Introduction
In Peru, the Mandatory Traffic Accident Insurance (SOAT) plays a crucial role in protecting traffic accident victims. As it is mandatory for all motor vehicles, its purpose is to ensure that individuals involved in an accident, whether they are occupants of the insured vehicle or non-occupant third parties, receive medical care regardless of responsibility for the event, due to its immediate and unconditional nature.
Within the SOAT framework, one of the most complex and debated issues is the scope of the term "non-occupant third party." This matter is particularly relevant in situations where a vehicle involved in an accident lacks SOAT coverage. Can the insurance company provide coverage to the occupants of such a vehicle? To address this question, it is essential to analyze the Peruvian regulations governing the SOAT. The objective of this analysis is to clarify the scope of the SOAT, contributing to a better understanding of the legal framework and its application in Peruvian insurance law.
The Issue of the "Non-Occupant Third Party"
Consider a collision between two vehicles, each with its respective SOAT, where not only the occupants of each vehicle (driver and passengers) are injured, but also a pedestrian. As a result, the victims request SOAT coverage, which is legally defined. How should SOAT coverage be provided in this scenario? The answer lies in two specific regulations: (i) Article 30, section 30.2 of Law No. 27181, General Law of Land Transportation and Traffic, which establishes that SOAT covers all persons, whether occupants or non-occupant third parties, who suffer injury or death as a result of a traffic accident, and (ii) Article 17 of Supreme Decree No. 024-2002-MTC, National Regulations on Civil Liability and Mandatory Traffic Accident Insurance, which explicitly states that "In the case of traffic accidents involving two or more vehicles, each insurance company shall be responsible for compensations corresponding to the individuals transported in the vehicle it insures." This is based on the premise that all motor vehicles circulating in national territory must have an active SOAT policy.
But what happens in the case of an accident involving two vehicles where only one is covered by a valid SOAT? Should the sole insurance company provide coverage for all the occupants of the uninsured vehicle? There have been several rulings on the scope of Article 17 of the SOAT Regulations. On one hand, the National Institute for the Defense of Competition and Intellectual Property (INDECOPI) — sometimes by majority vote — has ruled that SOAT coverage should always be provided to all injured parties, including those occupying a vehicle without SOAT. On the other hand, the judiciary — though not uniformly — has argued that SOAT has limits, specifically that it only covers occupants of the insured vehicle and non-occupant third parties, considering pedestrians or bystanders as non-occupants, but not the occupants of an uninsured vehicle.
In this article, we will analyze the scope of SOAT regulations, particularly Article 17 of the Regulations, to explain why SOAT does not extend coverage to the occupants of an uninsured vehicle.
Rulings on the Scope of Non-Occupant Third Parties and the Extension of SOAT to Uninsured Parties: A Divergence Between INDECOPI’s DEFASEG and the Judiciary
In this regard, there are multiple pronouncements on what the figure of ‘non-occupying third party’ should include and there is no uniformity at present on its scope.
INDECOPI in Resolution N° 0062-2013/SPC-INDECOPI, when analysing article 17 of D.L. 024-2002-MTC, held that in the absence of the insurer in one of the vehicles, the insurer that will assume the payment will be ‘the one with which the policy of the vehicle that did have SOAT was contracted’, and the insurer must then go against the jointly liable parties to request the reimbursement of the payments that it would have made in favour of the injured parties. According to INDECOPI, ‘non-occupant third parties’ are those who are occupants of the other intervening vehicle that does not have SOAT. However, this pronouncement has a dissenting vote that establishes that the category of non-occupant third party excludes the occupants of an uninsured motor vehicle.
In Resolution N° 0274-2019/SPC-INDECOPI, INDECOPI argued that: (i) the purpose of the SOAT is to provide immediate coverage to all victims of a traffic accident, (ii) there are different interpretations of Article 17 of the SOAT Regulation, but that this rule should be read systematically and when in doubt, a ‘pro-consumer’ interpretation should be chosen. In this procedure, there was also a dissenting vote in which it was held that the compensation of the victim occupant of the vehicle without SOAT is joint and several towards those responsible for the event. In Resolution N° 0771-2022/SPC-INDECOPI it was decided that the insurer, when paying compensation to the occupants of the vehicle without SOAT, can exercise the right of recourse against the owner, driver and provider of the transport service, who are expressly considered jointly and severally liable.
In 2023, a surviving spouse sued an insurance company for unjustified refusal of SOAT coverage, while her spouse was on board the other vehicle without SOAT. In this case, Resolution N° 0188-2023/SPC-INDECOPI was issued in which, maintaining the same criterion of providing coverage to the occupants of the vehicle without SOAT, INDECOPI decided to declare the complaint well founded, arguing with respect to article 17 that ‘in order for the rule to provide for a reimbursement in favour of a company, it must necessarily be assumed that the insurer of the vehicle with SOAT has provided coverage to the occupants of the vehicle without SOAT’.
The DEFASEG in Resolutions N° 062/10 and 074/20, stated that when two vehicles are involved in an accident and only one of them has SOAT, it cannot be deduced from the regulation that the insurer that does have SOAT will be the one to grant coverage in favour of the occupants of the uninsured vehicle ‘such a conclusion is alien not only to the legal text but also to the logic of insurance in which the premium is structured according to the insured risk, being that such interpretation would generate a disincentive to contract the SOAT’. Resolution N° 039/19 identifies that there are differences between vehicle occupants and non-occupants, the latter being ‘a pedestrian or a third party travelling in a non-automotive vehicle (bicycle, etc.)’. This being so, it is established that ‘the occupants of a vehicle that should have had a SOAT, can take action against the owner or driver of the vehicle who should have been concerned about having a valid SOAT’. In Resolution No. 071/2020, the Supreme Court of Justice issued Case No. 10192-2016, which concluded that ‘insurers must provide coverage to the third party occupants of the vehicle that did not have a SOAT’; however, DEFASEG highlights that this ruling is not binding and does not constitute a precedent of mandatory observance, adding that it was even issued with a dissenting vote, so it departs from that ruling because it considers that it is not appropriate to provide coverage for the occupants of a vehicle that is not insured.
In Cassation N° 12291-2014, the Supreme Court stated that a ‘more favourable interpretation should be made and that if an accident occurs where a vehicle does not have SOAT, then the expenses and compensation will be assumed by the SOAT of the vehicle that also participated “since the victim will have the category of a third party non-occupant of the vehicle”. On the contrary, in Cassation N° 9147-2016, it was concluded that non-occupant third parties are those third parties outside the vehicles that participated in an accident, which does not apply to the deceased subject because he was the occupant of a motorbike that was his property and he was obliged to have a policy. There are multiple other pronouncements on the matter with dissimilar positions.
Final Thoughts: Scope of Article 17 of the SOAT Regulations and the Denial of Coverage to Uninsured Vehicle Occupants
From the aforementioned rulings and others issued by the courts of the Judiciary, it can be seen that those who argue in favour of providing coverage to the occupants of a vehicle that does not have a SOAT mainly resort to the finalist or teleological interpretation of the SOAT regulations (first argument); that Article 16 of the Regulation indicates that the exceptions directed against the SOAT policyholder are not opposable to the victims and their beneficiaries (second argument), there are even resolutions that refer to Articles 2 paragraph 1 and 7 of the Political Constitution of Peru (third argument) or that there are sanction mechanisms for those who do not contract the SOAT (fourth argument). However, none of these arguments are valid in light of the reading of the SOAT regulation.
Regarding the finalist interpretation of the SOAT regulation, we must point out that although the purpose of its application is to find the purpose of the regulation, the fact is that its invocation does not allow the creation of new legal obligations that are not supported by the legal text. In Peru, the SOAT regulation is clear and establishes the obligation to contract the SOAT for all vehicles circulating in the national territory and establishes that this insurance provides coverage for occupants and non-occupant third parties. In this sense, invoking the pro-consumer principle is not applicable either, because we are not dealing with a dubious or ambiguous ‘clause’, but rather with the express text of the regulation.
The second argument is not valid either, since Article 16 refers to enforceability with respect to the policyholder, i.e. with respect to the person who has contracted cover. With regard to the third argument, we must point out that they are not applicable because the ‘right’ must be understood in terms of standing and that, in this case, it derives from an insurance contract.
Regarding the sanctions for not having SOAT, we must point out that there are differences between providing coverage based on a contractual obligation -precisely by contracting SOAT- and an administrative sanction. The insurer can only be obliged within the limits and conditions established in the insurance that has been effectively contracted by the insured and cannot be obliged to extend coverage in favour of those who have not complied with taking out insurance because the law has not created such an obligation. Likewise, administrative infractions are only directed towards those who fail to comply with the legal obligation to contract the SOAT (fine of 12% UIT for driving without SOAT), so the administrative sanction cannot be equated with the fact of being civilly liable for the damages caused. The latter not only responds to a compensatory obligation, but also -unlike the fine- generates a disincentive effect towards the non-contracting party of the SOAT.
It is worth mentioning that the Administrative Directive N° 2010-MINSA-DGSP.V.01 Administrative Directive for the care of patients who are victims of traffic accidents covered by the Compulsory Traffic Accident Insurance (SOAT) or the Certificate against Traffic Accidents (CAT) in the Public Service Provider Institutions (IPRESS) of the Ministry of Health and Regional Governments develops the definitions of third party non-occupant and third party occupant, indicating that the latter includes the person who is outside the referential vehicle but inside another motor vehicle (motorcyclist, driver of another car, passenger of another car).
How then should Article 17 of the Regulation be applied? Article 17 provides for three (3) fundamental ideas:
First, it establishes the general framework where each insurance company is liable for indemnities in respect of the persons transported by the insured vehicle (this is validated by reading Article 30, numeral 30.1 of Law N° 27181).
Secondly, it is established that in the case of third-party non-occupants (pedestrians), the insurance companies are jointly and severally liable for the indemnities and, therefore, have the right to repeat one with respect to the other in case one of them has paid the indemnity. This conclusion drawn from the second and third paragraph of Article 17 is relevant because it allows understanding the fourth paragraph: if the legislator had intended the insurers to provide coverage for the occupants of the uninsured vehicle or ‘third party occupants’, this would have been expressly regulated in the SOAT regulations; however, the solidarity is intended for non-occupants (pedestrians or bystanders), but not for the ‘third party occupants’ of the uninsured vehicle. It is not possible to extend solidarity to insurance companies with respect to third party occupants if the regulation itself does not expressly establish it; such a reasoning contravenes Article 1183 of the Peruvian Civil Code and Article I of the Insurance Contract Law which establishes that coverage, exclusions and the extension of the risk must be interpreted literally.
Third, if any of the vehicles does not have SOAT, this does not result in the victim's helplessness, since the driver, the owner and the transport service provider will be jointly and severally liable. Thus, if the insurer of unit 1 pays an indemnity in favour of the third party non-occupant in which case there is solidarity between the insurers, as there is no insurer of unit 2, the insurance company that paid the indemnity can repeat in its proportion against the driver, the owner and the transport service provider responsible. It would be contrary to the very ratio essendi of the rule if this same scenario were also considered applicable to, for example, the driver of the vehicle in unit 2. In other words, would the insurer of unit 1 have to pay the costs of medical care for the driver of unit 2 by virtue of a (denied) legal solidarity, in order to then repeat against the driver of unit 2?
It should be pointed out that the interpretation and application indicated above does not affect the purpose of the SOAT, since the legislator has established in article 17 that it is possible to take action against those responsible, which is in accordance with the provisions of article 1969 of the Civil Code.
Finally, it cannot be overlooked that the SOAT responds, as any other insurance, according to the risk covered. For this reason, considering that SOAT coverage should be provided not only in favour of those who the law expressly recognises a right, but in an extensive manner and even in favour of the driver who did not contract the SOAT generates perverse effects in the market and in society in general.