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MALAYAN INSURANCE CO.,                  G.R. No. 172156





- versus -                                                       Chairperson,



TINGA, and



Respondent.                                       Promulgated:

November 23, 2007

x ------------------------------------------------------------x


Tinga, J.:

We consider whether an insurer, in an action for recoupment instituted in its capacity as the subrogee of the insured, may be conferred favorable relief even if it failed to introduce in evidence the insurance contract or policy, or even allege the existence nay recite the substance and  attach a copy of such document in the complaint. The answer is as self-evident as meets the eye.

This Petition for Review under Rule 45 was filed by petitioner Malayan Insurance Co., Inc. (Malayan),[2][3] dated 23 December 2005 of the Court of Appeals in C.A. G.R. SP No. 90505, as well as its Resolution[4] dated 5 April 2006 denying petitioner’s motion for reconsideration. assailing the Decision

The facts require little elaboration. Around 1 February 1995, Fasco Motors Group loaded 120 pieces of “motors” on board China Airlines Flight 621 bound for Manila from the United States. The cargo was to be delivered to consignee ABB Koppel, Inc. (ABB Koppel).[5] When the cargo arrived at the Ninoy Aquino International Airport, it was discharged without exception and forwarded to People’s Aircargo & Warehousing Corp.’s (Paircargo’s) warehouse for temporary storage pending release by the Bureau of Customs. Paircargo remained in possession of the cargo until 7 March 1995, at which point respondent Regis Brokerage Corp. (Regis) withdrew the cargo and delivered the same to ABB Koppel at its warehouse.[6] When the shipment arrived at ABB Koppel’s warehouse, it was discovered that only 65 of the 120 pieces of motors were actually delivered and that the remaining 55 motors, valued at US$2,374.35, could not be accounted for.[7]

The shipment was purportedly insured with Malayan by ABB Koppel. Demand was first made upon Regis and Paircargo for payment of the value of the missing motors, but both refused to pay.[8] Thus, Malayan paid ABB Koppel the amount of P156,549.55 apparently pursuant to its insurance agreement, and Malayan was on that basis  subrogated to the rights of ABB Koppel against Regis and Paircargo.[9] On 24 June 1996, Malayan filed a complaint for damages  against Regis and Paircargo with the Metropolitan Trial Court (MeTC) of Manila, Branch 9. In the course of trial, Malayan presented Marine Risk Note No. RN-0001-19832 (Marine Risk Note) dated 21 March 1995 as proof that the cargo was insured by Malayan.[10]

The MeTC rendered a Decision[11] dated 25 May 2001 adjudging Regis alone liable to Malayan in the amount of P156,549.00 as actual damages, P15,000.00 as attorney’s fees, and costs of suits. With the exception of the award of attorney’s fees, the MeTC decision was affirmed on appeal to the Regional Trial Court (RTC) of Manila, through a Decision dated 28 February 2005.[12]

Regis filed a petition for review with the Court of Appeals seeking the reversal of the MeTC and RTC decisions. On 23 December 2005, the Court of Appeals promulgated its decision vacating the RTC judgment and ordering the dismissal of Malayan’s complaint. The central finding that formed the Court of Appeals decision was that the Marine Risk Note presented as proof that the cargo was insured was invalid.[13] It was observed that the Marine Risk Note was procured from Malayan only on 21 March 1995, when in fact the insured, ABB Koppel, had learned of the partial loss of the motors as early as 7 March 1995.[14] The appellate court noted that under Section 3 of the Insurance Code, the past event which may be insured against must be unknown to the parties and so for that reason the insurance contract in this case violated Section 3. The Court of Appeals further ruled that the due execution and authenticity of the subrogation receipt presented before the trial court by Malayan were not duly proven since the signatories thereto were not presented by Malayan before the trial court to identify their signatures thereon, and neither was evidence presented to establish the genuineness of such signatures.[15]

Malayan filed a motion for reconsideration with the Court of Appeals where it contended that the Marine Risk Note is “an open policy per  Marine Open Cargo Policy No. OPEN POLICY-0001-00410 issued

before February 1, 1995.”[16] The motion was denied by the appellate court,[17] which pointed out that Malayan “did not present the aforecited marine open cargo policy as would indicate the date of its issuance.”[18]

Hence, the present petition instituted by Malayan. According to Malayan, the lost cargo was insured not only by the Marine Risk Note but by the anteceding Marine Insurance Policy No. M/OP/95/0001-410 (Marine Insurance Policy) which it issued  in favor of ABB Koppel on 20 January 1995, or many days before the motors were transported to Manila. A copy of the Marine Insurance Policy was attached to the present petition, but it is clear and no pretense was made that said policy had not been presented at the trial.

The key arguments raised before us by Malayan flow from the existence of the Marine Insurance Policy. Pains are taken to establish that there existed as between Malayan and ABB Koppel an “open policy” under Section 60 of the Insurance Code, wherein the value of the thing insured is not agreed upon but left to be ascertained in case of loss, and that the Marine Risk Note was nothing but a determination of the value of the thing insured pursuant to the open policy as established by the Marine Insurance Policy.  Unfortunately for Malayan, the Court could not attribute any evidentiary weight to the Marine Insurance Policy.

It is elementary that this Court is not a trier of facts. We generally refer to the trial court and the Court of Appeals on matters relating to the admission and evaluation of the evidence. In this case, while the trial courts and the Court of Appeals arrived at differing conclusions, we  essentially agree with the Court of Appeals’ analysis of Malayan’s cause of action, and its ordained result. It appeared that at the very instance the Marine Risk Note was offered in evidence, Regis already posed its objection to the admission of said document on the ground that such was “immaterial, impertinent and irrelevant to this case because the same was issued on March 21, 1995 which is after the occurrence of the loss on February 1, 1995.”[19] Because the trial courts failed to duly consider whether the Marine Risk Note sufficiently established a valid insurance covering the subject motors, the Court of Appeals acted correctly in the exercise of its appellate jurisdiction in setting aside the appealed decisions.

Tellingly, Malayan’s argument before this Court is not that the Court of Appeals erred in its evaluation of the Marine Risk Note following that document’s terms alone, but that the appellate court could not consider the import of the purported Marine Insurance Policy. Indeed, since no insurance policy was presented at the trial by Malayan, or even before the Court of Appeals,[20] there certainly is no basis for this Court to admit or consider the same, notwithstanding Malayan’s attempt to submit such document to us along with its present petition. As we recently held:

Similarly, petitioner in this case cannot "enervate" the COMELEC's findings by introducing new evidence before this Court, which in any case is not a trier of facts, and then ask it to substitute its own judgment and discretion for that of the COMELEC.

The rule in appellate procedure is that a factual question may not be raised for the first time on appeal, and documents forming no part of the proofs before the appellate court will not be considered in disposing of the issues of an action. This is true whether the decision elevated for review originated from a regular court or an administrative agency or quasi-judicial body, and whether it was rendered in a civil case, a special proceeding, or a criminal case. Piecemeal presentation of evidence is simply not in accord with orderly justice.[21]

Since the Marine Insurance Policy was never presented in evidence before the trial court or the Court of Appeals even, there is no legal basis to consider such document in the resolution of this case, reflective as that document may have been of the pre-existence of an insurance contract between Malayan and ABB Koppel even prior to the loss of the motors. In fact, it appears quite plain that Malayan’s theory of the case it pursued before the trial court was that the perfected insurance contract which it relied upon as basis for its right to subrogation was not the Marine Insurance Policy but the Marine Risk Note which, unlike the former, was actually presented at the trial and offered in evidence. The Claims Processor of Malayan who testified in court in behalf of his employer actually acknowledged that the “proof that ABB Koppel insured the [shipment] to [Malayan]” was the Marine Risk Note, and not the Marine Insurance Policy.[22] Even the very complaint filed by Malayan before the MeTC stated that “[t]he subject shipment was insured by [Malayan] under Risk Note No. 0001-19832,”[23] and not by the Marine Insurance Policy, which was not adverted to at all in the complaint.[24]

Thus, we can only consider the Marine Risk Note in determining whether there existed a contract of insurance between ABB Koppel and Malayan at the time of the loss of the motors. However, the very terms of the Marine Risk Note itself are quite damning. It is dated 21 March 1995, or after the occurrence of the loss, and specifically states that Malayan “ha[d] this day noted the above-mentioned risk in your favor and hereby guarantee[s] that this document has all the force and effect of the terms and conditions in the Corporation’s printed form of the standard Marine Cargo Policy and the Company’s Marine Open Policy.” It specifies that at risk are the 120 pieces of motors which unfortunately  had already been compromised as of the date of the Marine Risk Note itself.[25]

Certainly it would be obtuse for us to even entertain the idea that the insurance contract between Malayan and ABB Koppel was actually constituted by the Marine Risk Note alone. We find guidance on this point in Aboitiz Shipping Corporation v. Philippine American General Insurance, Co.,[26] where a trial court had relied on the contents of a marine risk note, not the insurance policy itself, in dismissing a complaint. For this act, the Court faulted the trial court in “[obviously mistaking] said Marine Risk Note as an insurance policy when it is not.”[27] The Court proceeded to characterize the marine risk note therein as “an acknowledgment or declaration of the private respondent confirming the specific shipment covered by its Marine Open Policy, the evaluation of the cargo, and the chargeable premium,”[28] a description that is reflective as well of the present Marine Risk Note, if not of marine risk notes in this country in general.

Malayan correctly points out that the Marine Risk Note itself adverts to “Marine Cargo Policy Number Open Policy-0001-00410” as well as to “the standard Marine Cargo Policy and the Company’s Marine Open Policy.” What the Marine Risk Note bears, as a matter of evidence, is that it is not apparently the contract of insurance by itself, but merely a complementary or supplementary document to the contract of insurance that may have existed as between Malayan and ABB Koppel. And while this observation may deviate from the tenor of the assailed Court of Appeals’ Decision, it does not presage any ruling in favor of petitioner. Fundamentally, since Malayan failed to introduce in evidence the Marine Insurance Policy itself as the main insurance contract, or even advert to said document in the complaint, ultimately then it failed to establish its cause of action for restitution as a subrogee of ABB Koppel.

Malayan’s right of recovery as a subrogee of ABB Koppel cannot be predicated alone on the liability of the respondent to ABB Koppel, even though such liability will necessarily have to be established at the trial for Malayan to recover. Because Malayan’s right to recovery derives from contractual subrogation as an incident to an insurance relationship, and not from any proximate injury to it inflicted by the respondents, it is critical that Malayan establish the legal basis of such right to subrogation by presenting the contract constitutive of the insurance relationship between it and ABB Koppel. Without such legal basis, its cause of action cannot survive.

Our procedural rules make plain how easily Malayan could have adduced the Marine Insurance Policy. Ideally, this should have been accomplished from the moment it filed the complaint. Since the Marine Insurance Policy was constitutive of the insurer-insured relationship  from which Malayan draws its right to subrogation, such document should have been attached to the complaint itself, as provided for in Section 7, Rule 9 of the 1997 Rules of Civil Procedure:

SECTION 7.   Action or defense based on document.—Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading.

Thus, in an action to enforce or rescind a written contract of lease, the lease contract is the basis of the action and therefore a copy of the same must either be set forth in the complaint or its substance recited therein, attaching either the original or a copy to the complaint.[29] The rule has been held to be imperative, mandatory and not merely directory, though must be given a reasonable construction and not be extended in its scope so as to work injustice.[30] It was incumbent on Malayan, whose right of subrogation derived from the Marine Insurance Policy, to set forth the substance of such contract in its complaint and to attach an original or a copy of such contract in the complaint as an exhibit. Its failure to do so harbingers a more terminal defect than merely excluding the Marine Insurance Policy as relevant evidence, as the failure actually casts an irremissible cloud on the substance of Malayan’s very cause of action. Since Malayan alluded to an actionable document, the contract of insurance between it and ABB Koppel, as integral to its cause of action against Regis and Paircargo, the contract of insurance should have been attached to the complaint.

It may be that there is no specific provision in the Rules of Court which prohibits the admission in evidence of an actionable document in the event a party fails to comply with the requirement of the rule on actionable documents under Section 7, Rule 9.[31] Yet such qualification does not provide safe harbor for Malayan as it did not even present the Marine Insurance Policy at the trial, relying instead on the Marine Risk Note only and by its lonesome to constitute the insurer-insured relationship between it and ABB Koppel, or more precisely as stated in its Formal Offer of Evidence, “to prove that the shipment subject of this case was covered by an insurance policy with the plaintiffs.”[32] Before the MeTC, Regis objected to the admission of the Marine Risk Note on the ground of immateriality and irrelevance because it “was issued on March 21, 1995 which is after the occurrence of the loss on February 1, 1995.”[33] The Court of Appeals upheld this objection of Regis as basis for the dismissal of the complaint.  In our view, Malayan may have not been of the precise belief that the Marine Risk Note is the insurance contract itself as even the purpose stated in its Formal Offer may admit to an interpretation that alludes to “an insurance policy with the plaintiffs” that may stand independent of the Marine Risk Note. Yet if that were so, it remains incomprehensible and inexcusable why Malayan neglected to attach it to its complaint as required by Section 7, Rule 9, or even offer it in the Marine Insurance Policy which constitutes the insurance contract as evidence before the trial court.

It cannot be denied from the only established facts that Malayan and ABB Koppel comported as if there was an insurance relationship between them and documents exist that evince the presence of such legal relationship. But under these premises, the very insurance contract emerges as the white elephant in the room – an obdurate presence which everybody reacts to, yet legally invisible as a matter of evidence since no attempt had been made to prove its corporeal existence in the court of law. It may seem commonsensical to conclude anyway that there was a contract of insurance between Malayan and ABB Koppel since they obviously behaved in a manner that indicates such relationship, yet the same conclusion could be had even if, for example, those parties staged an elaborate charade to impress on the world the existence of an insurance contract when there actually was none. While there is absolutely no indication of any bad faith of such import by Malayan or ABB Koppel, the fact that the “commonsensical” conclusion can be drawn even if there was bad faith that convinces us to reject such line    of thinking.

The Court further recognizes the danger as precedent should we sustain Malayan’s position, and not only because such a ruling would formally violate the rule on actionable documents. Malayan would have us effectuate an insurance contract without having to consider its particular terms and conditions, and on a blind leap of faith that such contract is indeed valid and subsisting. The conclusion further works to the utter prejudice of defendants such as Regis or Paircargo since they would be deprived the opportunity to examine the document that gives rise to the plaintiff’s right to recover against them, or to raise arguments or objections against the validity or admissibility of such document. If a legal claim is irrefragably sourced from an actionable document, the defendants cannot be deprived of the right to examine or utilize such document in order to intelligently raise a defense. The inability or refusal of the plaintiff to submit such document into evidence constitutes an effective denial of that right of the defendant which is ultimately rooted in due process of law, to say nothing on how such failure fatally diminishes the plaintiff’s substantiation of its own cause of action.

Indeed, in the absence of any evidentiary consideration of the actual Marine Insurance Policy, the substance of Malayan’s right to recovery as the subrogee of ABB Koppel is not duly confirmed. There can be no consideration of the particular terms and conditions in the insurance contract that specifically give rise to Malayan’s right to be subrogated to ABB Koppel, or to such terms that may have absolved Malayan from the duty to pay the insurance proceeds to that consignee. The particular date as to when such insurance contract was constituted cannot be established with certainty without the contract itself, and that point is crucial since there can be no insurance on a risk that had already occurred by the time the contract was executed. Since the documents in evidence and testimonies allude to “marine insurance” or “marine risk note,” it also is a legitimate question whether the particular marine insurance relationship between Malayan and ABB Koppel also covers cargo delivered not by ships at sea but by airplane flights, as had occurred in this case. Only the actual policy itself could definitively settle such a question.

We can even note legitimate questions concerning the integrity or viability of the Marine Insurance Policy as belatedly presented before this court. For one, Regis observes that the “Marine Cargo Policy Number” as denominated in the Risk Note reads: “Open Policy-0001-00410,” while the copy of the Marine Insurance Policy submitted before us is numbered “M/OP/95001-410.” The variance may ultimately be explainable, yet the non-presentation of the Marine Insurance Policy before the trial court precludes the due evaluation of the reason for the difference in numbering.

All told, we hold that Malayan was not able to establish its cause of action as stated in its complaint, based as it was on its right to be subrogated to ABB Koppel under the insurance contract which it failed to present as an actionable document, or as evidence before the trial court. The result reached by the Court of Appeals – the dismissal of the instant complaint – is thus correct. As such, there is no need to consider the other issues raised in the petition.

WHEREFORE, the petition is DENIED. Costs against petitioner.



Associate Justice



Associate Justice



Associate Justice                                    Associate Justice


Associate Justice


I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.


Associate Justice

Chairperson, Second Division


Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.


Chief Justice

[1]See note 2.

[2]The petition names People’s Aircargo & Warehousing Corp. (Paircargo) as a co-petitioner along with Malayan, but does not contain any attached Secretary’s Certificate or Board Resolution from Paircargo authorizing the filing of the present petition. This point was raised by respondent Regis Brokerage Corp. (Regis) in its Comment (see rollo, pp. 54-55), and in the Reply thereto, only Malayan is identified as a petitioner, id. at 89. It also appears that Paircargo was represented in the Court of Appeals by Atty. Pedro Santos, Jr. (see CA rollo, p. 99), but he did not file any pleading in behalf of Paircargo before this Court.

The case records reveal that Paircargo was a co-defendant of Regis in the complaint filed by Malayan before the Metropolitan Trial Court (MeTC) of Manila. The MeTC absolved Paircargo from any liability, although the counterclaim posed against Malayan by that company was also dismissed. (See id. at 35-37.) Regis alone filed a Notice of Appeal from the MeTC decision (see id. at 87). The RTC of Manila affirmed the MeTC ruling, causing Regis to file a petition with the Court of Appeals seeking the dismissal of the complaint against Regis,  “or by finding Regis free from liability, and declaring Paircargo solely liable to Malayan, in accordance with Regis’s cross-claim”(id. at 14). The Court of Appeals opted to dismiss Malayan’s complaint against Regis, instead of adjudging Paircargo liable in lieu of Regis.

Given these premises, there would be no sensible reason for Paircargo to join Malayan as a co-petitioner before us, especially since the petition does not seek any favorable relief in favor of Paircargo. Neither is there any indication, apart from Paircargo’s denomination as a petitioner in the petition prepared by Malayan’s counsel alone, that Paircargo intended to join Malayan as petitioner. The fact that in its Reply, no more advertence was made to Paircargo as a petitioner, bolsters the conclusion that Paircargo was erroneously joined as a petitioner and that such error is ultimately is of no legal consequence to this petition. Since Section 11, Rule 3 authorizes courts to drop misjoined parties without consequence to the pending action, the erroneous joinder of Paircargo as plaintiff should have no legal effect to this petition.

[3]Rollo, pp. 27-33. Penned by Associate Justice Edgardo Cruz of the Court of Appeals Former Special Fourteenth Division, concurred in by Associate Justices Juan Enriquez, Jr. and Sesinando Villon.

[4]Id. at 35-36.

[5]Id. at 27.

[6]Id. at 28.




[10]See CA rollo, pp. 25, 56, 61.  See also rollo, pp. 67-68.

[11]CA rollo, pp. 24-37.  Penned by Judge Amelia Fabros.

[12]Id. at 18-23.  Penned by Judge Eduardo Peralta, Jr. of the RTC Manila, Branch 17. The award of attorney’s fees was excluded “for want of factual and legal foundations therefor.” Id. at 22.

[13]Rollo, p. 31.


[15]Id. at 32.

[16]Id. at 35.

[17]See id. at 35-36.

[18]Supra note 15.

[19]Id. at 32.

[20]“Malayan did not present [before the Court of Appeals] the aforecited marine open cargo policy as would indicate the date of its issuance.” Resolution dated 5 April 2006 (denying Malayan’s Motion for Reconsideration), supra note 17.

[21]Tan v. COMELEC, G.R. Nos. 66143-47 & 166891, 20 November 2006, 507 SCRA 352; Matugas v. COMELEC, 465 Phil. 299, 312-313 (2004), citing Telephone Engineering & Service Co., Inc. v. WCC, G.R. No. L-28694, 13 May 1984, 104 SCRA 354; Cansino v. Court of Appeals, G.R. No. 125799, 21 August 2003, 409 SCRA 403; Gonzales-Precilla v. Rosario, 144 Phil. 398 (1970); De Castro v. Court of Appeals, 75 Phil. 824 (1946); Dayrit v. Gonzales, 7 Phil. 182 (1906).

[22]See rollo, p. 67.

[23]CA rollo, p. 44.

[24]Id. at 43-46.

[25]Rollo, p. 60.

[26]G.R. No. 77530, 5 October 1989, 178 SCRA 357.

[27]Id. at 360.

[28]Id. at 360-361.

[29]V. Francisco, I The Revised Rules of Court in the Philippines (1973 ed.),  p. 587.

[30]Id. at 537.


[32]CA rollo, p. 56.

[33]Id. at 78.