In this issue, we will discuss two recently issued rulings on the following topics: a) the modification of a precautionary measure due to the outcome of a non-finalized first instance judgment, and b) the importance of evidence in traffic judgment executions.
a) Modification of Precautionary Measure
The basis for this report is a ruling issued by an Appellate Court in an ordinary process, in which a claim for damages against a foreign company is being discussed. Specifically, the situation being resolved by the Superior Court was a request by the defendant to cancel or modify the provided guarantee. The defendant justified their request based on a change in the conditions of the precautionary measure due to the dismissal of the plaintiff’s claim in a first instance judgment.
The remarkable aspect is that the first instance judgment, which dismissed the case and serves as the basis for the defendant’s request, has not gained finality (it is awaiting resolution of the cassation appeal filed by the losing party). Given this scenario, it could be argued that the plaintiff’s request for a precautionary measure is not appropriate (lack of appearance of a good right) since the appellate court reviewing the cassation appeal may overturn the decision of the first instance court and grant the claim. Therefore, it is necessary to maintain the precautionary measure unchanged. This was the position of the court that first considered the defendant’s request.
However, the Second Appellate Court, First Section, in ruling 783-2021 at 13:28 hours on December 9, 2021, made a novel analysis and determined that the outcome of the first instance judgment (dismissal of the claim) impacted the assessment of verisimilitude and probability of the plaintiff’s claim. This allows for an adjustment of the amount of the provided guarantee based on the mutability principle and the principles of reasonableness and proportionality of precautionary measures.
The following excerpt from the ruling highlights how the court relates its powers and the particularities of the case that justify the modification of the precautionary measure:
“Accordingly, the judicial body has the power to calibrate preventive protection, based on the principles of variability, temporality, and quantitative instrumentality mentioned above. The functional competence attributed and what represents, as a new circumstance, the news of a dismissive judgment understood as a legal fact, allow it at this appellate instance (Articles 7.4, 65.6, 67.3.7, 79, and 81 of the Civil Procedural Code and vote #510-21 of this Section I as a precedent).
VII. Therefore, due to the modification of the original circumstances that led to the decree of the guarantee, with the verisimilitude assessment and the appearance of a good right of the precautionary protection rendered in the sub-litem case diminishing, as well as taking into account the indemnification claims made by the plaintiff, a prudent reduction of the guarantee is decreed…” (emphasis added).
The decision of the Appellate Court sets an important precedent since in future cases, it may be possible to challenge the precautionary measures granted at the beginning of the process to the losing party (including the provision of a guarantee), so that the precautionary measure does not remain unchanged until the case becomes final, but can be modified if circumstances justify it.
b) The Importance of Evidence in Traffic Judgment Executions
In traffic cases, it is common for the responsible party for an accident to be condemned to pay abstract damages and losses to the opposing party. Therefore, the winning party must pursue the respective execution of the judgment in order to obtain economic compensation for the damages suffered.
In the process of executing the judgment, it is crucial for the interested party to prove that the claimed damages were a consequence of the collision.
b) The importance of evidence in traffic sentence executions
In traffic cases, it is common for the responsible party of the accident to be sentenced to pay damages and losses to the opposing party in abstract. Therefore, the winning party must initiate the respective execution of sentence to pursue the economic compensation for the suffered damages.
In the process of sentence execution, it is crucial for the interested party to prove that the claimed damages were a consequence of the collision. This is because the abstract sentence itself does not guarantee the acceptance and approval of the damages settlement the interested party intends to claim.
Hence, the importance of evidence, as highlighted in vote number 759, issued by the Second Court of Civil Appeals, Second Section, at 17:07 on November 30, 2021. In the mentioned resolution, the Court considered that it is not appropriate to claim the payment of the deductible in a generic manner without accompanying the claim with its corresponding evidence. Regarding this matter, the Court stated:
“….In this regard, the appellant is correct because, as alleged in their arguments, there is no evidence that proves the damages suffered by the claimant’s vehicle, there is no assessment, and the submitted documents do not meet the evidentiary burden imposed by Article 41.1, Clause 1) of the Civil Procedure Code. For example, if ‘labor’ is recorded, it must be specified for what purpose it was required, what damage had to be repaired with said labor. It is not appropriate to generically charge a deductible without further evidence of the damage, as it hinders the opposing party’s right to defense. The claimant did not specifically identify in their execution claim the concrete damages suffered by the vehicle in the accident that led to the abstract traffic conviction. They simply refer to the payment of the deductible. In this allegation, there is a lack of specific determination of all aspects that would have led to establishing the claimed deductible. It should be noted that if there is insurance that potentially covers the damages suffered in a traffic accident, it must first be proven which damages are supposedly covered by the insurance so that the opposing party can verify their validity (that they were truly caused by the accident and if the granted amount is correct)…. The most relevant aspect is that it does not indicate what the damages consisted of, nor which insurance company would eventually be paid the deductible. It is even less mentioned what the total amount of repairs and replacements would be, or the percentage that should be deducted from them… There is no glimpse of even evidence of the damages, which had not been properly identified, specifically and in detail, as required by Article 146 of the Civil Procedure Code. It must be clarified that the deductible is not an independent damage per se, but a consequence of its compensation. First, if the vehicle is covered by an insurance policy, it must be determined if the specific damage is covered, the total amount for repairs, and, if there is a clause to that effect, the partial amount that the insured party must assume from that total. That amount is known as the deductible, which corresponds to the partial value of the damages not covered by the insurer. Here, it is reiterated that there is not even evidence of the covered damage, thus, without complying with the specific and detailed settlement of the damages, the requested deductible cannot be granted…” (Underlining is not from the original text).
As we can see, in this case, it was not sufficient to claim that the deductible had been paid; it was necessary for the interested party to demonstrate, with appropriate evidence, the relationship between that deductible and the accident.
Regarding the evidence that the interested party could have provided, it could have been useful to submit a certified copy of the insurance company’s administrative file regarding the claim, after ensuring that the administrative file includes elements such as: a description and amount of the repairs, a technical report justifying the repairs due to the collision, the breakdown and evidence of expenses for spare parts and labor, as well as documentation proving the amount and justification of the deductible, among others.
Clearly, the aforementioned jurisprudential precedent serves as a reminder for drivers and vehicle owners involved in a collision, as it is essential to gather the evidence elements that allow for a more successful execution of the sentence. It is important to note that we are not only referring to the quantity of evidence but also to the relevance and suitability of the evidence to prove the damages claimed in the stage of traffic sentence execution.
Litigation & Arbitration Department. You can contact us through the following email addresses:
Andrés Martínez Chaves, amartinez@consortiumlegal.com.
Jose Pablo Valverde Marín, jvalverde@consortiumlegal.com.
Gerald Hoffman Guillen, ghoffman@consortiumlegal.com.
Josué Barahona Vargas, jbarahona@consortiumlegal.com.