PORTUGAL Law and Practice Contributed by: Leonor Futscher de Deus, Broseta Abogados, SLP
the insured property’s safe) and/or policy exclusions (specific situations not covered by the insurer, as listed in the policy). Depending on the type of coverage, the risk will be covered by the policy if it is not expressly excluded by the insurer (eg, all risks policies). In the event of a breach of a condition precedent, the insurer may refuse to cover the risk and decline any claims under the policy. 9. Insurance Disputes 9.1 Insurance Disputes Over Coverage Disputes over coverage under an insurance policy are typically addressed, in the first stage, directly to the insurer. If the insurer does not settle the issue or takes too long to do so, the interested party may appeal to the insurer’s customer ombudsman, who acts as a second level of the insurer to complain to. If the interested party’s issue is still not resolved, they may appeal to the ASF, alternative dispute resolution mechanisms and, ultimately, the courts of law. The limitation period for interested parties to start a court proceeding against the insurer is five years after the date on which the claimant became aware of their rights (with a maximum limitation of 20 years starting from the date the event occurred). Unnamed beneficiaries and any injured third parties may enforce an insurance contract provided they prove the legitimacy of their interest. 9.2 Insurance Disputes Over Jurisdiction and Choice of Law As a general rule, the Insurance Contract Law pro- vides for freedom of choice for the parties with regard to the law applicable to the contract, provided that the choice of applicable law falls within jurisdictions whose applicability corresponds to a serious interest of the parties or is connected with any of the elements of the policy that are relevant in the field of private international law. The exception concerns compulsory insurance under Portuguese law (eg, motor vehicle liability insurance
and work accident insurance). In such cases, Portu- guese law shall mandatorily apply. The parties are also free to choose the jurisdiction in which to solve disputes concerning an insurance policy. The exception in this case regards consumer contracts, in which case the Portuguese Civil Proce- dure Code’s general rules shall apply. In case of cross-border insurance, the provisions set out in Regulation (EC) No 593/2008 of 17 June 2008 (Rome I Regulation on the law applicable to contrac- tual obligations) and Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 (on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters) shall apply, without prejudice to the rules set forth in the Portuguese Civil Procedure Code, which determine jurisdiction of Portuguese courts of law. 9.3 Litigation Process The litigation process for resolving disputes arising from an insurance contract usually follows the stand- ard procedural framework, as outlined below. • Filing of the claim – the claimant initiates the pro- ceeding by submitting a statement of claim before the competent court. • Response by the defendant – upon service of the claim, the defendant is afforded a period to submit a statement of defence. • Preliminary hearing – the court subsequently sum- mons the parties to a preliminary hearing, during which an attempt is made to facilitate an amicable settlement. Failing such agreement, the proceed- ings continue, and the court schedules a date for the final hearing. • Final hearing – at the final hearing, each party pre- sents its witnesses, experts, and any other admis- sible evidence, which is examined and discussed. Thereafter, the parties deliver their closing argu- ments, following which the judge concludes the session. No statutory deadline is imposed on the court for the issuance of its judgment. • Appeal – in certain circumstances, and provided that the applicable legal requirements are satisfied, the parties may lodge an appeal before a higher court.
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