El Salvador: How Does the Pandemic Declared by the WHO Affect the Coverage of my Insurance Policies? 

March, 2020 - Diego Martin

It is normal that an insurance contract does not cover all the different events that are part of the entire risk, since this would imply that the contract was becoming more expensive every day, in the face of the appearance of catastrophic risks or risks that due to different factors do existed before. In this sense, the delimitation of the scope of the insurance contract becomes an important situation to analyze. This delimitation can be carried out in two ways: a) in a positive sense, that is, expressly mentioning the risks that are covered, or in a negative way, that is, expressly referring to the risks that are excluded from the coverage [ 1] .

Exclusions of coverage, or in other words, non-insurance or non-guarantees are those made in advance by the insurer and informed in the policy to the insured, as excepted from the covered risk. There is a manifest will of the insurer not to cover said risk on the understanding that not having taken charge of it implies that it has not received a premium for it [2] .

Our law does not refer to the coverage, scope and exclusions that each type of diffuse insurance policy must have, so it is normally the insurer who establishes them, with the particularity for our case, which will be the Superintendency of the System. Financial (SSF) that reviews if they do not contravene the norms established in the law and in conjunction with the Ombudsman of the Consumer that determine that they do not violate consumer rights. From the above, we can assure that both coverage and exclusion must be formally established by law or expressly stipulated in the policy.

Before the declaration by the World Health Organization (WHO) by means of which it already considers the outbreak of the new coronavirus (COVID-19) as a pandemic. According to a BBC publication [3] , those who interviewed the academic infectious diseases specialist at the London School of Hygiene and Tropical Medicine, Rosalind Eggo, the differences between epidemic, pandemic and endemic are the following:

  1. Endemic infection is present in an area permanently, at all times for years and years. An example is chickenpox in many countries, where cases are recorded every year. Or malaria, which in parts of Africa is an endemic infection;

  2. An epidemic is "an increase in cases followed by a peak and then a decrease." The expert explains what happens in countries where flu epidemics are registered every year: in autumn and winter cases increase, a maximum of infections is reached and then it decreases.

  3. Finally, the pandemic is an epidemic that occurs "around the world at more or less the same time." According to its meaning in the dictionary of the SAR, it is "an epidemic disease that spreads to many countries or that attacks almost all the individuals of a locality or region."

If we review our health policies, insurers normally include among their express exclusions the same or very similar text to the following:

"For epidemics declared by the Ministry of Health or by the homologous entity in any other country where the Insured is "

Based on this simple exclusion, medical expenses derived from becoming ill with the COVID-19 virus could result in the insurer not covering the event, which could be a significant violation by the insurer, to the rights of the insured by the following reasons:

  • In El Salvador, the WHO is not the authority empowered to declare an epidemic. In accordance with the Health Code, it is the Executive Body in the Public Health Branch, who has the power to declare an epidemic area subject to sanitary control, any portion of the national territory that said Body designates and will adopt the extraordinary measures that it advises and for as long as it indicates, to prevent danger, combat damage and prevent its spread (Art. 139 Health Code). Such declaration must be made by means of an executive decree. A simple verbal statement from a health authority, or from the President himself is not enough for this.

  • Decree No. 12 issued by the Council of Ministers on the eleventh day of March in the year two thousand and twenty does not expressly declare the epidemic. It takes the floor in Art. 1 of the decree, but it is not an epidemic declaration per se. This decree declares the state of emergency.

  • The last epidemic that was apparently decreed by the Executive Branch in the Public Health Branch was the "Dengue epidemic" of September 2000. We say "apparently", because there was no express decree declaring the epidemic either, but there was a executive decree (No. 85 published in Official Gazette # 178, Volume No. 348. dated September 25, 2000) by means of which the Ministry of Public Health and Social Assistance created the “Commission for the reception and channeling of aid from national and international donors, Governments, Agencies and International Organizations to attend to the population that is being affected by the Dengue Epidemic ”

In this sense, our legislation imposes on the insurer other types of obligations, which are more related to the protection of the insured as a consumer. Article 19 of the Consumer Protection Law (LPC) imposes obligations on the insurer as a provider of a class of financial services (in particular, because insurance companies in El Salvador are part of the local financial system and are regulated by the SSF). Among the main obligations that an insurance company must fulfill we can mention: 1) Provide in a clear, truthful and timely manner all the information and explanations that the insured requires in relation to the service that the insurer offers;

Therefore, it is important to know well the rights, obligations, coverage and exclusions that emanate from our insurance policies, and both the insured and the insurer must try to act in good faith, which is one of the most important principles of the relationship of the parties in the insurance contract. What this principle of good faith implies is that the parties must always act with rectitude, loyalty, correctness and accuracy. That is, showing a mode of behavior or a rule of conduct that is based on security, trust and collaboration between the parties, both in the initial configuration of the contract and in the faithful fulfillment of the obligations that arise from it.

It is also important to know, the current status of an epidemic declaration by the competent authority, to determine with full conviction, whether an insurance policy that has the exclusion that we have referred to before, would cover or not the occurrence of the incident, that is, the reimbursement of medical expenses derived from becoming ill with the COVID-19 virus.

For more information, you can contact us at [email protected] , or through our social networks.




[1] Vid. CARMONA RUANO, M., “The defining clauses and the limiting clauses of the Insurance Contract”, in AAVV, Revista Española de Seguros, Number 89, Official Body of the Spanish Section of the International Association of Insurance Law (AIDA), Madrid , 1997, pp. 69 - 110. The author explains to us that the covered risk is understood as the birth of the obligation to indemnify as a consequence of the occurrence of a claim of the fact provided in the insurance contract. Conversely, the exclusion would be the existence of a risk for which the insurer is not committing itself, and therefore, not receiving a premium for it.

[2] Vid. KEMELMAJER DE CARLUCCI, A., “The silence of the insurer in the face of the claim of the loss”, in AAVV, Law of Insurance, coordinated by BARBATO, NH, Hammurabi, Buenos Aires, 2001, pp. 180 - 199. We agree with the author when she explains that the insurance contract must mention the insured risk, through a clause that refers to it in a generic way. After that, various hypotheses are indicated that restrict the scope in which the coverage granted will be governed. Thus, determining the risk in the insurance policy involves two phases. The first, when it is individualized. The second, when it is specifically defined. Vine. STIGLITZ, RS, "Insurance Law", Volume I, Third Edition, Abeledo Perrot, Buenos Aires, 2001, p 439. The author explains that the exclusions are hypotheses formally and expressly established in the law and the policy that exclude from the guarantee the claims that occur on the object in the cases that have been conventionally foreseen.

[3] Vid. https://www.bbc.com/mundo/noticias-51235995

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