COLOMBIA Law and Practice Contributed by: Rebeca Herrera Diaz, Rebeca Herrera Abogados
6. Making an Insurance Contract 6.1 Obligations of the Insured and Insurer Colombian law requires the insured to disclose all material information regarding the insurable risk. Arti- cle 1058 of the C.Com establishes that the insured must disclose all the facts and circumstances that determine the insurable risk, as set out in the ques- tionnaire provided by the insurer. Recent case law has declared that, in specific cases such as health and life insurance, if, at the moment of the execution of the agreement, the insurer has some facts that may lead them to think that the risk declaration is inaccurate, they must request further information or even undertake specific examinations to assess the risk properly. If the insurer fails to take these additional steps, some judges have interpreted this as a waiver of their right to challenge the policy on the grounds of misrepresentation or non-disclosure. To date, Colombian law has not differentiated between consumer insurance and commercial insurance. Law 1480 of 2011, the Colombian Consumer Statute, establishes that the insurance contract is a consum- er contract. However, in particular cases, case law has recognised specific insurance policies as com- mercial contracts rather than consumer agreements. This distinction has been made where the insured: (i) purchases the policy to cover a risk related to their business; (ii) acquires the policy through an insurance broker; and (iii) seeks to protect the insurable interest of a corporation. Under Article 1046 of the C.Com, the insurer must give the insured a full copy of the policy within 15 days of the contract entering into force and being agreed upon. Law 1328 of 2009 requires insurers to provide the policyholder, the insured, and the beneficiary with all information regarding the insurance contract before execution and during its term. If a third party con- siders that it has any right under the insurance con- tract, Law 1328 of 2009 allows such a third party to request access to the terms of the contract through the Registry of Insurance Policies ( Registro Único de Seguros , RUS), subject to the completion of certain requirements to prove its potential right. This registry
• agricultural insurance; • home insurance; and • group life insurance.
The SFC also has the power to define other business lines that can be offered through the network in the CBJ. Article 2.36.9.1.1 of D.2555 regulates insurers’ abil- ity to offer their services through non-banking cor- respondents ( corresponsales no bancarios ). Non- banking correspondents are entities not supervised by the SFC or any other authority, but which can be connected to the insurer through secure technological networks. They can operate from physical locations, use mobile platforms, or provide services digitally. The contract with the non-banking correspondent must comply with the provisions of Art. 2.36.9.1.11 of D.2555, which requires robust cyber and techno- logical risk management and operational duties for both parties, as well as strict obligations regarding the information provided to the consumer. These con- tracts must be available to the SFC, although no prior authorisation is required. The business lines these correspondents can offer must share the same char- acteristics as the services provided through network usage contracts. However, the list is restricted to the following, according to the CBJ: • compulsory traffic accident insurance; • funeral insurance;
• unemployment insurance; • individual life insurance; • personal accident insurance; • agricultural insurance; • civil liability insurance; • household insurance; • group life insurance; • motor insurance; • earthquake insurance; • surety bonds; • transport insurance; • business interruption; • low-voltage insurance; and • credit insurance.
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