On the sole means:
Whereas, to guarantee the repayment of a loan which had been granted to him by a bank, Gaëtan X … joined in 1990 the group insurance taken out by it with the Generali company and intended to cover the death and disability risks; that, in the application form, he answered in the negative to the questions “do you have any disease?”, “have you received or do you need to follow any regular treatment?” and “Do you have anything else to add concerning your current or previous state of health?”, which to justify a work stoppage as of March 1, 1991 and a state of disability, he handed over to the insurer , for which he requested the guarantee, a medical certificate bearing the mention ” stoppage of work was consecutive to the seropositivity of Gaëtan X …, revealed to the latter during a prenuptial examination in August 1989, requested counterclaim the cancellation of the membership for reluctance or intentional false declaration in application of the Article L. 113-8 of the Insurance Code; that after the death of Gaëtan X … in 1993, the instance was resumed by his wife; stoppage of work was consecutive to the seropositivity of Gaëtan X …, revealed to the latter during a prenuptial examination in August 1989, requested counterclaim the cancellation of the membership for reluctance or intentional false declaration in application of the Article L. 113-8 of the Insurance Code; that after the death of Gaëtan X … in 1993, the instance was resumed by his wife;
Whereas Mrs. X … complains against the judgment under appeal (Rennes, November 9, 1995), to have accepted the counterclaim, then, according to the means, that the seropositivity is not a disease; that therefore, by retaining that her husband, who was not undergoing any treatment, was guilty of reluctance or intentional false declaration for having failed, when applying for membership, to spontaneously report his HIV status to the Generali company, While in the health questionnaire, he was only asked if he knew he had an illness or if he was undergoing special treatment, the court of appeal violated Articles L. 113-2 and L. 113 -8 of the Insurance Code;
But given that the Court of Appeal, which noted that seropositivity is a condition likely to cause, for those who are affected, serious consequences for his health, even fatal, noted that, during his request for adhesion Gaëtan X … had knowledge of his seropositivity, this one having been revealed to him previously; that in the state of these statements and findings, it retained in the exercise of its sovereign power of appreciation, that by answering in the negative to all the questions asked and by letting the insurer believe that ‘he was in good health, Gaëtan X … had, by reluctance or intentional false declaration, modified the opinion for the insurer, of the risk he had to guarantee ; that
From which it follows that the means cannot be accepted;
FOR THESE REASONS :
DISMISSES the appeal.