The Insurability of Gross Negligence in Colombian Insurance Law: Legal Framework, Case Law, and Proposal for Reform

Abstract

The insured’s gross negligence, generally regarded as uninsurable, may nonetheless be covered under liability insurance, given that one of the central functions of this form of insurance is the protection of victims. Should such coverage be expressly included in the policy, or may it be excluded in the same manner? The answers to these questions are relatively straightforward. Far more difficult, however, is the question of how the issue should be resolved when the insurance contract is silent. While most scholars and the courts that have addressed the matter in Colombia consider that contractual silence should be understood as implying coverage, this position is open to serious doubt. This article sets out the reasons why, under Colombian law, silence in the insurance contract should instead be interpreted as excluding coverage for the insured’s gross negligence in liability insurance.