OWNER'S RC INSURANCE
LexInter | April 29, 2003 | 0 Comments

OWNER’S RC INSURANCE

CIVILIAN BULLETIN.

On the appeal brought by Mr. Richard Queguiner, residing in La Croix Ploujean, 29201 Morlaix,

in cassation of a judgment rendered on December 10, 1997 by the Rennes Court of Appeal (7th Civil Chamber), in favor of:

1 ° / of the company Axa assurances, headquartered at 1, place du Dossen, 29201 Morlaix,

2 ° / of the Primary Health Insurance Fund (CPAM) of Nord-Finistère, headquartered at rue de Savoie, 29200 Brest,

3 ° / of Mrs. Marie-Thérèse Siohen, wife Le Noan, residing at 1, rue du Varcq, 29241 Locquirec,

4 ° / of Mr. Jean Louet, residing at 1, rue de Kerfraval, 29201 Morlaix,

defendants in cassation;

The applicant invokes, in support of his appeal, the four grounds of cassation annexed to this judgment;

Means produced by the SCP Waquet, Farge and Hazan, lawyer with the Councils for Mr. Queguiner;

FIRST MEANS OF BREAKING:

IT IS COMPLAINT with the judgment under appeal to have confirmed the referred judgment which declared Mr QUEGUINER responsible for the damage suffered by Mrs LE NOAN on August 26, 1993 by application of the provisions of article 1382 of the Civil Code, sentenced Mr QUEGUINER to repair all of his damage, ordered an expert report, ordered Mr QUEGUINER to pay Mrs LE NOAN a provision of 30,000 F to be used against his damage, and Mr QUEGUINER dismissed for his claims against his insurer, the company AXA ASSURANCES,

FOR THE REASONS THAT, deprived of any right to occupy the building on the date of August 26, 1993, Mr. QUEGUINER committed a fault by undertaking major demolition work of it during the transfer, while, simple precarious holder of the keys, he abused the situation since he did not communicate any document indicating that his plan to demolish the partitions was known to the liquidator, the owner or the notary, or even authorized by them, and whereas he did not did not take precautions to warn possible visitors of the danger incurred, and that if the LE NOAN consorts rushed to the scene in large numbers to recover certain effects, it is because they had not been notified before this date of the planned demolition; that from the moment when Mr QUEGUINER is sentenced on the basis of article 1382 of the Civil Code, it is irrelevant to determine whether the unilateral offer to purchase was accepted on July 15, 1993 and whether the transfer of ownership was retroactive. , under article 1179 of the Civil Code; that the authorization of the judge commissioner is not worth manifestation of an exercise of option by the party which had quality to decide on the purchase offer, namely the liquidator; that the latter’s request to the judge commissioner in order to be authorized to sell the property by mutual agreement does not have this scope either; that in reality, the loan having been accepted in September, carrying lifting of the condition precedent, it is from this date that the liquidator had interest in lifting the option; of

ALORS, ON THE ONE HAND, THAT the transfer of an element of the assets of a debtor in compulsory liquidation is perfect from the order of the judge commissioner, in this case of July 13, 1993, authorizing the sale by mutual agreement to willing on the condition that the decision acquires the force of res judicata, without it being necessary that the liquidator still proceeds, following this authorization, to a manifestation of the will to exercise the option; that thus the Court of Appeal violated article 154 paragraph 3 of the law of January 25, 1985;

ALORS, ON THE OTHER HAND, THAT the condition fulfilled has a retroactive effect to the day to which the commitment was contracted; that thus, and in the absence of any contrary stipulation in the offer of Mr. QUEGUINER or in the order of the judge commissioner, the transfer of ownership took place, at the latest, when the notification to Mr. QUEGUINER of the ‘loan offer involving fulfillment of the condition precedent, retroactively to the date of the order of the judge-commissioner authorizing the sale by mutual agreement confirming the sale; that in deciding that Mr QUEGUINER would have acquired the quality of owner only on September 30, 1993, date of the notarial act, the Court of Appeal violated Article 1179 of the Civil Code;

THEN, FINALLY, THAT the acts performed by Mr. QUEGUINER while the condition was pending were validated on the date of the fulfillment of the condition, by retroactive effect, on the day of the order authorizing the transfer of the transfer of property , of this condition; that by qualifying these same acts thus validated as wrongful, the Court of Appeal again violated articles 1179 and 1382 of the Civil Code.

SECOND MEANS OF TERMINATION:

IT IS COMPLAINT with the judgment under appeal to have confirmed the referred judgment which declared Mr QUEGUINER responsible for the damage suffered by Mrs LE NOAN on August 26, 1993 by application of the provisions of article 1382 of the Civil Code, sentenced Mr QUEGUINER to repair all of his damage, ordered an expert report, ordered Mr QUEGUINER to pay Mrs LE NOAN a provision of 30,000 F to be used against his damage, and Mr QUEGUINER dismissed for his claims against his insurer, the company AXA ASSURANCES,

FOR THE REASONS THAT, deprived of any right to occupy the building on the date of August 26, 1993, Mr. QUEGUINER committed a fault by undertaking major demolition work of it during the transfer, while, simple precarious holder of the keys, he abused the situation since he did not communicate any document indicating that his plan to demolish the partitions was known to the liquidator, the owner or the notary, or even authorized by them, and whereas he did not did not take precautions to warn any visitors of the danger incurred, and that if the LE NOAN consorts rushed to the scene in large numbers to retrieve effects, it is because they had not been notified before this date of the planned demolition;

THEN, ON THE ONE HAND, THAT the purchaser is not at fault who, at a date on which he is the only one to be able to question the sale consecrated by the order of the judge commissioner by invoking a possible failure of the condition suspension stipulated in its sole favor, undertakes without the authorization of the seller renovation work on the building, object of the sale, and of which it has regular possession, without waiting for the regularization of the sale, but nevertheless after declaration of work , and after taking care to ensure; that thus the Court of Appeal violated together Articles 1179 and 1382 of the Civil Code;

THEN, ON THE OTHER HAND, THAT does not commit any fault the owner of a private site located inside a locked building, which does not report on the spot, to visitors that it does not not wait for the existence of work in progress and possible dangers; that by attributing such a fault to Mr QUEGUINER, of which it is not even noted that he was himself informed of the existence of rubble presenting a danger, and who could not guess that Mrs LE NOAN had kept a duplicate keys and was going to go to the premises, the Court of Appeal violated article 1382 of the Civil Code;

THEN, MOREOVER, THAT the proof of the fault lies with the one who invokes it, so that it is to Mrs LE NOAN that it was incumbent to demonstrate that Mr QUEGUINER, who obtained the delivery of the keys of the building by the notary, would not have informed anyone of his intention to proceed with the work; that by placing the risk of this evidence on the exhibitor, the Court of Appeal violated article 1315 of the Civil Code.

THIRD MEANS OF BREAKING:

IT IS COMPLAINT with the judgment under appeal to have confirmed the referred judgment which declared Mr QUEGUINER responsible for the damage suffered by Mrs LE NOAN on August 26, 1993 by application of the provisions of article 1382 of the Civil Code, sentenced Mr QUEGUINER to repair all of his damage, ordered an expertise, and ordered Mr QUEGUINER to pay Mrs LE NOAN a provision of 30,000 F to be used against his damage,

FOR THE REASONS THAT Mr. QUEGUINER cannot impute to Mrs. LE NOAN any fault, such as to justify the rejection of the latter’s requests, while refraining from communicating himself any document worth the beginning of proof that Mr. LE NOAN knew his intentions, had implicitly supported or approved them by handing him the keys to the building;

THEN, ON THE ONE HAND, THAT by entering, in the evening, without authorization, into a building without electricity, which, if it did not yet belong to Mr. QUEGUINER, then belonged to his only husband , and was part of a judicial liquidation procedure involving the relinquishment of the debtor owner in favor of a liquidator, building whose possession had also been transferred to Mr. QUEGUINER by the handing over of the keys, in order to recover alleged objects be part of the liquidation procedure, Mrs LE NOAN committed a fault at the origin of her own damage, such as to exonerate, in whole or in part, Mr QUEGUINER of his alleged responsibility; that thus the judgment under appeal violated Article 1382 of the Civil Code;

THEN, ON THE OTHER HAND, THAT the alleged fault of Mr. QUEGUINER, in that he would not have informed Mr. LE NOAN of his intentions to carry out work, had no causal link with the fall of Madame LE NOAN on rubble located between two rooms, inside the building, because it belonged to Madame LE NOAN, who entered in the evening a building clearly under construction and devoid of electricity, to immediately give up her plan, or else, as soon as she persisted in her business, to beware of the dangers which necessarily resulted from it, and in particular the probable presence of rubble; that thus the judgment under appeal violated Article 1382 of the Civil Code;

THEN, FINALLY, and in any event, THAT it is by no means certain that the information relating to the existence of work in the building, and which had to be given only to the notary, to the liquidator or to Mr LE NOAN, would have been retransmitted to Mrs LE NOAN, or that Mrs LE NOAN, duly informed, would have given up her plan to go at night to a building under construction without electricity, or even that she did not ‘would not have fallen onto the pile of rubble, so that the alleged fault of Mr. QUEGUINER, based on the lack of information from these people, did not constitute the sine qua non of the damage, with which it did not present any connection. direct and certain causality; that thus the contested judgment further violated Article 1382 of the Civil Code.

FOURTH MEANS OF TERMINATION:

IT IS COMPLAINT with the judgment under appeal to have confirmed the referred judgment which declared Mr QUEGUINER responsible for the damage suffered by Mrs LE NOAN on August 26, 1993 by application of the provisions of article 1382 of the Civil Code, sentenced Mr QUEGUINER to repair the entirety of his damage, ordered an expert report, ordered Mr. QUEGUINER to pay Mrs. LE NOAN a provision of 30,000 F to be valued against his damage, and to have dismissed Mr. QUEGUINER of his claim against his insurer, the company AXA INSURANCE,

FOR THE REASONS THAT the policy covers the subscriber in his capacity as owner of the building whose responsibility would be engaged on the basis of article 1384 paragraph 1 of the Civil Code; that Mr QUEGUINER was not condemned with regard to Mrs LE NOAN as owner of the building, a quality that he did not have until the authentic deed of sale was signed, consecrating the lifting of the offer to purchase by the liquidator, which could not result from the order of the commissioner authorizing the sale by mutual agreement; that it matters little that the fulfillment of the condition precedent for obtaining the loan is retroactive; that Mr. QUEGUINER was not convicted on the basis of article 1384 paragraph 1, but for personal fault since he had undertaken, in the building of which he was not yet the owner, work without the authorization of the seller; that the insurer is not contractually bound to grant him the guarantee for a risk realized on a date on which his quality of owner, basic condition of the risk cover, was not acquired, and where his civil liability in property owner of the building could not in law be engaged by anyone;

ALORS, ON THE ONE HAND, THAT the retroactive nature of the condition precedent carried out entails the validity of acts accomplished before said achievement; that thus the insurance contract taken out by Mr. QUEGUINER as owner of the building, with effect from July 27, 1993, was to cover the harmful consequences of the fall of Mrs. LE NOAN subsequent to this effective date, on the basis of the risk “liability as owner”, irrelevant whether the insurance contract was concluded on a date on which the condition and hence the transfer of ownership had not yet been fulfilled; that thus the Court of Appeal violated article 1179 of the Civil Code;

THEN, ON THE OTHER HAND, THAT, far from limiting the civil liability guarantee of the insured to his responsibility as custodian of the thing, within the meaning of article 1384 paragraph 1 of the Civil Code, the policy taken out by Mr. QUEGUINER with the company AXA ASSURANCES stipulates, without distinction between the bases of this responsibility, that the civil liability guarantee as owner covers “the damage caused to third parties, when they involve the responsibility of the insured and they result directly from by virtue of the immovable property and the contents as well as the courtyards, gardens, plantations, and all interior or exterior installations “; that it follows from the findings of the Court of Appeal that the fall of Madame LE NOAN would have been caused by rubble from the demolition of a wall of the insured building; that, therefore, the damage resulted well from the fact of the property or its contents, and the guarantee had to play, unimportant that the responsibility of Mr. QUEGUINER resulting from the damage was retained on the basis of the personal fault; that thus, the Court of Appeal violated article 1134 of the Civil Code.

THE COURTYARD,

Whereas, according to the judgment under appeal (Rennes, December 10, 1997), that Mr. Queguiner signed, before a notary, on April 14, 1993, an offer to purchase a building dependent on the judicial liquidation of the craft company of Mr. Le Noan at the price of 150,000 francs under the suspensive condition of obtaining, within two months, of the acceptance of the offer by the seller, a loan the amount of which, not specified in the deed, had was set at 150,000 francs in the loan application initially formulated with the bank; that Mr. Soret, liquidator of the company of Mr. Le Noan being in favor of this sale requested and obtained from the judge commissioner of the liquidation, by order of July 13, 1993, the authorization to sign the deed of sale at the price of 150,000 francs offered, payable at the time of the regularization of the authentic instrument which intervened on September 21 and September 30, 1993, the representative of Mr. Soret being the last to intervene; that this same act devoted to the profit of Mr. Queguiner a loan of 270 000 francs on offer of the bank of September 7, 1993 which he accepted; that on August 26, 1993, Mrs. Le Noan warned of the fact that work had been undertaken in the building visited the premises and made a fall; that maintaining that the responsibility of Mr. Queguiner and Mr. Louet, architect commissioned by him to study the renovation of the property from July 1993, was engaged in his regard, Ms. le Noan, by deed of August 31, 1994, assigned them , as well as the primary health insurance fund in order to obtain the recognition of the joint and several liability of Mr. Queguiner and Mr. Louet against him and their condemnation to compensate him for the entirety of his bodily injury; that, January 18, 1995, Mr. Queguiner called to the cause the company Axa assurances, with which he had insured the building under an insurance policy “multirisque Immeuble” guaranteeing, in particular, its responsibility in quality owner of the property, insured with effect from July 27, 1993;

On the first plea, taken in its three branches:

Whereas Mr. Queguiner criticizes the judgment for having upheld the judgment which, while declaring him liable for the damage suffered by Ms. Le Noan on August 26, 1993 in application of article 1382 of the Civil Code, rejected his requests made against the company Axa assurances, then, according to the means:

1 ° / that the transfer of an element of the assets of a debtor in compulsory liquidation is perfect from the order of the judge commissioner, in this case of July 13, 1993, authorizing the sale by mutual agreement under the condition that the decision acquires force of res judicata, without it being necessary that the liquidator proceeds still, following this authorization, with a demonstration of the will to raise the option; that thus the court of appeal violated article 154, paragraph 3 of the law of January 25, 1985;

2 ° / that the condition fulfilled has a retroactive effect to the day on which the commitment was contracted; that thus, and in the absence of any contrary stipulation in the offer of Mr. Queguiner or in the order of the judge commissioner, the transfer of property took place, at the latest, at the time of the notification to Mr. Queguiner the loan offer entailing fulfillment of the suspensive condition, retroactively to the date of the order of the commissioner authorizing the sale by agreement confirming the sale; that in deciding that Mr. Queguiner would have acquired the quality of owner only on September 30, 1993, date of the notarial act, the Court of Appeal violated Article 1179 of the Civil Code;

3 ° / that the acts performed by Mr. Queguiner while the condition was pending were validated on the date of the fulfillment of the condition, by retroactive effect, on the day of the order authorizing the transfer of the property transfer , of this condition; that by qualifying these same acts thus validated as wrongful, the Court of Appeal again violated Articles 1179 and 1382 of the Civil Code;

But given that when the judge-commissioner authorizes, in application of article 154, paragraph 3, of the law of January 25, 1985, now article L. 622-16, paragraph 3, of the Commercial Code, the amicable transfer of real estate included in the assets of the bankruptcy proceedings, it follows from article 138, paragraph 3, of the decree of December 27, 1985 that the liquidator passes the acts necessary for the realization of the sale; that, consequently, and if it is not otherwise decided by the order of the judge-commissioner, the transfer of the property of the goods takes place on the date of the execution of the aforementioned acts; that having noted that the deed had been signed before a notary on September 21 and 30, 1993, the Court of Appeal, which deduced that Mr. Queguiner had acquired the quality of owner only on the latter date, has legally justified its decision; that the means is founded in any of its branches;

On the second and third pleas, together:

Whereas Mr. Queguiner still reproaches the judgment by the means reproduced in the annex based on the violation of articles 1179 and 1382 of the Civil Code for having ruled as he did;

But given that having correctly noted that on August 26, 1993, Mr. Queguiner was deprived of any right to occupy the building, noted that a simple precarious holder of the keys, he had abused the situation by undertaking to major demolition work without anyone’s authorization and that he had taken no precautions on the spot to warn any visitors of the danger incurred, the court of appeal, without reversing the burden of proof, was able to deduce that Mr. Queguiner, who did not discuss the causal link that may exist between the fall of Ms. Le Noan and the execution of the demolition of the partitions, had committed a fault directly at the origin of the accident that occurred to the latter and that he did not could attribute to him any fault such as to justify the rejection of his requests;that the means is unfounded;

And on the fourth plea, taken in its two branches:

Whereas Mr. Queguiner finally criticizes the judgment for having rejected his claim against his insurer, the company Axa assurances, then, according to the means:

1 ° / that the retroactive nature of the condition precedent carried out entails the validity of the acts accomplished before the said realization; that thus the insurance contract taken out by Mr. Queguiner as owner of the building, with effect from July 27, 1993, was to cover the damaging consequences of the fall of Ms. Le Noan subsequent to this effective date, on the basis of the risk “liability as owner”, irrelevant whether the insurance contract was concluded on a date on which the condition and hence the transfer of ownership had not yet been fulfilled; that thus the Court of Appeal violated Article 1179 of the Civil Code;

2 ° / that far from limiting the civil liability guarantee of the insured to his liability as custodian of the thing, within the meaning of article 1384, paragraph 1 of the Civil Code, the policy taken out by Mr. Queguiner with the company Axa assurances stipulates, without distinction between the bases of this liability, that the civil liability guarantee as owner covers “damage caused to third parties, when they involve the responsibility of the insured and that they result directly from the actions of the owner. real estate and contents as well as courtyards, gardens, plantations, and all indoor or outdoor facilities “; that it follows from the findings of the Court of Appeal that the fall of Ms. Le Noan was caused by rubble from the demolition of a wall of the insured building; that, therefore, the damage resulted well from the fact of the property or its contents, and the guarantee had to play, unimportant that the responsibility of Mr. Queguiner resulting from the damage was retained on the basis of the personal fault; that thus, the Court of Appeal violated Article 1134 of the Civil Code;

But given that having correctly noted that Mr. Queguiner did not become the owner of the building until after August 26, 1993, and noted that the insurer was not contractually bound to grant him the guarantee for a risk realized on a date when his quality of owner of the building, basic condition of the risk coverage was not acquired and where his civil liability as owner could not therefore be engaged, the court of appeal was able to infer that Mr. Queguiner could not obtain the guarantee from the company Axa assurances; whence it follows that the plea is unfounded;

FOR THESE REASONS :

DISMISSES the appeal;

Orders Mr. Queguiner to pay the costs;

On the report of Mrs. Besançon, advisor, the observations of SCP Waquet, Farge and Hazan, lawyer of Mr. Queguiner, of the SCP Célice, Blancpain and Soltner, lawyer of the company Axa assurances, the conclusions of Mr. Jobard, lawyer general; M. DUMAS, President.

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