Republic of the Philippines

Department of Finance
INSURANCE COMMISSION
1071 United Nations Avenue
City of Manila

CAROLINA D. DECENA,
Complainant,

-versus- IC CAD Case No. 4068

Fore: Accidental Death Claim

ORIENTAL ASSURANCE CORPORATION,

Respondent.
x------------------------------------------------x

REPLY
(WITH MOTION TO DECLARE RESPONDENT AS IN DEFAULT)

(In accordance with Rule 11 of the Rules of Court, in a suppletory

character as provided for in Rule 20 of the Honorable Commission)

Complainant, through counsel, and unto this Honorable

Commission respectfully avers that:

TIMELINESS AND PROPRIETY OF REPLY

1. This pleading is filed following Section 6, Rule 11 of Revised

Rules of Civil Procedure in relation to Section 1, Rule 20 of the
Circular No. 2014-01 of the Insurance Commission, viz:

Reply. A reply may be filed within ten (l0) days from service of the
pleading responded to.1

Section 1. Applicability of the Rules of Court. The provisions of the

1997 Rules of Civil Procedure shall apply in an analogous and
suppletory character whenever practical and convenient.2

(emphases supplied)

2. On August 14, 2017, the undersigned counsel received a copy of

respondents Answer. Thus, following the above-mentioned
Rules, complainant has up to August 24, 2017 to file her Reply.
Hence this filing is done seasonably.

1
Sec. 6, Rule 11 of the Rules of Court
2
Section 1, Rule 20 of the Rules of Procedure Governing Trial and Hearing of claims Cases of the IC
 PRELIMINARY MATTERS

3. A perusal of the Answer disclosed the following critical

procedural lapses:

CLEAR LACK OF CAPACITY OF MR. COTOCO

a. It was prepared on August 1, 2017 as indicated on page 9 of

it, whereas the authority to Mr. Domingo N. Cotoco was
prepared and notarized only on August 8, 2017 as
subscribed and sworn to by Atty. Melody Anne E. Calo-
Villar before Notary Public Manolyn A. Collado, Jr. on said
date.

Consequently, when the Answer was prepared and

completed, Mr. Cotoco was not yet authorized. He did not
have the capacity to represent the respondent.

b. The answer NEVER mentioned also that Mr. Cotoco is

respondents legal and authorized representative. In fact,
the belatedly prepared Secretarys Certificate was NOT
EVEN referred to at all as an annex to the Answer.

Thus, as Mr. Cotocos name was not mentioned at all in the

entire answer as the one authorized to represent the
respondent, he could not be considered as such.

Again, this makes his purported verification not only invalid

and without legal effect, he could not even be considered a
party in this case.

In view of these, we respectfully submit that the answer was

deemed not filed by one who has the capacity to do so.
Thus, it has the effect of not having been filed at all.

c. Atty. Manolyn A. Collado, Jr., one of the two lawyers

authorized to act as counsel in the instant case as
mentioned in the Secretarys Certificate August 8, 2017 and
is therefore clearly a party in the instrument, was the same
lawyer who acted and signed as Notary Public. The 2004
Rules on Notarial Practice provides:

SEC. 3. Disqualifications. - A notary public is

disqualified from performing a notarial act if he:

(a) is a party to the instrument or document that

is to be notarized; (emphasis supplied)
 As a consequence, we submit that Atty. Collado could not
have notarized the belatedly-prepared Secretarys
Certificate thereby rendering the document void and a mere
scrap of paper.

NO EVIDENCE OF TIMELINESS OF FILING

d. The rules of this Honorable Commission3 provide that the

Answer must be filed within fifteen (15) days from receipt of
Complaint. Conformably, compliance with said
reglementary period must be clearly established by the
respondent. Otherwise, it should be deemed as not
seasonably filed. Respondents Answer never established
its compliance with this mandatory rule.

With all these violations of the Rules, we respectfully submit

that the Answer should not merit any consideration at all.
While it is true that under the Rules, they must be construed
liberally to afford a speedy and inexpensive disposition of
cases, yet, we believe that liberality must not result in a total
disregard of the rules already thereby compromising the
substantive rights of the complainant. The violations are not
only numerous, they are serious and unacceptable.

The Answer therefore must be deemed as not having been

filed and that the respondent should be declared as in
default.

That being said, we would like to respond to the Answer, to wit:

4. In paragraph 2, respondent denied that it is represented by Mr.

Renato L. Ibay but failed to name the correct one. There is also
nothing mentioned in the entire answer as to who its
representative is;

5. In paragraph 5, there is a clear and indubitable admission that

the late Mr. Decena figured in an accident for which he had
been paid Accident Medical Benefit claims totaling to
P100,000.00. Yet, in a surprising and rather inconsistent twist,
respondent said that an Accidental Benefit does not include a
claim for the face amount. Worse, it even said that it never
admitted, expressly or impliedly the authenticity, veracity and
stipulations in the affidavit of accident presented then by Mr.
Decena. A simple question is then posed: why did the
respondent pay accidental medical claims based on such
affidavit? With due respect, respondent wants to have its cake

3
Section 1, Rule 5 of the Rules of Procedure Governing Trial and Hearing of claims Cases of the IC
 and eat it too. It even wants us to believe that an accidental
death claim benefit is not an accident benefit. This cannot be
so. All the benefits enumerated on Annex 2 of the respondents
Answer are accidental benefits.

6. Respondents change of heart is clearly self-serving. When it paid

the Accident Medical Expense (Annexes 1 and 1-A of
respondents Answer), as an insurer, it must have conducted a
thorough review of its compensability. It could not just have
paid them without seeing to it that the cause of the medical
condition of Mr. Decena then was indeed an accident. Now that a
claim for a higher amount is being made (i.e. death claim),
respondent suddenly says that his medical condition and
eventual death was not caused by the accident or at the very
least aggravated by it.

7. In conducting said review, it must have examined the Affidavit of

Mr. Decena and its supporting documents (Annexes 3 and 4 of
respondents Answer). Its conclusion then: the cause of the
injury was accidental and therefore compensable!

8. If any consolation, in paragraphs 32 and 33, the respondent did

not question the fact that Mr. Decena had developed a mass on
his left shoulder just months after the accident. While it
contends that it must have taken years for sarcoma to fully
develop, it did not question the fact that merely 3 months after
the accident, mass had developed and had worsen fast that
facilitated his death. Following then the contention of the
respondent that sarcoma takes years to develop, we now ask:
had that accident not happened, would Mr. Decena have
died that early? We humbly submit that the answer is a no.
9. In sum, for the same accident, respondent is paying only the
Rider but not the Face Amount.

ACCIDENT-AGGRAVATED ILLNESSES ARE COMPENSABLE

10. Granting for the sake of argument that the illness pre-existed, we
respectfully present to this Honorable Commission some
insurance cases granting claims for accident-aggravated
illnesses, viz:

In Operators v. Cacatian4, it was held that:

"This court has held that where pre-existing conditions of
diseases are aggravated by an accidental injury, the disability
resulting from such aggravation is compensable.

4
G.R. No. L-26173, October 31, 1969
 In Vicente V.Workmen's Compensation Commission5, the
Supreme Court ruled:

How long a time between the accident and the illness and yet the
illness be the result of the accident? No time can be arbitrarily
set down. Many persons who at first suffer a little, later develop
very serious symptoms. If it be shown that, notwithstanding the
existence of arteriosclerosis, the man was in good condition, and
that dating from the accident mental and physical decay began, it is
reasonable to suppose that the injury was the exciting cause. (Osler
and McCrae, Modern Medicines, its Theory and Practice, p. 649.).

Indeed, there was no visible lesion shown on the petitioner's

anatomy. But here is a person who had been sound and healthy,
for five (5) years during his employment with respondent company;
and soon after his severe fall, he was already suffering from an
illness which crippled him for work. Even a severe strain may have
serious results. There was the smoke, there must have been a fire;
the effect itself, showed the cause; the occurrence told its own tale.

The petitioner's claim should be upheld, not only because the

presumption of compensability was not destroyed by respondent
company's evidence, but also because the Workmen's
Compensation Act is a social legislation designed to give relief to
the workman who has been the victim of an accident in the
pursuit of his employment and must be liberally construed to
attain the purpose for which it has been enacted (Eneria v. Atlantic
Gulf and Pacific Co., of Manila, 38 O.G. Sept. 15, 1951).
(emphasis supplied)

In Koppel V. Javellana6, the High Court said:

In a word, every employee is taken as he is, with his infirmities,

whether few or many, and those infirmities are not to be
aggravated nor accelerated unnecessarily during his
employment. And to the extent they are aggravated or accelerated
by accidental injuries and in some states to exposures to hazardous
conditions, not necessarily constituting an accident, compensation
may be awarded. (5 Schneider's Workmen's Compensation Law
501)

In view of these rulings, the respondent cannot really escape

from paying its due to the complainant.

THE DOCTRINE OF ESTOPPEL

11. Respondents contention in paragraph 11 does not hold water. It

should have enforced that provision if indeed the accident was

5
G.R. No. L-18241 , December 27, 1963

6
G.R. No. L-19926 , April 30, 1965
 not covered by the policy. In the two times that Mr. Decena had
filed a claim, respondent never questioned it. Now that he is
dead, respondent suddenly does, thereby denying Mr. Decena a
chance to refute it. With all due respect, respondent is now
estopped from belatedly questioning its own earlier judgment.

In the case of Pantollano vs. Korphil7, the High Tribunal ruled:

"Under the doctrine of estoppel, an admission or representation

is rendered conclusive upon the person making it, and cannot
be denied or disproved as against the person relying thereon. A
party may not go back on his own acts and representations to
the prejudice of the other party who relied upon them. In the
law of evidence, whenever a party has, by his own declaration,
act, or omission, intentionally and deliberately led another to
believe a particular thing true, to act upon such belief, he
cannot, in any litigation arising out of such declaration, act, or
omission, be permitted to falsify it. (emphasis supplied)

RESPONDENT HAS BURDEN OF PROVING

PRE-EXISTING CONDITION

12. Respondent also contends that the case of Mr. Decena is an

excluded risk without presenting the complete picture. The policy
provisions based on Annex 2 (page 5) of its Answer provides:

PRE-EXISTING CONDITIONS shall mean a disability which

existed or had developed symptoms or there exist manifestation
of illnesses before the commencement date to cover in respect to
an Injured Person was aware or should reasonably have been
aware or based on normal medically accepted pathological
development of illness or illnesses. (emphasis supplied)

This is the very definition of a pre-existing condition.

Respondent is denying the claim because there was allegedly a
pre-existing condition without presenting any proof at all.
To follow its reasoning, he who alleges a fact has the
burden of proving it and a mere allegation is not evidence
proof. Now we ask: Was Mr. Decena aware or should
reasonably have been aware or based on normal medically
accepted pathological development of illness or illnesses
that he had a pre-existing condition?

The answer is clearly in the negative. If respondent

contends otherwise, it must prove it.

We then further ask: what proof has so far been submitted

by respondent to validate its claim that Mr. Decena has a
pre-existing condition?
7
G.R. No. 169575, March 30, 2011
 Regrettably, there is none. No citations, no documents, no
reference materials. Again, as respondent is the one invoking a
pre-existing condition, it must present convincing pieces of
evidence not mere general statements.

13. In paragraph 36, respondent quotes the Examination Clause of

the policy, viz:

The Company (Oriental Assurance Corporation), at its expense,

shall have the right and opportunity to have an Insured, whose
condition of injury is the basis of a claim, be:

xxx

3. examined or interviewed as often as reasonably required

while the claim is being obtained or paid.

While respondent invokes this provision, yet it never showed

any proof or document that it had indeed examined the insured
that would show that he is not entitled to accidental death
benefit. In fact, the result of the examination or interview must
have been the contrary (i.e. payment!) because he had been
paid twice his accidental health benefit. Unfortunately, despite
its resources, all it could show as proofs are bare denials.

Ordinarily, in insurance claims cases, the company would have

produced medical history documents from various sources
(HMOs, Hospitals, etc.) or opinions from medical experts.
Respondent has produced nothing.

GOOD SAMARITAN RULE; NOT APPLICABLE, AN INSULT

14. Complainant finds it rather insulting and degrading for

respondent to say that its payment of Accidental Medical Benefits
was just an act of a Good Samaritan. It wants to show to this
Honorable Commission that Mr. Decena was after all not even
entitled the benefits he had been paid. In that, if not for its
goodness, he should have not been paid a single peso. If such
was being paid only as an act of compassion, it should have been
indicated in the vouchers. The thing is, the payments were
categorized as: Accident Medical Expense. Res Ipsa Loquitur.

ON THE COMPULSORY COUNTERCLAIM

15. We will no longer comment at length on the compulsory

counterclaim as it is clearly baseless and bereft of merit.
 PRAYER

WHEREFORE, PREMISES CONSIDERED, it is most

respectfully MOVED and PRAYED that, after due notice and
hearing, if warranted, this Honorable Commission render judgment:
1) Declaring the Respondent as In Default for:
a. having been represented by an unauthorized
person as of August 1, 2017, the date of the
preparation of its Answer;
b. its failure to state in the Answer the name of its
authorized representative;
c. having a defective Secretarys Certificate, it
having been notarized by one of the parties in
said document; and
d. its failure to establish the mandatory
requirement of timeliness in the filing of its
Answer.
2) Based on the Pleadings as provided for in Rule 5 of this
Commission or to allow the Complainant to present her
evidence ex parte; and
3) Order the respondent it to pay the Complainant the face
amount of P3,000,000.00 plus other legal and related
expenses. It is further prayed that moral and exemplary
damages be likewise awarded in favor or the complainant.
Other reliefs just and equitable are likewise prayed for.

Las Pias City for the City of Manila, August 24, 2017.

NARAG LAW OFFICE

Counsel for the Complainant
Unit 1 Dictum Bldg., Crispina Ave.,
Las Pias Village, Pamplona III,
1740 Las Pias City
Mobile No. 09189395137
E-mail: narag.law@gmail.com

By:
ROSELLE ANNE B. CATIPAY
Roll No. 69159
PTR No. 11324507J/05-31-2017
Lifetime Member No. 016516
MCLE Exempted
(MCLE Governing board Order No. 1 S.2008)
 MARIO P. NARAG, JR., CPA
Roll No. 56274
PTR No. 11204844/01-03-2017
IBP No. 1057397/01-05-2017
MCLE Compliance No. V-0020347
dated April 11, 2016

NOTICE

The Administrative Officer

Claims Adjudication Division
Insurance Commission
1071 UN Ave., City of Manila

Greetings! Kindly submit the foregoing REPLY to the

Honorable Hearing Officer, Atty. Czarina J. Pablo-Nepomuceno, of
the Office of the Insurance Commissioner immediately upon receipt
her consideration.

ROSELLE ANNE B. CATIPAY

Counsel for the Complainant

Copy furnished:

ATTY. MELODY ANNE E. CALO-VILLAR

ATTY. MANOLYN A. COLLADO, JR.
Oriental Assurance Corporation
5th Floor, OAC Building, No. 27 San Miguel Ave.,
Ortigal Center, Pasig City

EXPLANATION OF SERVICE
(In compliance with Sec. 11, Rule 13 of the Rules of Court,
applied in a suppletory character)

The foregoing REPLY has been furnished to the parties via

registered mail as allowed by the Rules of Court due to lack
manpower to effect personal service.

ROSELLE ANNE B. CATIPAY