variable amount of benefits and for option lump-sum payment of benefits. Every variable contract form delivered or ivery in the Philippines, and every certificate and endorseme connection therewith, shall be subject to the prior approval stration of benefits payable under any W not include or involve projections of rent experience into the future and shall ‘conform with the rules and regulations promulgated by the Commissioner. Variable contracts may be issued on tho sis, provided that the pertinent provisions: ‘and of the rules and regulations of the594 THEINSURANCE CODE OF TH ble contracts are complied joverning V Commissioner g ec: with in connection with SEC. 243, Every fe insurance company Sener tee 248, tolssue, under the provision onneetion with the same, ‘accounts to be known as All amounts received by the separate variable accounts. Al ance Eras ion with company coe tne tereot, to be allocated or applied accounts of law to the contrary, t variable account shi arising out of any ot! conduct but shall be thereto. Except as otherwise contract, no sale, exchange or ‘may be made by a company, between any of its separate accounts or between any other investment account and ‘one or more of its separate accounts, unless in the case of a transfer ‘separate account, such transfer is made ish the account or to support the operation with respect to the separate account to is made, or in case of a transfer from ite account, such trar F would not cause the 19 assets of the accc Cece become less than the les with respect to such transfer, whether it Iam into or from a the Commissioner. ther transfers among eINeSANNOTATED —— Sex.243 Sen 24246 ‘THE BUSINESS OF INSURANCE “ae 10—Varable Contracts Such accounts, if, in his opinion, such transfers would ot be inequitable. All amounts and assets allocated to any such separate variable account shall be owned by the ‘company and with respect to the same company shall not be nor hold itself out to be a trustee. SEC. 244. Any insurance company which has established one or more separate variable accounts Pursuant to the preceding section may invest any reinvest all or any part of the assets allocated to any such account in the securities and investments authorized by Sections 204, 206, 207, and 208 for any of the funds of an insurance company in such amount or amounts as may be approved located in the Philippines, traded in the “over-the-cou rket” as defined by the Commissioner and as to which market quotations have ailable: Provided, however, invest in excess of ten percent pure! Inurr sal seagate 10 he bree the hase is not made through a vite account for which the Investment is made. to such assets, orf there contract t ih auch manner as may be prescribed by te rules and regulations of the Commissioner. ve liability for variable contracts shane ishedinaccordancawithacturalprocedures soa he variable nature ofthe benefits provided, “approved by the Commissioner.-qHEMiSURANCE CODE OF THEPHILIFPINES ANNOTATED S03. 236-246 36 rance defined. Teese rance has been defined a6 that frm of te it * which the benefits, payable upon insurance oor te premiums vary with the investment performance ofthe assets derived ftom thesaleof those contract, ‘As defined, such insurance must be distinguished from life insurance contracts with benefits dependent on some inde, for example, the Consumer Price Index (CP?) (see “Variable Insurance,” by Harry Walker and Jerome 8. Golden, in LHI, p. 27) Fundamental idea behind variable life contracts. Variable life insurance is a new product developed in the insurance business, designed to combine the traditional protection and savings functions of life ii the ‘growth potential associated with equities, particularly common stock. (Ibid,) It evolved in response to a number of market forces including income levels, heightened awareness of the need to protect purchasing power in the face of inflation, and greater consumer awareness of alternative forms of personal savings and investment. (Ibid., p. 225.) The fundamental idea is to change the tradit value-life insurance, where the insurer pays a stated face value. The problem is that the specified face value does not attempt to guarantee any particular purchasing power for the consumer. In an era of continuing inflation, this is a real disadvantage to the life insurance beneficiary. To offset this disadvantage, the variable life contract bases its reserves and policy amount payable on investments primarily "A popular yardstick that both econo and fall the cot of living ss and housewives, ‘The experience of 1969 in the Secs 208246 ‘THE BUSINESS OF SUR THe 10 Vereen - devoted common stots. The theory is that as inflation raises val ividends, the values paid under the contract will also’ increase hopefully as muchas purchasing power ith payments are usually guaranteed not company’s general account and a separate account. There probably will be a continuous flow of transactions between the two accounts. For example, gross premiums under a VLI contract could be credited to the general account, and thus net premiums would have to be transferred from the general to the separate account. to the addition, the insurer is policyowner a statement ofthe investments held in the separate account. (3) Payment of clair involve additional cal ‘ms, — The payment of death benefits may culations for VLI depending upon howINOTATED Secs, ve sensu ance cong oF THERAPIES 238245 expected that death benefits st annually, with some often death benefit is varied. It's under most designs at lea ca ely i oe th benefits Wally toreflect the most current vt avestment anti-selection against — Contract changes involving latement and char he variable Nature of the flect agent than if the original policy Life Insurance,” supra, pp. 234-235.) —000— TITLE 11 CLAIMS SETTLEMENT (2) No insurance company doing business ines shall refuse, without just cause, to pay performed with such frequency as to ind ‘general business practice, shall constit ir business stitute unfair claim settlement (1) Knowingly misrepresenting to claimants perti- ent facts or policy provisions relating to coverage at ue it communications with respect to its policies; (4) Not attempting faith to effectuate prompt, fair and e settlement of claims 8 become reasonably clear; or Compelling policyholders to institute suits to amounts due under its policies by offering without justifiable reason substantially less than the amounts ultimately recovered in suits brought by them. insurance company, 5 ‘experience with other insurance companies writing i 94a) THEINSURANCE CODE OF THEPHILIPPINES ANNOTATED S6.247 hhall be admissible in evidence agetiisuatie or judicial proceeding brought und administrative or judi section. - it is found, after notice and an opportunity to ve (eard, that an insurance company has violated this tection, cach instance of noncompliance with paragraph {a)may be treated as aseparate violation ofthis section and Shall be considered sufficient cause for the suspension or wocation of the company's certificate of authority. Unfair claims settlement practices. Claims settlement is the indemnification of the loss (see Sec. 186.) suffered by the insured. The claimant may be the insured or reinsured, the insurer who is entitled to subrogation, or a third party who has a claim against the insured.’ Section 247 enumerates the grounds which shall be considered as sufficient cause of the suspension or revocation of an insurance company's certificate of authority. It is designed to eliminate unfair claim settlement practices. ILLUSTRATIVE CASES: 1. Repair done by insured after insurer filed to take action despite notice of acident. Fac: On its way to Baguio, a spark coming from the ‘generator caught a fuel line, causing fire inside engine of D's While whichis covered by a comprehensive motor policy. R lavelving Pre-need pl the amount ef benefits d final and execatory, Sec. 247 observe a certain measure of consideration THE BUSINESS OF INSURANCE @ —Chims Setement (insurer) contended that there was violat i I Li et there was violation ofthe “Authorized without erecta otce of the accident was sent to R ‘out the latter taking any action thus compen the vehicle towed to Manila and repaired TBD MEY Issue: Is D entitled pce to indemnity under the foregoing Hela: Yes.D, under the situation, acted ineviden with no other purpose bt to expedite the woah preert further inconvenience, it appearing ‘consequential loss is excepted from the to pay the amount of repair and tow the policy, plus attomey's fees. (Phil. Episcopal Church vs. The rance Co,Ltd, .C. Case No. 40, March 24,1977.) ‘A claim was fled by D (insured) for damage caused ick covered by a commercial vehicle comprehensive policy with R (insurer) which assigned its adjuster to investigate and inspect the dam: le. Anestimate of damage by C. Machineries, Inc. was submitted by the adjuster. Because R did not settle the claim despite the adjuster’s report, D initiated the repair of the truck with C. Machineries, Ine. Is D entitled to be indemnified for the damages his vehicle? Held: Yes. Same ruling as in preceding case, (J. Guanco vs. Summit Guaranty & Insurance Co, nc, LC. Case No, 115, May 31, 1977) ca Insurer's obligation to respect insured’s decision to compromise third party claim. Where a policy gives the insurer control of the decision to litigate it, the insurer nevertheless is required to 3¢ interest of the-THEINSURANCE CODE OF THE PHILIPPINES ANNOTATED Sec. 247 on ii , itis usually in the interest of the ee eae eset. Therulehas come toe generally accepted that while the express terms ofthe policy do ot impose on the insurer the duty to settle the claim at all costs, there isan implied duty on his past to give due consideration to the interest of the insured in its exercise of the option to reject a compromise settlement and proceed with litigation. In insurance contracts, the law requires strict observance of the standards of good faith and fair dealing on the part ofthe insurer. (Yap vs. Perla Compatia de Seguros, Inc., LC. Case No. 108, Nov. 26, 1976.) EXAMPLE: Ina suit for personal injuries filed by T against D (insured), Doffred to sete fora sum tat was within the policy limits of P10,000. R {g0 with the trial ofthe case. T obtained a verdict for P15,000. Is R also liable forthe P5,000, the amount in excess of the policy limits? It depends. If R acted honestly under the circumstances, the insurer has the right to refuse an offer of settlement which it believes to be unreasonable or excessive. If,on the other hand, the verdict resulted from R’s negligence or bad faith, R shall be liable for the amount of P5,000. ILLUSTRATIVE CASE: ___ Insured setted criminal case against him without notice to the insurer. still in force. R opted to proceed with the case notwithtasdin the request of D that it be settled. When the te fore arraignment came, D failed to appear; hence, he was arrested id Fie ceinedin ja, and was forced to secure another bond for ise 20H ‘THE BUSINESS OF INSURANCE. 3 ‘Tie 11 — Claims Settlement ippursement of PSO0 onthe ground that D settled the case ithout first obtaining R's consent in violation of policy provisions, [ssue: Is D entitled to reimbursement? Held: Yes. n the instant case, the case against the insured was not a civil suit; it was a criminal prosecution that he had to face. The risks to be assumed by D and R were, therefore, «equal, further considering that the amount involved is small, By proceeding with the criminal case, R exhibited lack of consideration for D who was then facing the prospect of possible criminal conviction, Moreover, there was no showing that R exerted any effort to ascertain the faimess of the third party claim as to justity settlement. There was only outright rejection ofD's demand that the case be settled, This alone shows R’s lack of consideration the interest of D. (Yap vs. Perla Comparia be paid immediately upon ‘such proceeds are made payal annuity, in which case the it the proceeds thereof shall be paid within sixty (60) days, presentation of the claim and filing of the proof of death of e claim within the the delay at the rate of twice the Monetary Board, unless such fai based on the ground that the cl roceeds of the policy maturing by the death of the uaa apt bvalay shal olde te discounted value of all premiums paid In advance of their due dates, but are not due and payable at maturity. Life insurance losses. (1) Definiteness of death. usually is taken care of by the — The settlement of life claims life insurance agent. Unlike othersnip ssuRaNCeCODEOFTHEPHILPPINES ANNOTATED Se 2g oo : snife insurance, there is no specialized claim anal ae 323.324) The definiteness of the death perl adjuster (ee ee nsurance payable makes it possible for the and the amc ‘om the insurer. In the unusual a range for the payment ge ar ein questioned, te legal department and dlaim department of the insurer company provide the necessary legal advice. (2) Proofof death. — Technically the life insurance policy does not provide for payment upon death but rather for payment upon submission of proof of death to the insurer, This notice may be given by a beneficiary or the legal representative of the insured, (8) Nature of claim, —Since life insurance in its simplest form pays a lump sum (called a “face value”) upon the death of the insured, money claims are death claims. (4) Income benefit provision. — Endowment contracts and annuities may provide an income benefit upon the survival of the insured to a fixed date or age. The choice as to the method of payment may be made by the insured or by the bene! insured has not made a choice. (D.L. Bickelhaupt, op. Time for payment of claims in life Policies. It depends. (1) In policies maturing upon the expi c ‘Piration of the term set = therein, the proceeds are immediately payable to the insured, unless they are made payable in installments or as annuity, in which case, the installment: i ie nee 's or annuities shall be paid Sixty-day period procedural in nature, ‘When th obligation of he 2, NatHS upon the death of the insured, the insurer to pay arises as, of that date. The 60- sec 249 SINESS OF INSURANCE os Clams Settlement day period fixed by law wi It is the happeni that renders the ‘The death of the insured may be sufficiently established by the death certificate issued by the Civil Registrar of the place where the insured died. (Londres vs. Natio Philippines, 94 Phil. 627 [1954},) The insurer's an insurer may insurance policy, paid within thirty (30) days after roof of loss is received by the insurer and ascertainment of the loss or damage is made either by agreement between the insured and the insurer or by arbitration; but days after such receipt then the loss or damage days after such receipt. ‘or failure to pay the ‘or damage within the time prescribed herein will entitle the ‘assured to collect interest on the proceeds of the policy {or the duration of the delay atthe rate of twice the ceiling prescribed by the Monetary Board, unless such failure Or refusal to pay is based on the ground that the claim is fraudulent.IPPINESANNOTATED ——Sec.24 cope OF THE PHIL (0s THEINSURANCE: eae va insured, — The fire insurance contract ligations fi it impresdetrite obligations upon the insured immediately upon, the occurrence of 10ss. f (a) Two ofthese, the requirement ae ebiigaton to file a proof of las, are cond the fnsured must comply before there is any part ofthe insurer. (see Secs. 85-91.) a eune re, after a fire, the insured is required to do ng ramceale to prevent further damage to the property insured. An insured who ailsto protect his property adequately from further loss after ‘cannot collect for the additional loss thus jioned. (2) Options of settlement by the insurer. — The fire insurance contract usually provides for two (2) options of settlement by the insurer: the payment of damages for the loss; or the restoration ofthe subject matter of the insurance to its former condition. (see ‘Sec, 174.) If the insurer elects to rebuild, the amount of damage recoverable for abreach isnot thereafter limited to the amount of insurance. The option to repair or replace involves the insurer in the business of building construction and it is very uncommon to ‘exercise the option. When at all possible, insurers prefer to settle on by a cash payment. (see D.L. Bickelhaupt, op. cit., pp- — While the insurer, and the ater, have the right to reject y tory, they may not set up for themselves an arbitrary standard of satisfaction. Substantial il seonellnee with the requirements will always be deemed proofs of loss if they are unsa the nature of an admission which affords the grea should not be perfunctoril as a worthless price of SCRA 227 [1987].) (2) Claim for personal injuries. — Determining an adequate amount to compensate for a personal injury is not a simple process. In no other area of claim settlement are there so many ‘uncertain factors where the measure of damages will, to a large ies and prejudices that are different with more serious injuries. When the injured party lives and suffers permanent injury, the problem of damages becomes increasingly complex. Direct property damage claim. — The extent of a claim damages to property is measured by the amount of the loss occasioned the property owner. The measure of loss is the difference in value between the property undamaged and the property in its damaged condition. cost of repair may serve as a measure of damage, gal tion to restore a property to its original if the cost for repair exceeds the value of before the d For example, an old automobi demotished, fe worth a claim only forthe value ofthe car before the accident less its salvage value.TUPPINESANNOTATED Sec a4) cope oF THE PHN as THEINSURANCE claim. — One point in respect to (4) Property dari ity claims must be differentiated from property damage liabiity °'fire claim, for example, usually, Sect Ts insurance dit cage fo the Property ly paymen’ age is purchased t0 provide for the ae of the loss of use of the property, such as loss of profits or rents. i iability claims, however, the loss In propery damage IA ot ofa similar automobi, Fe mates, would be included in a liability claim against the person causing damage serious enough to prevent ils use for a Tength of time. (D.L. Bickelhaupt, op. cit, pp. 187-189.) Time for payment of claims. in non-life policies. Sections 249 refers to insurance policies other than life, ‘The proceeds shall be paid within 30 days after 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. In the case of Compulsory Motor Vehicle Liability Insurance, the rule is different. (see Sec. 398, par. 2.) Is fraudulent. Under policies, particularly against fire, which contain a to the effect that all benefits under the policy shall be ‘ i the claim for loss be in any respect fraudulent, or if any false declaration be made by the insured or his agent to obtain any benefit under the policy, a serious discrepancy between the as to indicate willy and intentionally Cea Phil. 212 [1927], ‘i false statements were made mally. (Tan Ti vs, Sun Life Ins. Office, 51 The same is true of ac existing at ‘or loss of articles and goods not nt the time ofthe fre. (Sharulf& Co. ve, Baloie rire Ins Sec. 249 THE BUSINESS Te NSURANCE o ‘Tuason vs. North Chin East Furnita 1a Insurance Co., South British Insurance Co., 41 'w Union é Rock Insurance Co., 48 [1920]; Acriche vs. La ‘The burden of proving fraud rests on the insurer, The falsity of invoices submitted by the insu actual existence atthe burned premises of the stocks mentored in the insured’s inventory is evidence of a fraudulent claim and will avoid the insurer's liability. The insured’s inventory of stocks ing on the insurer where it was prepared without the intervention. (Yu Ban Chuan vs. Fieldmen’s Insurance 14 SCRA 491 [1965].) Effect of false statements innocently made. ‘The rights of the insured are, however, in no way prejudiced false statements inadvertently and innocently made in proofs of loss despite a clause in the policy providing for feiture in the event of any false swearing; and although false statements are as to a material matter to the insurer’s , the insured can recover for his los. ‘This rulehas been applied to the overvaluation of the property insured; a misstatement regarding the details of an accident or in reference to the cause of loss, as for example, a statement that goods were destroyed by fire, when, in fact, most of them were destroyed by water; a misstatement regarding the insured’s title or ownership of the insured property; and t sion in the proofs of property not destroyed or not insured. (29 Am. Jur. 850- 851.) There may be honest mistake in valuation without fraud being involved. Numerical precision should not be expected. (Le Bog & Co. vs. Hanover Fire Ins. Co. ofthe City of New York, 1 SCRA 599 [1961].)NOTATED Se. a te PHILIPPINES AN! 9 “THEINSURANCE CODE: ao bitration, ay action can be brought 5 f the loss the companys inthe couse ofthe see be deemed 1 have waived the in any case refuse th reference to arbitration, and suit upon onaition pense Cong vs Royal Exchange Assur. Co, 8 Phi (3) Where arbitration required only when there is dispute. — Where there is an agreement to a and one party puts up a claim which the other disput need to arbitrate is imperative. (Mindanao Portland Cement Corp. vs. Mc Donough Construction Co,, 19 SCRA 814 [1967]; General Insurance & inion Insurance Society of Canton, Lts., 179 Reference to arbitration was held Not necessary before Court where under the reinsurance agreement ae cop inits. its clear that the requirement sion to arbitrators, the matter of the losses ee a of the parties thereto arises only if and ines disputed by one ofthe parties, and there i no —— a eet {he insured and the insurer cans expla ee oy Commie tp dispute between the parties because on the stipulation of facts, the defendant (reinsurer) has admitted that plaintiff (reinsured), has ee liability to the insured, and has ee admitted ity as insurer under the agreement to pay the plaintiff tional shares, the amounts of which ate not (Coquia vs, Fieldmen’s Insurance Co, Inc, 26 SCRA 178 [ (4) Where settlement by arbitration not incoked, — A clause in a policy concerning reference of dispute to an arbitrator, as a condition precedent toa right of action or suit upon the policy, was deemed waived where none of the parties to the contract invoked the same, or made any reference to arbitration during the negotiations preceding the institution of the action against the insurer; and in fact, counsel for both parties stipulated in the trial court that none of them had, at any time during said negotiations, even suggested the settlement of the issue between them by arbitration, as provided in said clause. (6) Where insured voluntarily subr rbitration. — On the other hand, where the insured commenced an action to recover an insurance policy and then voluntarily agrees to an arbitration and subr topped and bound by the award. (Chan Linte vs. Law Union & Rock Ins. Co,, 42 Phil. 548 [1921].) As a general rule, the parties should share in the burden of the cost of arbitration, on a pro rata basis. (see Keppel Cebu Shipyard, Inc. vs. Pioneer Insurance & Surety Corp, 601 SCRA 96 [2009].) Right of insurer to subrogation. (1) Subrog normal incident of indenmity insurance. — sutvogaton is the right of the insurer, in certain cases, to take over the rights of the insured against the party responsible for his injury, loss or damage. Although many policies including ST cs ct coed Sera Sma tan ne eae ar etn 1¢ insurer may recover from the guilty party because it sol ts menses ga nea 75 isinINOTATED See. 249 polices in the sada of \he insurer in this respect, the and thus determine the HBT”. the legal effect of payment sa gr eg” AE es ines 1 ty tat ec in the oly (44 Am. Jur. 2d, exp! 746.) i surance company pays for the ee a equitable assignment to the mace prety and all the remedies wh eas recovery thereof. is ndent may hae forth ne any py of contacto upon ‘woitten assignment of claim. The loss inthe first instance is that of imburseme the loss of the insurer who is entitl to any right of action which the insured may have again third person whose negligence or wrongful act caused the loss covered by the policy It contemplates full substitution such that it places the party subrogated in the shoes of the creditor, and may use all means and remedies the creditor could employ to 3 iple of subrogation does not app! accident policies as they are not contracts of indemnity. (2) Limit of recovery. — A subrogee cannot succeed to a right ight ok poco iby eee ‘The rights to which the subrogee isare the same as, but not, 5 Sacegus te the sameas, but nat greater than the subrogor. Thus case of loss or or restricted by See. 249 ‘THE BUSINESS OF INSURANCE Ld ‘Tile 1! —Ghaims Settlement the provisions in the bill of lading issued by the common carrier, a suit by the insurer as subrogee necessarily is subject to like limitations and restrictions. (St. Paul Fire & Marine Ins. Co. vs. Macondray & C 70 SCRA 122 [1976],) The rule does not where it would be “unfair and inequitable” to limit the ptihe wrongdoer tothe amount stipulated between him ILLUSTRATIVE CASE: Petitioner which was found responsible forthe los of the insured essl sought fo Tinits is ibility to the insure, subrogee of the insured, oan amount very much lower than the amount paid for the insurer tensed elated Facts: Petitioner CSEW is a domestic corporation engaj nes of dy-dcking and reparngll marine ees while private respondent PGA is also a domestic corporation engaged in the non-life insurance business. WLI (plaintiff in the trial court) is the owner of a passenger cargo vessel (M/V Manila City) which caught fire and sank during the dry- docking and repair, resulting in its eventual total loss, which, according to WLI found both by the trial court and Court of Appeals, was caused by CSEW’S negligence and lack of care, CSEW argues, among others, that even assuming that it was negligent and, therefore, liable to WLIby stipulation in Contract or Work Order its liability i limited to P1 million only and PGA should only be entitled to collect the sum stipulated ‘contract, although the total loss suffered by WLI and of adhesion. — “Although in this ‘adhesion have been consistently as binding a8 an ordinary contract, theLLPPINES ANNOTATED See gp (cove oF THE Pil 14 TRIEINSURANCE: when reliance on such contracts ‘here the facts and circumstances fipulations be disregarded. Thus, in and aj of the stipulation negligence to One Million of Cts and cICUMStances Vis-2-nis be enforced should be Court recognizes instances Cnnot be favored expecially ruling on the Titing the esos (P1,000,000) only, A ‘the nature of the provision sougt A considered, bearing in mind play.” the principles of equity and fair for P45,000,000. To determine Eee yt inquiry. Uj thorough investi faa, Uo ee ‘and repair. The evaluation ofthe adjuster also reported ‘a constructive total loss. The said claim of WLI, was then found to be valid and compensable such that PGA paid the latter was price of the total value of its insure ir and inequitable itioner to P1,000,000 or the fact thatthe tot fered by by PGA amounted to P45,000,000 would. of a degree of diligence short of whe because, then, it would not be difficul liability by the simple expedient of much ower thn the actual damage hu Shipyard and Engineering Wor S05 SCRA ns Mos rs suffered by WLL” William Lines, Loan repayable from coll lectic Payment of insurance, ae = _ tiseutmary {or insurers, in order to save the right to theit Promptly place them in funds, so that their ‘Secs. 250251 aa Tre SINESS OF INSURANCE as ite 11 Chane ‘ business might be continued their assureds the amountof theron ease t National Bank of Ottawa v. Lloyd's of London, NEE 24 22,226 ced inGaltrays Maersk ine, 11 SCRA 251 in a suit by the insured against the party for the loss, recovery should not be denied sured received such loan from does not constitute insurer is not, therefore, subrogated to the who is not divested of his right to file the permit the insured to recover, subject to his obl insurer, would avoid unnecessary delay and multipli in the attainment of the same result, namely, the enforcer the undisputed liability on the part of one of the partes. Ibid.) SEC. 250. In case of any litigation for the enforcement ‘of any policy or contract of insurance, it shall be the duty ‘of the Commissioner or the Court, as the case may be, to, a finding as to whether the payment of the clait fees and other expenses incurred by the insured person by reason of such unreasonable denial or withholding of payment plus interest of twice the prescribed by the Monetary Board of the amount claim due the insured, from the date following the time prescribed in until any such cl Shall be considered prima facie evidence of unreasonable delay in payment. SEC. 251. It is unlawful to: cause to be presented any fraudulent i of a loss under a contract of (a) Present claim for the payment insurance; andci icecoDOFTHEPHILIPINES ANNOTATED Secs. 235, a6 INSURANCE COPE make or subscribe any ise the same, oF to allow it uch claim. fb) Fraudulently prepare: wit rt prose to be presented in support of any 5 son who violates this section s! (A) Finding of unreasonable delay. — Under Sections 248, 249, ‘and 250, the Commissioner or the Court must still make a finding that the payment of the claim has been unreasonably denied or withheld before the insured shall be entitled to collect damages ‘and the interest provided which has been increased from 12% to 24%, They apply only when the Commissioner or the Court finds an unreasonable delay or refusal in the payment of the cl (see Tio Khe Chio vs. Court of Appeals, 202 SCRA the absence of such express finding, the judgment only the legal rate of 12% for the delay in the payme: claim. (2) Good faith of insurer in contesting claim. — It is generally agreed that: st may, in good faith and honesty, entertain a difference of opinion as to its li the statutory penalty for vexatious refusal of an insurer to pay a claim should not be imposed unless the evidence and the circumstances show that such refusal was willful and without reasonable cause as the facts appear toa reasonable and prudent man. (Rizal Commercial Banking Corp. vs. Court of Appeals, 289 SCRA 292 [1998]; see atom atanee Corporation vs. Court of Appeals, 185 SCRA oo Thus, _=— fact that the evidence justified the laim does not necessarily mean that the teeing Payment, acted without justification. Inc. vs. Continental Insurance Co., 59 (b) WI ii . at Mears delay in payment was due to the insurer conducted to ascertain the truth of ‘THE BUSINESS OF INSURANCE or Tile 1 — Chime Settlement ir where the insurer was faced by the problem of d who was the actual maeaes of the insurance pol ‘olved, aggravated by the claim of various creditors who wanted to partake of the insurance proceeds, not to mention the endorsement by the insured of the policies to a bank to which he mortgaged the properties covered by the insurance, it was held that the insurer justified in withholding payment to the insured. Commercial Banking Corporation vs. Court of Appeals, supra, (3) Presumption of unreasonable delay. — There is prima facie presumption of unreasonable delay, however, if the insurer fails to pay any such claim within the time prescribed in Sections 248 and 249. (Sec. 250.) In one case, the court found that there was no merit in the insurer's contention that the proofs of loss submitted by the insured were insufficient. “As the fire which destroyed the insured property occurred on December 19, 1981 and the proofs of loss were submitted from January 15, 1982 through June 21, 1982 in compliance with the adjusters’ numerous requests for various documents, payment should have been made within 90 days thereafter or on or before September 21, 1982. Hence, when the assured filed her compl of action had already accrued.” The insurer was held dlamages consisting of 10% of the amount of the loss as. fees and to double interest (24%) on the said amount starting from the time the case was filed. (Cathay Insurance Co,, Inc. vs. Court of Appeals, 174 SCRA 11 [1989].) resolutions of trial court and Commission. — ‘Aside from the revocation/suspension of license, the Insurance ‘Commissioner also has the discretion to impose upon the erring, insurance companies and its directors, officers and agents, fines and penalties, as set out in Section 438. (infra. The findings ofse INSURL nce cong oF THEPALIPFINES ANNOTATED, Sea 25 os TH necessarily foreclose the administra the trial court will not ee retina ed on the same set of facty i the issues to be resolv je identical evidence. But at ci al eto reliefs to be adjudged by these two bodies are dif a (a) In the civil case, te insured must establish is cage by a preponderance of evidence, OF simply Put, soch evi ene eof or more convincing than that which thats of greater wel fi In an administrative case, the of relevant evidence 8 adequate to justify the conclusion. (b) In addition, the procedure to be followed by the trial ,fCourt, while the Commission has its own set of rules and it is not bound by the rigid of technical rules of procedure. These two bodies conduct independent means of ascertaining the ultimate facts of their respective cases that will serve as basis for their respective decisions. If for example, the trial court finds that there was no unreasonable delay or denial of the claim, it does ‘not automatically mean that there was in fact no such "vocation courtisgoverned by the Rul preponderance of evidence that he is entitled to damages. Such finding would not restrain the Insurance Commission, tched, the finding or conclusion of > 7 awe be binding on the other given the ence in the issues involved, the quantum of evidence required, and the procedure to be followed. Se. 250251 ‘THE BUSINESS OF INSURANCE - (©) Moreover, public interest and public policy demand h re ic policy de: the speedy and inexpensive disposition of administrative cases. (Go vs. Office of the Ombudsman, 413 SCRA 608 [2003] irance companies are prone to invent excuses to avoid their just obligation. (Security Pacific Assurance Corp. vs. Tria-Infante, 468 SCRA 526 [2005] (S) Damages, recoverable. — It is clear that under Section 250, in case of unreasonable delay in the payment of the proceeds of an insurance policy, the damages that may be awarded are: (a) Attorney's fees; (b) Other expenses incurred by the insured person by reason of such unreasonable denial or withholding of payment; (©) Interest attwice the ceiling prescribed by the Monetary Board of the amount of the claim due the insured; and (4) The amount of the claim Section 250 does not require a showing of bad faith in order that attomey’s fees be granted. (Prudential Guarantee and ‘Assurance, Inc. vs. Trans-Asia Shipping Lines, Inc., 491 SCRA 411 [2006].) Section 251 imposes a penalty for presenting or causing tobe presented any fraudulent claim for payment of a loss under a contract of insurance, or any writing in support of any such claim, Propriety of award of moral and exemplary (damages and attorney’s fees) In a case, the petitioner (insurer) contends that while the of the insured prayed for P10,000 moral damages, the lower court awarded twice the amount, or P20,000 without factual or legal basis; while private respondent prayed for P5,000 exemplary damages, the trial court awarded P20,000; and while private respondent prayed for P3,000 attorney's fees, the trial court awarded P5,000. ‘The propriety of the award of moral damages, exemplary damages and attorney's fees is the main issue raised by the petitioner. The Supreme Court held:jRANCE CODE OF THE! pRILIPPINES ANNOTATED S255, ay THEINSU lary damages ‘of moral and exemp! : ward shall gov vil Code of the: sfendant. : expense ofa de neg, diversions of amusements that injured party to ob moral suffering he has undergong will serve to alevittjendant’s culpable action. While it ig by reason of mary 10ss iS Necessary in order true that no proof of Pen iicated, the assessment the court accord Sec maps a is equally true ‘ce must be a showing that the breach breach of ora etl sjrtousor the one respons ‘ted fraudulently or in bad faith. a nt case, there was a finding, that private respondent (insured) was given a ‘run-around for two (2) TeePths, which is the basis for the award of the damages ‘der the Insurance Code for unreasonable delay in ‘of the claim, However, the act of petitioner of granted uni the payment delaying payment for two as so wanton or malevole respondent. The reason for petitioner’ private espondent within the two-month period was that the parties could not come to an agreement as regards the amount of the actual damage on the car. The amount of 10,000 prayed for by private respondent as moral damages is equitable. (On the other hand, exemplary or corrective damages are imposed by way ample or correction damages public ea Leite os the case of Noda vs. Crus mi 1987].), exemy damages were not awarded asthe inaancecompeny had pot acted in Wanton Secs, 250.251 a ‘THE BUSINESS OF INSURANCE Tide 11 — Claims Settlement oppressive or malevolent manner. The same is true in the ‘case at bar, ‘The amount of P5,000 awarded as attorney's fees is justified under the circumstances of this case considering that there were other petitions filed and defended by private respondent in connection with the case. x x x Therefore, the award of moral damages is reduced to P10,000 and the award of exemplary damages is hereby deleted.” (Zenith Insurance Corporation vs. Court of Appeals, 185 SCRA. @) Where the insurer resisted the claim for indemnity on the ground that the death of the insured (who negligently shot himself) was covered by the exception in the insurance policy, it was held that the issue raised being one of first impression and was indeed debatable, the award of moral and exemplary damages and of attorney's fees would be unjust. (Sun Insurance Office, Ltd. vs. Court of Appeals, 211 SCRA 552 [1992].)TITLE 12 EXAMINATION OF ‘COMPANIES. The Comm SEC. mepany doing busines i ruling or decisions of the Commis ‘SEC, 253, The Commissioner shall at least once a year and whenever he considers the public interest so demands, ‘cause an examination to be made into the affai condition and method of business of every company authorized to transact business in the Philippines ‘and of any other person, firm or corporation managing the affairs and/or property of such insurance company. ‘Such company, as well as such managing person, firm or corporation, shall submit to the examiner all such books, papers and securities as he may require and such examiner, icers of mn, and the authority to transi ines of any such company shi the Commissioner if such examination ‘company shall not thereafter business in the Philippines until it has fully complied with the provisions of this section. Government-owned or controlled corporations or entities engaged in social or private insurance hall similarly be subject to such examination by the Commissioner unless their respective charters otherwise provide. be suspended by refused and such Sock. 252-253, ‘THE BUSINESS OF INSURANCE ‘Tle 12— Beamination of Companies Examination of insurers. Objective of the examination. — The exami every insurance company doing business in the Phil an important task of the Insurance Commissioner. Co solvency of insurance companies or financial ability to meet their ‘commitments is the major objective of such detailed exa (ec. 257.) which shall be conducted according tolaw at least once a year and whenever the Commissioner considers the public interest so demands. (Sec. 253.) 2) Powers of Commissioner. — The checking of assets, ies, and reservesis part ofthis procedure as well asa review of almost all underwriting, investment, and claim practices of the insurer. (D.L Bickelhaupt, op. cit, p. 204.) (2) The Commissioner is aithorized to enter the offices of an insurance company, to call for its books and records, to examine its securities, count them, investigate their genuineness (eg., by writing a letter to the person who appears to have given a mortgage to the insurer) and appraise their value. (b) He is also authorized to confer such power on his deputies or assistants who are required to make a written report of facts and recommendation, In the course of examinations and in more formal hearings, the Commissioner is empowered to administer oaths and a person who gives false testimony is li prosecution for the crime of perjury. ymmissioner does not have the power to for contempt or disobedience of his orders. he must resort to a proceeding in court. 15;see Sec. 416, par.9.) (EW. Patterson, Examination of insurance and reinsurance broke lowing rules and procedures shall apply: (1) Financial statements of insurance and reinsurance brokers authorized to transact business in the Philippines shall[INESANNOTATED Seca, cove oF THe FHI A ou THEIMSURANCE i ion. All cor ination verification. al be subject 10 yearly a1 books of accounts, securitis St ge ed pam oa or s red by the examiner aaa miner shall abso have the power 0 examine thy a aman ander oat touching is business an coficers of such comPATY Fe authority to transact Business in alton, emsuch entity shall be suspended by the ePalippines 0 ch examination is refused and such entiy Commissioner if ot lowed to transact further business in the theres it has fully complied with all the requirements collected or eee as premium payment i moviately remitted to the insurance or reinsurance sae toneemed, unless 2 period has been agreed upon whi Shall exceed 90 days from inception of the poli ly exarni (2) All monies be reconciled; otherwise, setting up of non-ledger lia Likewise, premium receivable /recoverable over 90 days shall also be disallowed unless proof of collection shall be submitted, {G) Proof of investments in bonds, treasury estate, loans receivable, cash on hand and in bank s presented /submitted to the examiner and shall be subjected to disallowance if supporting documents are inadequate. (4) All other accounts, such as deferred and prepaid taxes, upon proper determination /examination or verification by the ‘examiner. than that required under Ins. Meme. ion requirements for insurance and ime shall be fully covered up in cash reinsurance brokers), Seon 252.253 THE BUSINESS OF INSURANCE ‘Tile 12— Examination of Companies to be contributed proportionately by the stockholders on record within 15 days from receipt of the advice from the Insurance ‘Commission. Any cash infusion by the stockholders shall also be subject to examination and verification in accordance with the provision of Anti-Money Laundering Act of 2001 (R.A. No. 9160, as amended RA No. 9194.)and Ins. Cir. Letter No. 24-05B dated September from the parent company ne Consul Mf appliabe. i, Ci Later No 9-09, March 9. .TITLE 13 PENSION OR RI SPER AUTHORITY the Commissioner is of the oplaton upon ‘SEC. 254. If that any domestic or sence : on of her vider unsound condition, jsurance the provisions of law or that it has ‘or that its condition or a faigatory UO or regulations 2b19410% ch as to render its proceedings inethed otto its policyholders, or that its {he cage of a domestic stock ‘company, oF its mutual : domeete of a foreign company, ired oF deficient, or gin of solvency required of such company ant ent the Commissioner is authorized to suspend deficient, the Commi {s deficient certificates of authority granted to such ny, its officers and agents, and no new such company or for authority to do business is restored by the Commissioner. Before restoring such authority, the Commissioner shall require the company concerned to submit to him a business plan showing the company's estimated receipts and disbursements, a3 basis therefor, for the noxt succeeding three (3) y ‘Suspension and revocation of license. ‘The Insurance Commissioner is given the power to revoke or withhold the license or the renewal of the license of an insurance company. The decision made by the Commissioner shall be appealable to the Secretary of Finance. (Sec. 437, i taken by the Secretary of Finance may be judici os sc 254 “THE BUSINESS OF INSURANCE oe Tie 13—Suspensien or Revocation of Authority determine whether the charges upon which his action is based are supported by the evidence. However, his decision will not be disturbed unless there has been an abuse of discretion. (see 43 Am, Jur. 2d 115-116.) The Insurance Commissioner is authorized to suspend or revoke all certificates of authority granted to an insurance company for any of the grounds enumerated in Section 254. aaaTITLE 14 APPOINTMENT OF CONSERVATOR ‘a condition of solvency oF protect the interest of pol joint a conservator licyholders and creditors, he to take charge of the assets, * and the management of such company, collect ‘moneys and debts due to said company and exercise ail powers necessary to preserve the assets of said Company, reorganize the management thereof, and restore its viability. The said conservator shall have the power to ‘overrule or revoke the actions of the previous management and board of directors of the said company, any provision of law, or of the articles of incorporation or bylaws of the ‘company, to the contrary notwithstanding, and such other powers as the Commissioner shall deem necessary. The conservator may be another insurance company doing business in the Philippines, any officer or officers of of the conservator claim or demand by, o of anything done or omi exercise, or in conr conferred on the conservator. The conservator appointed 7 shall report and be responsible to the Commissioner until such time as the os Sec. 255, THE BUSINESS OF INSURANCE ‘Tile 16 — Appointment of Conservator that the insurance company can hip report of the conservator or of at the continuance in business of the insurance company would be hazardous to policyholders. editors, in which case the provisions of Title 15 shall rehabilitated or authorized to transact anew, insurance or reinsurance business, as the case may be. (n) Appointment of conservator. As a protection against insolvency and unfair treatment of claimants, policyholders and creditors, insurance regulation continues after the formation and licensing of an insurer. The ‘Commissioner exercises some control over many phases of the operations of insurance companies. (D.L. Bickelhaupt, op. cit, P. 208.) Under Section 255, the Commissioner, before or after suspension or revocation of the certificate of authority of an insurance company, may appoint a conservator to take charge of the management of such company if he finds that itis in a state of continuing inability or unwillingness to maintain a condition of solvency or liquidity deemed adequate to protect the interest of policyholders and creditors. The conservator shall i all powers necessary to preserve the assets of the sai reorganize the management thereof, and restore its viak Financial Rehabilitation and Insolvency Act (FRIA) led the Insolvency Law (Act No. 1956), may apply can apply.cootoFTHEFHIPPINES ANNOTATED Sa a 63) THEINSURANCE' proceedings: Nature of conservation mp pracecing — Conservatorship (1) As to major inst a financially distresseq proceedings eee the nature of seha tation insurance compan} jor may only act with the proceedings. As such the or ioner with respect to the of administration. — With respect xf administration, the scosecialet has ‘ re of his appointment to proceed wot _guthoriy OY the Insurance Commission. Hes clothed ea eat diecetion in conducting and managing the affairs of Haeccae ace company placed under his control. The authority fer to reorganize the management of the cfr nonin ror eaong oe the authority to carry out a retrenchment program to prevent dissipation of company funds. (Garcia vs. National Labor Matsa Cepamson 158 SCRA 69 [1987}) ‘A company for rehabilitation is one whose certificate of authority to do business has been suspended either for failure to make good its capital impairment and /ot margin of solvency deficiency within the period prescribed under Section 194 of the Insurance Code or for any other causes provided in the same Code. (Dept. of Finance Order No. 27-90, July 26, 1990.) Action against conservator, The third paragraph of Section 255 cannot be construed to prohibit suits being brought against a conservator in his or its representative capacity, as custodian and manager of the funds and property of the company under conservatorship. The rule laid down by the Supreme Court with respect to actions against a receiver of liquidator under Section 251 (infra.) applies to the Sat (Garcia vs. National Labor Relations Commission, —000— TITLE 15 PROCEEDINGS UPON INSOLVENCY SEC. 256. Whenever, upon evidence, it shall be disclosed insurance company doing bus is one of insolvency, or that its ‘would be hazardous to its policyholders and creditors, the ‘Commissioner shall forthwith order the company to cease jereupon determine within e insurance company may placed in such condition so ninety (90) days bbe reorganized or policyholders and creditors and s ich such resumpt ‘shall be determined by t paid out of the assets of such company. (a) Ifthe Commissioner shall determine and confirm within the said period that the insurance company is insolvent, as of its liquidation and approve a liquidation plan. The aon INESANNOTATED S35 jpOF THE PHIL! 6 “THE INSURANCE COPE ‘a competent and qualifieg Commissioner shall dion oo Ter functions of tak person s Houtator who i ed and, with all convenient Loe into cash, or sell, assign | mince te STP eure compay dnd to do such other acts as may be necessary to complete the liquidation as ‘ordered by the Commissioner. provisi law to the contrary notwith- sta Pee of the Commissioner under this sation hall be final and executory, and can be set aside by the court upon petition by the company and only ifthere is convincing proof that the action is plainly arbitrar made in bad faith. The Commissioner, through the Solicitor en file the corresponding answer reciting jings taken and praying the assi inthe liquidation of the company. No re: section, unless there is convincing proof that the action of the Commissioner is plainly arbitrary and made in bad with the Clerk or the is pending a bond n aflroceedingsunderthistite sh ibe given preference Day any fos toate Commissioner shall not be required to ‘ny Public officer for filing, recording, or any ‘Secs. 256-257 ,THE BUSINESS OF INSURANCE. Ge ‘Tie 15 — Proceedings Upon insolvency ‘manner authenticating a the proceadioge at"? 49¥ Paper or instrument relating to As used in thi fs the term “insolvency” shall mean the lnatitty of nce company to pay Its lal obligations as they fall duein the usual and ordinary course ‘of business as may be shown by its failure to maintain the solvency requirements under Section 200 of this Code. (a) SEC. 257. The receiver or the liquidator, as the case may be, designated under the provisions of this title, shall not be subject to any action, claim or demand by, ity Person in respect of anything done or omitted to be ‘900d faith in the exercise, or in connection with ise, ofthe powers conferred on such receiver or Power to dissolve and liquidate insurance companies. The Insurance Commissioner not only officiates at the birth and growth of an insurance company but also at its demise if necessary. An insurer may be liquidated for a number of reasons including financial insolvency. (D.L. Bickelhaupt, op. cit. p.214.) ‘Some liquidations may be voluntary in nature in order to effect a corporate reorganization or merger. (Ibid.) (1) Insolvency asa ground for dissolution or forfeiture of charter. — The right of the state to regulate and control insurance companies includes the right to manage the dissolution and liquidation of the business of an insurance company. If the business of an insurance company and its financial condition are such that it cannot continue its operations with safety to the public, it may be solved at the suit of the state before a judicial tribunal which for the company to make defense, may after full oppo: determine whether it is insolvent or its condition is such as to render its continuance in business hazardous to the insured or to the public. (Chicago L. Ins. Co, v. Needless, 113 US 574.) the “Financial Rehabilitation and Insolvency Act (FRIA) repealed “The Insolvency Aet” (Act No. 1956) may apply isis can apply.suewsunance cooeOFTHEPHILIPINES ANNOTATED S263 4 THE ¢ insurance transactions which “Considering the nature of inf coealy on utmost good faith especially ee the part depend entirely dd where an insurance company has become Seectord tinue to resume business with safety ‘other creditors, its assets must prese id expeditiously ved to set : edie its debts and accounts. - Es ae asa ‘ommissioner in connection there Commissitinnecessarily by tedious and protracted cour, Tigatons” (Pres. Decree No. 1141; see Sec. 256, par. 4.) jutes insolvency. — As any other corporation, mpany, broadly speaking, must be deemed sets are so depleted that they are insufficient debts, On the other hand, an insurance property is bilities and it is able to pay its ugh the excess of the value of its ‘may be less than the par value of its ,, Inc,, Co., 262 F. 861; 43 Am. Jur. 24 for the payment company is not i greater than the amount debts when they mature property above i stock. (Shearer v. 183.) “Insolvency,” as a ground for the liquidation of an insurance ‘company, is defined by the Code. (Sec. 256, last par.) (3) Irregularities as justification for dissolution. — Where the irregularities committed by an insurance company affect the faith and trust that insurance companies must command as well as its financial stability, public interest demands its liquidation and dissolution. In a case, an insurance cor any had been found to have : (a) granting \s;(c) issuing numerous : c ing capacity; (d) keeping its daily collections in the company’s safe a practice which is not in accordance with current sound business procedure; and (e) ‘Secs. 256-257 (THE BUSINESS OF INSURANCE ed Tie 15—Proseeings Upon islvency lack of records showing that it had cash deposited in banks. Its cash on hand wa 5,631.83 when it must maintain, at all times, free from all liens, cash in bank amounting, at least, to 50,000. According to the Supreme Court, this case is clearly distinguishable from that of the Government of the Pil. vs. El violations of the law not affecting the financial sounciness of the insurance companies therein whereas those committed by the insurance company in the case at bar, affected adversely the interest of the parties dealing with it, as well as the stability of the firm. (Commissioner vs. Globe Assurance Co., Inc, 1 SCRA 468 [1961].) (4) Weight of Insurance Commissioner's opinion on soundness of {financial plan. — Where, after due investigation, the Insurance ‘Commissioner finds that the financial condition of an insurance company is precarious and that public interest demands its liquidation and dissolution, his subsequent disapproval of a plan submitted by the company, to give it a chance to rehabilitate its finances within a stated period can hardly be questioned because being best qualified by reason of his position and experience in the field of insurance, to pass upon the soundness of the plan, his view carries weight. (Ibid.) (5) Receivership. — A statute which provides that the to the assets of the company is the consequence of a suc jon by the law which created the corporation. (Clark v. Williard, 292 US 112; 43 Am. Jur. 2d 184; see Banzon vs. Cruz, 45 SCRA 475 [1972].) (©) Rehabilitation of insolvent insurance companies. — Tt is in the power of the state to provide by statute for the insurance commissioner subject to the approval of the court for the purpose of preventing depreciation in assets consequent uponsnesuRANCECOOEOF THEPHILIFFINES ANNOTATED Se 25 os TH iquidation. Rehabilitation is sometimes accompli ce gn, bite re cy sence ofits business. In some Cases, 2 practical method ¢f wehlitation requires the formation of a new Company. (Nebje ‘v. Carpenter, 305 US 297; 43 Am. Jur. 2d 181.) idator. Action against receiver or liqui “The exemption rom liability under Section 257 ofthe receiver or the liquidator does not suits being brought a a receiver or liquidator i representative capacity, his or custodian and manager of the funds and property of the person, ey under receivership of liquidation. To do so would work or fr nde ce ame sean ge latter and leave them without remedy to pursue and recover on their daims, eh oo tion applies only with reference to acts done or tet undone good faith by the receivership or liquidation. It does not apply to actions brought upon claims against the person or property under receivership or liquidation and not, in any ‘event, upon claims which matured before the receivership or liquidation was established. (Pioneer Insurance & Surety Corp, vvs. Fortun, 149 SCRA 248 [1987].) —000— TITLE 16 CONSOLIDATION AND MERGER OF INSURANCE COMPANIES SEC. 258. Upon pi two (2) of more dom through their resy negotiate to mers boards of directors, may a single corporation which shall ‘be one of the constituent corporations, or consolidate into le corporati be a new corporation to bbe formed by the consolidation. A common agreement of the proposed merger or consolidation shall be drawn up for sut stockholders or members of the constit for adoption and approval in accordance ns of the respective bylaws of the constitu and all existing laws that may ‘SEC. 259. Such agree the proposed merger or c* to the manner of transfer of ies by the absorbing or acquiring company from absorbed or dissolved company or compani to be adopted which shot ‘company transacting 3 that of any other business consolidation; and such particulars as may be necessary to explain and make manifest the objects and purposes of the absorbing or acquiring company. ‘SEC. 260. Upon execution of such agreement to merge or consolidate by and between or among the boards of ow”os snip INSURANCE CODEOF THEFHILIPPINES ANNOTATED Sec 251. 9 constituent compani y to their policyhol |, with the cor it imed by the absorbing or acquiring or sucl 1s be reinsured by the latter. In ‘such policies as are subject to cancellation by 10 be absorbed or dissolved, company, the case of lieu of such transfer, assump! ‘SEC. 261. Upon approval or adoption in the meetings of the stockholders or members called for the purpose in each of the constituent companies of the agreement be paid the vi concerned in accordance with the bylaws thereof. ‘SEC. 262, Upon approval or adoption of the agreement to merge or consolidate by the stockholders or members of the constituent companies, the corresponding arti ‘of merger or of consolidation shall be duly executed the presidents and attested by the corporate secretaries and’ shall bear the corporate seals of the merging or ‘consolidating companies setting forth: (a) The plan of merger or the plan of consolidation; (b) As to each corporation, the number of shares outstanding, or in case of mutual corporations, the number of members; and (c) As to each corporation, the number of shares or members voted for and against such pl of merger or consolidation, verified by affidavits of officers and under the seal of the constituent companies, shall be submitted to the Commissioner, together with ‘such other papers or documents which the Commissioner may require, for his consideration. genre ger rere eeerereere erence ce. 268-267 SEC. 263. The articles of merger or consolidation, signed and verified as hereinabove required, shall be filed with the Securities and Exchange Commission for its examination and approval. No. 1789, now EO. No. 225 date receipt from the Securities and ‘of merger or of ‘of merger, or the newly formed company in case of, lation, except those conferred by the certificate of ‘merger or of consolidation and the articles of merger or of ‘consolidation, or the amended articles of incorporation, registered with the Securities and Exchange Commission.“do THEINSURANCECODEOFTHEPHILIFPINES ANNOTATED Secs. 256.4,, Definition of terms. For the purpose of Title 16, the term — (1) Merger means the two companies that results in continuetion of the corporate existence and survival of ong constituent company and dissolution of the other. (2) Consolidation is the combination or union of two or companies that termination and dissolution of the corporate existence of all constituent companies and the formation of a new com @) Absorbing or acquiring company means the survivis company, in case of merger, or the newly formed company case of consolidation. Absorbed company means the consti company whose corporate existence is dissolved as a result of the merger or consolidation. (4) Company or companies refers only to domestic insurance company or companies. (see Ins. Cit. No. 79, March 18, 1973.) ei aog et No. 7082), “an acto promote forign investment, pres 1 rege tering enterprises deny in ts roceduces frre purpose,” repealed TITLE 17 MUTUALIZATION OF STOCK LIFE INSURANCE COMPANIES ‘SEC. 268. Any domestic stock life insurance company if into capital stock for ‘or any class or classes of its policyholders, 19 with the requirements of this chapter. Include appropriate be specified in such corporation's articles they may be amended from time to consent of such shareholders; (€) Submited to the Commissioner and approved him in writing; kd (d) Approved by a majority vote of all the policyholders of the class or classes for whose benefits the stock is to be. oaton {LIPPINES ANNOTATED one oF THE! “THE INSURANCE CODE OF a teas seounes tra eye i Paes pln 27 fern eo seat ne ore den Ef 2 Plo przre Peitcynolder In any case where a policy or contract names Pen er more persons as joint insured, payees, owners or ed shall be deemed for the purpose this chapter. In any case hhave boon assigned by assignment absolute on its fa an assignee other than the insurer and such assignment fave been filed at the principal office of the st thirty (30) days prior to the date of any is chapter, then such assignee policyholder. For the purpose of this chapter, the terms “policyholder” and “policyholders” include the employer group policy has be of certificates or pol with a master group, ontrats shallot a such be deemed tobe policyholders; ed with the Commissioner ater having be as provided in . oe FS are protected nor unless tified that the plan will be fair and equitable in its rnpanies bed by subparagraph (3) Dy the board of rectors of the class OF stock 1o be acquired, in force for at least one (1) regardless known address. be by one of the following methods: uch policyholders, held pursuant to ‘such notice, by ballot in person or by proxy. (b) If not by the method described in the preceding pursuant to a procedure and yy such plan. man of sald meeting or designated for st 5s, ‘and questions in any way arising in connectionou THE IN OF THE PHILIPPINES ANNOTATED INSURANCE CODE OF THE PHIL ‘ : HI te all votes, determine the ‘are proper to conduct and do such other 20 aera, The Inspoctors the vote with faimess te mmencing performance of their om al er core ner ar ih ‘oath that they, and each of will in good faith, to right to vote, count and tab! request of the insurer, or his proxy, the inspect ‘er, Any report or certificate made by facie evidence of facts stated therein. them shal be prvenses incurred in connection with such Tnaure. For the purpose of lection shall um aval consist of five percent (5%) of ane of such inurar entitled to vote at such tlocion. SEC. 272 n crying out any such plan, the insurer sna sinc any shares ofits ovm stock By gift bequest or purchase. Any 3h a 5 or classes for whose benefit the tock of the insurer shall be acqui provided. Such shares shall be assigned and transferred on the books of such insurer and approved by the Commissioner. Such trustees shall hold such stock in ars with such extensions of not more th: (5) years each as may be granted by the Commi reasonable period. Such trustees shall vote such stock at all corporate meetings at which stockholders have the right to vote. When all the outstanding shares of capital stock of such insurer have been acquired, all said shares shall bbe cancelled, the certificate of amendment of the insurer's. 00.273 the profit of its members and su: rs and such trust terminate. Thereafter such corporation st for the mutual benefit, ratably, of its poli class or classes for whose benefit the stock wi tial. particip between the insurer and the insured. Upon the termination of any such voting trust, in accordance theretofore completed, Upon such plan of mutualization provides for the disposition of shares acquired by the insurer under such plan or for the disposition of the proceeds thereof, such trustees shall be disposed ‘order of the court of competent jurisdi insurer, made upon a verified petition of the Commission ‘SEC. 273, Any such plan of mutualization may provi for the creation of a voting trust under a trust agreement for the holding and voting by three (3) or more trustees of ‘such plan or, if no provision ing of such trustees, then by to the approval of the Commissioner. Any trustees under such voting trust agreement may be the same per trustees referred to agreement shall provi 1s of the plan, such shares 's0 acquired together with the voting rights thereof shall be transferred by the trustees named under the provisions of this section to the trustees named under the provisions ofos HE _THEINSURANCE CODE OF 7 72. Upon 27h provisions of this section, Mich trust shall revert to the person ayment for the acquisition of any ich insurer, the purchase re: capital stock of such insurer, . shares of Sg not fea by such plan, shall be subject al of the Commi wate may be approv p75 The trustees referred t0 In Section 272 anole dats such Insurer and wth the Commissioner shal ita aeeplace of ther appointments and declarations that they will faithful ;charge their duties ‘other sume received i Zac ustens on th shares held by them, after paying the neceeary expenses of executing thelr trust, shal be iimacsty fepatd te such insurer forthe bent of all ray become, poeyholders of such insurance tisses for nose benefit the stock of auch quired and’ ented to participate In the the period provided inthe ‘standing shares of stock "%) thereof has already boon acquired and transferred to the trustees under the plan, the insurer by a vote of a majority of the directors to make an offer, with the permission of sioner and subject to such requirement as he ‘may specify, to acquire by purchase all of the shares not ‘heretofore acquired under the plan, at a specified price 00.276 which the insurer considers i” Cu date of making such offer, eel nara if accepted in writing wi (30) days after tho maling of such offer Any accepting such offer within the ti ) days after his acceptance, transfer to the insurer the certificates representing such shares and, upon doing i be paid by the insurer for his shares. Any share so act and transferred to the trustees under the plan and held by them as shares acquired pursuant to the plan. ired shall be assigned for a determination of the fé date of making such the approval ten (10) days referred hearing, after which structions. Whenever the Secretary may recommit it wit jetermine in any manner, as aforesaid, of Finance shal or8 [eS ANNOTATED HE INSURANCE CODE OF THE PHILIPPIN! ; 1 may also determine the insurer. The expenses ing charges of the of euch shares, he Tayment thereof BY eedings sopranos, ta Prail be paid equally by the Insurer ang appr / the shareholder. me 8 dings of the Secretary of Financo on al The fina raised at the hearing of the application ser termnation ofthe fair value of such shares shall be conclusive upon ail parties to the ne Onder force t of a judg! fore and efecto uch order shall become final ang croeetory fifteen (15) days after recoipt thereof by the Parties to the proceedings. icates representing such shares ‘and the insurer shall make payment therefor as provided in such order. Any shares so acquired by the insurer shall ferred to the trustees and held by ied pursuant to the plan. for making such application, and such shareholder's time for accept ‘such offer shall, for that purpose only, be deemed been extended accordingly. theretofore acquire who has rejected si be compelled to do so by an order of the Finance for that purpose and such order may upon failure of such shareholder to surrender ‘Such certificates for cancellation, such order shall stand in lieu of such surrender and cancé0 {es ANNOTATED pILIPPINES ANN el curanck CODEOF THE? 2% “THE INSURANCE © ich insurer to any member : en by SU notice may be gvrrnall, oF other means Of writton either personally id, addressed to such ‘communication, “appearing on the books of the member at his address yy him to the insurer for ives no address, noti im if sent by mi r 2 if 1 rs shall be sent to ) days ‘of membel Notice of any meeting ‘each member entitled thereto n before such meeting, unless the meeting of members shall bapepitet hour of the meeting and the to be transacted. than in the pl is located, and if so published no other notice of such meeting shall be required. (4) The presence in person or by proxy of five percent (6%) of the members entitled to vote at any meeting shi constitute a quorum for the transaction of business, including the amendment of the articles of incorporation and/or the bylaws unless otherwise provided by the bylaws, have one (1) vote at any ‘the number of policies ‘or the amount of insurance that such member holds and regardless of whether such policies are policies of life insurance, or of health and accident insurance, or both. ‘Any member entitled to vote shall have the right to do ‘ in person or by an agent or agents authorized y a written proxy executed by such person or his duly authorized a Authorized agent and filed with the secretary of such See. 279 (f) The directors of the insurer in office at the time turer is mutualized as provided in this chapter tinue in office ut of - At the first ar each annual meeting thereafter, directors sI by the members for the term or terms authorizes chapter. (g) The articles of incorporation or the bylaws may provide that the directors may be divi ‘more classes whose terms of office shall expi times, but no term shall continue longer that In the absence of such provisions, each members of the board of directors at the remaining directors, though less than a quorum, and each director so elected shall hold office until the next annual meeting. of this Code. The provision of the Corporation Code shall apply in a suppletory manner. (a) \S of Commonwealth Act No. urities Act,“* as amended, lowing: stock of such insurer acquired ind assigned and transferred to the trustees as is provided in said section, and the assignment and transfer of said shares as so provided; (b) Any certificate or other instrument issued to fa policyholder of such mutualized insurer conferring for evidencing membership in such mutualized insurer ber’s right to sssets of such membership therein, or other instrument;NESANNOTATED Sec 269 5 652. THEINSURANCE CODEOF TH 1 the acquisition of the outstandin, (6) The plan fr scl of such insurer authorized by arcs or shares of he ap Spar te submision Of ald ly the provisions 0 sg to the POIcy holders of such is chapter, and the approval ang surer as provided in this Inmurer a5 Brevi an or any par thereof I ACcordaneg with tho provisions of this chapter. ‘SEC. 280. A domestic mutual life Insurance company doing business in the Philippines may convert itself into ‘an incorporated stock life insurance company by jon, To that end, it may provide and carry conversion by complying with the jon of a domestic mutual life insurance company to an incorporated stock life insurance company ‘shall be carried out pursuant to a conversion plan duly approved by the Commissioner. (n) The Commissioner shall promulgate such rules and Code. The provisions of the Corporation Code shall apply in a suppletory manner. (n) ‘Types or classes of insurance companies. there are three kinds of insurance companies? — Ithas been tersely defined as i stockholders who contribute all the capital, pay all the losses, and take all the profits. The ww Secs. 268-280, a THE BUSINESS OF Twe 7 INSURANCE le 17 — Mutualization of Stork Lite Inunanee Companies stockholders need not be poli: 5 (2) Mutual insurance company. — A cooperative enterprise, wherein the members constitute both inact ond insured, where the members all contribute, by a system of premiums and ments, to the creation of a fund from which all losses and ities are paid, and wherein the profits are divided among, themselves in proportion to their intet ick v. Stale Farm weer Insurance and Surety Corporat RA 448 it may be either: shared areata assessable mutual or one that charges a fixed and the policyholders cannot be assessed. Legal eserves and surpluses are maintained to provide payment of all claims; or (b) assessable premium mutual or one that charges an initial fixed premium, and if that is not sufficient, may assess the policyholders to meet losses in excess of the premiums that have as charged. (Davids, Dictionary of Insurance [1959], p.141 Under the Insurance Code, only adomestiestocklife insurance company doing business in the Philippines may convert itself into an incorporated mutual life insurer by complying with the requirements provided in Sections 269 to 275. (see Sec. 268.) All ‘mutualized insurers are subject to all applicable provisions of the Corporation Code (Sec. 278]8],), and (3) Mixed insura — One that has, at least in part, the nature of both stock and mutual companies, and in which a certain portion of the profits is divided among the stockholders and a distribution of other funds made among the policy holders. (Pink v. Town Taxi Co, 21 A 2d 656; see 43 Am. Jur, 2d 155, 156, 162.) Status of members of mutual insurance companies. (1) Rights and liabilities, generally. ~ The contract of insurance with a mutual insurance company is a peculiar contract, for although in terms a contract with the companyPHILIPPINES ANNOTATED Ses, NCE CODE OF THE! 268.259 est THEINSURAI between the i and all other members of a contract ore a Phinney, 178 US 327.) Pad on ea dad elationship inter se, and their interoge member i they are both insurers and insured. (Gaston y are Sea 107) Each person insured in such a company ‘subject to the same obligat cae thus become they bear toward him. (Baxter v. Chelsea Mut. ins. Co. 83 Mass. Allen 294.) membership. — If the charter of the company Jona on the subject, membership commences ‘ofa policy and lasts only for the policy in, 105 NW 1135.) It ceases with the icy and payment of the i yrce. (Commonwealth Mut, expiration of the member's pol incurred while the policy was in fo Ins. Co. v. Hayden, 85 NW 443.) (G3) Relationship of members to company. — Some courts have denied that the members of mutual insurance company are bound to share in the losses and are entitled to share in the profits on the basis of a partnership, except insofar as the charter or policy provides otherwise. (Mutual Guaranty F. Ins. Co. v. Barker, 77 NW 868,) The policyholder is not a partner of the company, but his relation with the company is one of contract and is measured by the terms thereof. (Brown v. Stoerkel, 41 NW 921.) A mutual life insurance company is conducted for the benefit ‘of its member-policyholders, who pay into Ny way of premiums. To that extent, they are responsi payment nd the premium iat the company Is before the terms of the policies expire, the member- licyholders do not acquire the status of creditors. Rather, they simply become debtors for whatever premiums that they have originally agreed to pay the company, if they have not yet paid those amounts in full, for “{mlutual companies x x x depend solely upon x x x premiums.” Only when the premiums will ‘have accumulated to a sum larger than that required to pay for ‘company losses will the member-policyholders be entitled to a ‘pro rata division thereof as profits.” (Republic vs, Sunlife ASsut. Co. of Canada, 473 SCRA 129 [2005].) (4) Right to share in the common fund. — Sharing in the common fund, any member-policyholder may choose to withdraw dividends in cash or to apply them in order to reduce a subsequent premium, purchase additional or accelerate the payment period. Although the pre the beginning of a year is more than necessary to provide for the cost of carrying the insurance, the member-policyholder revertheless receive the benefit of the overcha ands, at the end of the year when the cost scertained. The declaration of a dividend upon a policy red 70 tanto the cost of insurance to the holder of the policy. That is ‘The so-called “dividend” that is received by member-policy- holders is not a portion of profits set aside for distribution to the stockholders in proportion to their subscription to the capital stock of a corporation. One, amutual company has no capital stock to which subscription is necessary; there are no stockholders to speak of, but only members. And, two, the amount they receive does not partake of the nature of a profit or income. The qui appearance of profit will not change its character. It rem: Property While the corporati the members are, generally speaking, the debtors. (Moyer v. Atty. Gen., 32 NJ Eq, 815.) After the payment of d ear to be that the assets belong only to members includes only present policyholders. v. Gaty, 105 NW 1013, 1135; 3 Am. Jur. 2d 167-169, 193.) —000—TITLE 18 ITHDRAWAL OF FOREIGN WNSURANCE COMPANIES nn conpny tn

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