We constantly face with an excessive interest on the part of insurance companies in launching the message that there is a high percentage of fraud against insurers with the aim of collecting undue compensation. 

This message is very recurrent for insurance companies, firstly, because the message gets through, and secondly, because they spread this false belief which, after so much repetition, we end up believing it, thus placing the insurance companies in a position of false prejudice. 

We can observe how, in all types of media, statistical data appear in this sense, always provided by insurance companies and never by other sources outside the sector. 

Well, the reality is quite different, and the fact is that, while the fraud of the insurance companies is minimal (barely 2%), it makes a lot of noise, compared to the real fraud that these companies carry out with each claim received by an injured person, which is devastating, but sounds very little.

The insurers are constantly extorting the success of every personal injury claim in road traffic accidents from the very moment the claim is made, using various practices.

Here are a few examples, among others:

Fraud 1

The companies control the medical treatment. In a traffic accident, the victim must be treated by a centre of the network of rehabilitation clinics whose payment must be authorised and assumed by the company itself.  Often, the companies do not authorise such treatments on arbitrary and unfounded criteria that the courts themselves do not admit, knowingly. But that does not matter, what is important for the insurer is that, if it does not pay, the injured parties cannot receive medical treatment and, from that moment on, they begin to lose their rights to compensation. The company saves on medical treatment, and saves on compensation.

Fraud 2

Out-of-court claims are rejected in their entirety by the companies, forcing the injured parties to pay the cost of legal proceedings, so that the competent court finally upholds their claim and grants the injured party the corresponding compensation. But that does not matter, because many claims fall by the wayside, again saving the companies money.

Fraud 3

Out-of-court claims involving serious injuries to which the company amicably makes fixed offers of between 3,000.00 and 6,000.00 euros. Once in the legal proceedings, there are countless cases in which we have managed to obtain compensation of up to 50,000.00 euros, light years away from the offer for which the company intended to close the case. Again, saving thousands of euros at the expense of the injured parties who, due to lack of advice, decide not to go to court. 

Fraud 4

Offers made by insurance companies without accompanying them with an expert medical report to back them up, despite the obligation imposed by law. This is in order to save the cost of commissioning the corresponding Medical Expert. This also means that the injured party does not have sufficient elements of judgement to be able to decide whether or not to accept an offer. 

 Fraud 5

Derisory legal defences. In some cases, they present a maximum limit of 200 euros, so that the injured party has to pay for the fees of a private lawyer and a private solicitor. This renders this clause, which has been considered abusive by the courts, meaning that it is devoid of content.

In short, the cost saved by the insurance companies, to the detriment of the victims of traffic accidents, with this type of practice that they carry out on a daily basis is immensely greater than the cost that the minimum percentage of fraud that exists can suppose. 

This is why we cannot allow this false dogma to continue to spread, simply because it does not correspond to reality. It is a hard task to fight the insurance lobby, but not impossible.

Many people are unaware that they are entitled to compensation if, after suffering serious injuries in a traffic accident, they need an operation. Compensation for surgery due to a traffic accident is contemplated in Law 35/2015, of 22^nd September, which is why it was included for the first time in the 2016 schedule of rates. 

This type of compensation is formally called "personal injury due to surgery". It is included in the item intended to compensate the basic personal injury, just like the compensation for days of admission to the ICU, hospital admission or days of sick leave. 

We want to answer all your questions, so we have prepared this guide to explain everything you need to know about compensation for surgery.

What is considered a surgical operation? 

Although it is commonly called surgery, it is actually correct to speak of an operation or surgical operation, since it involves operating, either totally or partially, on a wound or injury caused in this case by a traffic accident. 

The aim of a surgical operation is to diagnose, treat or rehabilitate the damage, regardless of whether its extent is greater or lesser, with the help of specialised instruments, local or general anaesthesia, and the necessary disinfection and sterilisation measures.  

How is compensation for surgery in a traffic accident calculated? 
 

According to the system for the valuation of damages caused in traffic accidents, the calculation of the compensation with which the injured party will be compensated for each of the surgical operations required will depend on their complexity, whether their life is in danger, the type of anaesthesia to be used and the technical characteristics of the operation.

Article 140 of Law 35/2015 of 22^nd September includes a table indicating a minimum and a maximum amount for each type of operation. According to this, each surgery can be compensated with a minimum of €400 and a maximum of €1,600.

Therefore, in order to calculate this type of compensation, it is very important to determine which Surgical Operation Group the operation belongs to, so below we will see what this is and how it works.

Group of surgical operations and how it works 

Taking into account what we have seen in the previous section, a Group of Surgical Procedures is a category in which a series of operations or procedures are classified according to their characteristics, complexity, etc. Therefore, in order to be able to calculate the exact amount of compensation, it is necessary to classify the procedure suffered by the victim in a specific group.  

For this purpose, the Terminological Classification and Codification of Medical Acts and Techniques establishes nine groups or categories, as follows:

• Group 0 (from 400 to 500 €): suture of wounds or treatment and cleaning of burns.
• Group 1 (from 501 to 600 €): simple bone fracture or extraction of foreign bodies in the face and neck, among others.
• Group 2 (from 601 to 700 €): among others, suture of serious wounds, muscle tears or orthopaedic mobilisation of shoulder, knee, etc., under anaesthesia.
• Group 3 (from 701 to 850 €): muscle tears, medium burns or joint injuries without fracture, among others. 
• Group 4 (from €851 to €1,000): including tendon ruptures, ligament reconstruction, open fractures or amputation of limbs.
• Group 5 (from €1,001 to €1,150): serious fractures or dislocations, herniated discs, etc.
• Group 6 (from €1,151 to €1,300): bone, muscle or skin grafts, among others.
• Group 7 (from €1,301 to €1,450): transplants and complex reconstructions, among others.
• Group 8 (from €1,451 to €1,600): surgical correction of the spine, reimplanted limb, among others. 

However, it is sometimes difficult to classify a surgical operation in a specific group, which is why the procedure of a medical expert and a lawyer specialising in road accident compensation is necessary. 

Can surgical operation overlap with other concepts? 

Compensation for surgical operation is an autonomous and independent item within the section that compensates the basic personal damage suffered due to temporary injuries caused by a traffic accident. That is to say, this concept does not overlap with any other concept, therefore, the days of hospitalisation or the sequelae that are a consequence of this operation must be valued and compensated separately under other items. 

Most frequent road traffic accident injuries requiring surgery 

In traffic accidents, whether by car, motorbike or moped, there are always a series of injuries that are repeated more frequently and that usually require surgical operation:

• Concussions and other head contusions.
• Nasal fractures and severe blows to the face.
• Simple or open fractures, especially in the lower limbs. 
• Burns of varying degrees. 
• Crushing or amputation of a limb.

Different surgeries, separate compensation. 

Sometimes, there are injuries that require more than one surgical intervention for their treatment, stabilisation or rehabilitation. Therefore, the injured person can claim compensation for each of the operations needed to repair the damage suffered in a traffic accident. Furthermore, there is no maximum number of operations that can be compensated, but rather each and every one of them can be claimed.

When an accident occurs, many people are unaware of the rights of those travelling as passengers in the vehicles involved in the accident, especially if the driver is responsible for the accident. For this reason, we are going to explain what compensation can be claimed by passengers in a traffic accident.  

First of all, we should make clear that no matter what type of vehicle they are travelling in, nor whether the driver is responsible. Passengers or occupants are always considered to be victims in the accident. They are therefore entitled to compensation for the damages they have suffered.

 After an accident, it is essential to clarify who is at fault, in order to know which insurance company will be responsible for compensating the injured parties. However, fault is only attributed to the driver of the vehicle and never to the passengers, except in these cases:  

• If the occupants of the vehicle were travelling in breach of safety regulations, such as the compulsory use of seat belts or helmets, then the amount of their compensation will be lower, as they are considered to have contributed to the aggravation of the damage.

• If the accident vehicle is stolen and its occupants were travelling in it knowing this situation. 

Next we will analyse what rights the occupants have depending on the type of vehicle they are travelling in and the responsibility of its driver in the accident.

Motorbike accident 

In cases where the vehicle involved in the accident is a motorbike or moped, the person travelling as a passenger has the right to claim compensation for injuries and material damage suffered. 

If the driver of the motorbike is at fault in the accident, then it will be the insurer's responsibility to compensate not only the passenger, but also the other injured parties, if any. On the other hand, if a third party is at fault, his or her insurance company will be responsible for compensating all the victims, including the driver of the motorbike.    

Private car accident 

Both the co-driver and the other passengers in a private car can claim financial compensation for damages suffered in a traffic accident. 

The insurance company of the driver of the vehicle that was at fault in the accident will be responsible for compensating all the victims. Therefore, if the person who was driving the vehicle in which you were travelling is responsible, his insurance company will pay your compensation and that of the rest of the injured parties, if there are any.

On the other hand, if the accident was caused by the driver of the opposite vehicle, then his or her insurer will be responsible for compensating the injured parties, including the driver.

Taxi accident 

If at the time of the accident you were travelling as a passenger in a public means of transport, such as a taxi, your rights are the same as in the case of travelling in a private car. Therefore, you will be able to claim compensation for the injuries and damages you have suffered. 

In this case, the insurer of the vehicle responsible for the accident will also be responsible for paying compensation to the injured parties. 

Compensation for common companions

There are different types of compensation that can be claimed by an occupant or passenger of a vehicle after a traffic accident, the most common are the following: 

• Compensation for temporary injuries. This compensation will cover the days that the recovery of the injuries has lasted, each day being valued according to the damage caused to the victim (very serious, serious, moderate, basic). Likewise, the injured party will be compensated for:

• Each operation or surgical intervention required.
• Loss of quality of life.  

• Compensation for after-effects. Once the temporary injuries have healed or stabilised and the medical discharge has been received, if there are after-effects, a doctor specialised in the assessment of the damage must assess them by points and depending on this score, they will be assigned an amount that will be the amount of the compensation.    

• Compensation for patrimonial damage. Here compensation may be claimed for:
• Material damage to personal objects suffered in the accident.
• The costs of medical care, medicines, etc., incurred as a direct consequence of the accident.
• Income lost as a result of sick leave. 
• Compensation for death. In these cases, the calculation takes into consideration the age of the victim, the relationship of the injured party claiming compensation and family circumstances, among other matters.

However, in any traffic accident, several factors must be considered in order for victims to be able to claim fair compensation. It is therefore advisable to enlist the help of a lawyer specialising in road traffic accident compensation.

Last December, Congress passed the modification of the Traffic Law that will come into force on 21^st March 2022.

The approved reform revises the penalties applied since 2015 for offences that result in a loss of points on the driving licence and toughens some of the fines provided for. In addition, it establishes a single two-year period for recovering lost points and it is also committed to providing driving courses to raise drivers' awareness of the importance of road safety.

Here we tell you how the new Traffic Law comes into force and what changes will take effect from next March.

It entries into force on 21^st March 2022

The reform of the Traffic Law was approved on 3^rd December 2021 and published in the Spanish Official Gazette (BOE) on 21^st December. In the text it was mentioned that the new traffic regulation comes into force three months after its official publication, therefore, the new sanctions will start to be applied on 21^st March 2022.

However, you should know that there are some modifications that are already being applied since December.

What changes with the new traffic law

One of the most important changes introduced by the amendment to the Traffic Act is the ban on cars and motorbikes overtaking on conventional roads if the speed limit on the road has to be exceeded. In other words, it is no longer permitted to exceed the speed limit by up to 20 km/h in order to overtake.

In addition, with the aim of improving road safety and protecting the most vulnerable groups, the new law establishes that on roads with more than one lane in each direction it is compulsory to change lanes to overtake cyclists and mopeds.

Likewise, passenger transport vehicles registered from July onwards will have to compulsorily incorporate an anti-starting breathalyser. In addition, transport and goods companies will be able to access a register of professional drivers to check whether their employees have a valid driving licence.

Increased loss of points for existing offences

As far as penalties are concerned, the changes that stand out the most in this reform of the Traffic Law have to do with the increase in the loss of points for some offences that were already punishable.

Some of the offences that will cost drivers more points from March are:

• Holding and/or using mobile devices while driving, from being penalised with 3 points less to 6, plus a fine of 200 €.
• Not wearing seat belts, child restraint systems, helmets and other mandatory protective equipment, which will no longer be 3 but 4 points less and a financial penalty of €200.
• Throwing objects from the vehicle that could cause accidents or fires, which increases from 4 to 6 points.
• Overtaking cyclists without maintaining the mandatory minimum separation, hindering or endangering their lives, will result in a loss of 6 points and not 4 as before.

Two years without breaking the law in order to recover 12 points

Another of the new features introduced by the reform is that the period of time that will have to elapse to recover driving licence points is two years, as long as no offences are committed during this time.

Until now, this period varied according to the seriousness of the offence that led to the loss of points.

Recovery of 2 points with DGT courses

On the other hand, the new law provides that up to two points can be recovered if the sanctioned driver attends safe and efficient driving courses given by the Spanish Driver and Vehicle Licensing Agency (DGT). The requirements and conditions to be met in order to attend these courses will be established through a Ministerial Order.

In addition, attendance at these awareness and sensitisation courses will also be taken into account as complementary training to pass the driving licence.

Point penalties will be as follows

The offences that will also be punished with a loss of points, according to the recently approved reform of the Traffic Act, are as follows:

• Driving with the presence of drugs in the organism or a rate of alcohol greater than 0.50 mg/l in exhaled air in general and 0.30 mg/l in the case of professional drivers and with less than two years of seniority, will be punished with 6 fewer points.
• Using or possessing technology to inhibit radars. This is considered a very serious offence and will be penalised with 6 points off the driving licence.
• Not respecting the right of way at a give way sign and not stopping at a stop sign or red traffic light will be penalised with 4 points less.
• Carrying a mobile phone between the helmet and the driver's head will result in a 3 points deduction.

All those who suffer an accident during the current State of Alarm will wonder what will happen to them in the event that they have to go to hospital or receive rehabilitation due to the accident, we inform you about what to do in the event of a traffic accident.

Can I go to the emergency room if I have had a traffic accident?

During the State of Alarm decreed to stop the Coronavirus, citizens are committed to collaboration and solidarity with the entire population, aimed at avoiding any action on our part that could lead to a minimum of contagion. Likewise, our commitment extends to avoiding going to the emergency room, to avoid further collapse of the health service, unless we are facing a serious situation.

In other words, if we suffer an accident during the state of alarm, and it results in a serious injury, we will inevitably have to go to the doctor, but if we are dealing with whiplash we should avoid it.

However, this does not mean that we cannot claim compensation for our injuries. However, we have to safeguard the chronological criterion of 72 hours, to avoid the insurance company denying the existence of a causal relationship between the accident and the injury.

To do this, we turn firstly to article 135 of Law 35/2015 on the assessment of damages caused to persons in traffic accidents, which establishes that, in order to safeguard the chronological criterion, within 72 hours after the accident, either the symptoms must manifest themselves or the injured person must receive medical attention.

In this sense, as we have pointed out that during the State of Alarm we should not go to the emergency room for a minor injury, we opt for the other alternative.

Therefore, we will have to prove that the symptoms of the injury have appeared within 72 hours after the accident. To do this, here are some ideas, such as going to the pharmacy within 72 hours and, after telling the specialised staff about your situation, buying the recommended mediation and keeping the purchase invoice.

Request, within 72 hours, a medical recommendation by e-mail to a doctor to whom we have access and follow his or her recommendations and prescriptions. Always filing the exchanged e-mails, make use, also within 72 hours, of the APP SALUD RESPONDE of the Junta de Andalucía, where after inserting our Social Security number, we will have access to an internal messaging service to make queries, and where any management is recorded.

Will I receive rehabilitation treatment during confinement?

In accidents during the State of Alarm, injured persons will receive rehabilitation treatment.

This will be done online or by phone, and will be carried out by a physiotherapist or rehabilitator, with continuous medical follow-up by the assigned traumatologist.

Trafilex partner clinics

Trafilex also has a network of clinics strategically located in order to provide a quality service and offer the greatest comfort to the injured person for accidents during the Alarm State.

The clinics associated with Trafilex are:

Clínica La Victoria, in Málaga.

CUME Clinic, in Benálmadena.

Hospital Boris, in Fuengirola.

Ceram Hospital, in Marbella

Trafilex helps you with your accident during the state of alarm.

Trafilex takes care of all the formalities of the accident during the state of alarm, from the moment of its occurrence until the final collection of the compensation. The State of Alarm is not an obstacle to the normal processing of the case or its successful completion.

One of the questions being asked by many people and workers who have to go to work during the state of alert due to the Coronavirus is how to travel by car during the state of alert, and the repercussions of this situation on the traffic of vehicles on the roads.  As an introduction, we must start with the fact that the circulation of private vehicles is permitted, but it is limited to the activities listed in article 7 of RD 463/2020 of 14 March, which allows people to leave their homes.

In other words, we will be able to travel by car during the state of alarm only to:

• Purchase food or pharmaceutical products and basic necessities
• Go to health centres, services and establishments
• Travelling to the place of work
• Return to the place of habitual residence
• Caring for the elderly, underage and disabled people
• Travelling to financial and insurance institutions
• Due to force majeure or a situation of necessity

Can two people travel in the same car during quarantine?

To answer this question, we must also refer to the aforementioned article 7 of the RD. From its reading, we can see that, in the event that we have to travel by car during the state of alarm, we must do so individually, unless we are accompanying an elderly person, a disabled person or an underage.

What do I need to do to be able to drive without being fined?

The law does not determine how we must prove that our departure from the house is within the limits allowed by the RD, nor does it require us to carry a receipt from the company when we travel to our place of work.

The State Security Forces and Corps that enforce compliance with the RD on the streets, will be in the specific case, using common sense, and being protected by the law to carry out the appropriate questions and checks to verify the reason for the journey.

It is true that the checks will be quicker if we have a supporting document when we travel, for example, to our workplace. Here you will find a form for all of us to use.

Certificate of the need to travel for work purposes

Below you can download a standard certificate of need to travel for work in PDF format, in case you need to use it as proof of your commute to work.

Does the insurance cover me during a state of alarm?

Yes, the insurance covers you when you have to travel by car during a state of alarm. This is no different from driving under normal conditions.

Is it possible to hire a car to travel during the state of emergency?

Yes, according to the Ministerial Order of 23 March, since 24 March, the opening of car rental offices without a driver is permitted, and therefore the rental of vehicles, as long as the purpose is one of the journeys permitted in article 7 of Royal Decree 463/2020, of 14 March.

This post is given on the occasion of Covid 19 and the State of Alarm decreed in Spain on 14 March by RD 463/2020, in relation to traffic accidents that occurred during this period. 

Accidents occurring during the State of Alarm due to Covid 19

Mainly to answer the question that arises for everyone at this time: should the insurance company be liable for claims occurring during the State of Alarm? 

Well, the answer is yes, loud and clear. Compulsory motor insurance will cover all damages caused to third parties as a result of traffic accidents occurring during the period of the State of Alarm, under the protection of the direct action against the insurer, contained in art. 76 of the Insurance Contract Law (regardless of the administrative sanctions that may result from non-compliance with the limitations on the freedom of public use of the streets that the RD itself limits).

"Article 76

The injured party or his/her/their heirs will have direct action against the insurer to demand the fulfilment of the obligation to compensate, without prejudice to the right of the insurer to repeat against the insured person, in the event that it is due to fraudulent conduct of the latter, the damage or harm caused to a third party. (...)".

Based on this premise, that the injured party will ALWAYS be covered by the company that insures the vehicle responsible for the claim, and analysing the content of the aforementioned article 76, the second question arises, can the insurer reimburse the insured party for the amounts paid to the injured third party as a consequence of an accident that occurred during the State of Alarm?

To do so, we must go to Article 10 of the Royal Legislative Decree 8/2004, of 29th October, which approves the revised text of the Law on civil liability and insurance in the circulation of motor vehicles (LRCSCVM), 

"Article 10 Power of recourse

The insurer, once the payment of the compensation has been made, may recourse: 

a. Against the driver, the owner of the causal vehicle and the insured person, if the damage caused was due to the fraudulent conduct of any of them or to driving under the influence of alcoholic beverages or toxic drugs, narcotics or psychotropic substances.

b. Against the third party responsible for the damage.

c. Against the policy holder or insured person, for the causes foreseen in the Law 50/1980, of the 8th of October, of Insurance Contracts, and, in accordance with that foreseen in the contract, in the event of driving the vehicle by someone who does not have a driving licence.

d. In any other case in which such repetition or recourse may also be applicable in accordance with the law".

However, Law 21/2007, of 11 July, which amends the revised text of the Law on civil liability and insurance in the circulation of motor vehicles, approved by Royal Legislative Decree 8/2004, of 29 October, and the revised text of the Law on the regulation and supervision of private insurance, approved by Royal Legislative Decree 6/2004, of 29 October, introduces the following objection: 

 "with the objective of reinforcing the character of patrimonial protection for the policy holder or insured person, the possibilities of recourse or repetition by the insurer against them are limited to the causes foreseen in the Law, with the elimination of the possibility of the insurer repeating against the policy holder or insured person for causes foreseen in the contract".

Of interesting mention, as it deals with a particularly common case in practice, is the Supreme Court Judgement of 20 November 2014, which declares null and void the existing clause in a car insurance contract which does not provide cover in the event that the vehicle is driven by someone under 26 years of age, not declared in the policy.

Conclusion on accidents occurring during the State of Alarm

In conclusion, based on our legislation and jurisprudence, accidents that take place during the State of Alarm, the insurers' right of recovery is reserved for those cases contained in the law and which are specified as, driving under the influence of alcoholic drinks or drugs and/or fraudulent driving, therefore, the exercise of the right of recovery of art. 10 LCS in cases of State of Alarm is not applicable.

Dear client, on the occasion of Covid-19 and following the declaration of the State of Alarm in Spain by Royal Decree 463/2020 of 14 March, we inform you that Trafilex offices will remain closed to the public to avoid any physical contact during the next 15 days. In any case, Trafilex is an experienced brand in the practice of protocols designed so that the client does not have to travel to the law firm, avoiding any extortion in the work and personal routine of the client, in order to offer all possible facilities during the course of the file.  For this reason, we continue to work with total normality, both with the insurance companies and with you, being at your complete disposal by e-mail or telephone.

In particular, we would like to inform you that the rehabilitation treatments will inevitably be interrupted during these 15 days, as they are a potential source of contagion. However, the association of victims of traffic accidents, ADEVI, of which Trafilex is a member, is working to ensure that a series of exceptional measures are taken during the state of alarm in order to safeguard the treatment of victims so as not to harm their recovery and to justify the continuity of care to insurance companies.

The measures proposed to UNESPA (Unión Española de Entidades Aseguradoras y Reaseguradoras) and which are intended to be implemented are as follows:

• The first and subsequent consultations/emergencies can be carried out by telematic means.

• Rehabilitation is carried out at home, providing the injured person with the appropriate exercises to be carried out by him/herself or with the help of a third person who lives with him/her.

The clinics try to provide a physiotherapist or rehabilitator to lead the sessions telematically.

Both Trafilex and our network of clinics will contact you to tell you how to proceed with the treatments as soon as possible.

From Trafilex, in short, we want to convey to you the absolute peace of mind that the course of your case continues under the absolute control of our team, and that the State of Alarm we are going through is not an obstacle to its success, but rather a temporary situation in which alternative, equally effective measures are being adopted.

Yours sincerely,

Trafilex Team