Review of judicial practice on compulsory motor liability insurance

Publication date: 03/04/2019 Number of views: 5929

Author: Ermakov Andrey Valerievich Lawyer, partner of the Legal Agency of St. Petersburg Articles written: 20

The situation when an insurance company files a lawsuit against the culprit of an accident in order to recover material damage based on the compensation paid to the injured party is becoming more and more common every year. If previously relatively little-known organizations that had close ties with collection agencies committed similar sins, today you can get a claim for subrogation or recourse from almost any insurance company. Recently, there has been increased activity on the part of the insurance company, which is trying to compensate for its losses under CASCO or OSAGO contracts by filing lawsuits against those responsible for the accident. There is a trend: if the accident occurred in 2015 or 2021 (the statute of limitations is about to expire), and the amount of paid material damage exceeds 100-120 thousand rubles, you can expect a quick summons from the court. There are many explanations for this: the unstable economic situation in the country, a sharply increased number of vehicles, competition in the market, tightening legislation in the field of insurance companies. In order to somehow preserve their assets and not become bankrupt, they are forced to resort to subrogation and recourse claims. What to do if the insurance company sues the person responsible for the accident, what is the difference between recourse and subrogation, is it possible to reduce the amount of payments for a lawsuit and how to protect your property rights? Answers to these and related questions are provided by professional lawyers in the field of insurance law and civil law.

Briefly about OSAGO

OSAGO is a policy purchased by a motorist in order to ensure the preservation of his property rights and interests. Purchasing insurance helps protect the driver from losses associated with compensation for damage caused to vehicles or the health of others as a result of an accident.

Attention! Taking out an MTPL policy is the responsibility of every driver and this is enshrined in Federal Law No. 40-FZ. If a motorist does not have insurance, he will be subject to a fine of 800 rubles.

Moreover, if the driver has not taken out a policy, this is not an obstacle to filing a claim in court if a dispute arises with the insurance company of the person responsible for the accident due to non-payment of money for the damage caused. You can purchase a car insurance policy in one of two ways:

Through personal contact with the insurance company.
Through the website of the relevant company.

The insurance company has no right to refuse to issue a policy. If a car owner is faced with a similar situation, he does not need to go to court with the insurance company. It is enough to file a complaint with the prosecutor's office, the RSA or the Central Bank.

To obtain insurance, the driver must present a passport, license, vehicle registration certificate and vehicle registration certificate. The insurance company calculates the amount of the policy independently, based on the parameters of the car, the presence of fines from the owner and legal norms.

Advice! The most popular companies issuing compulsory motor liability insurance are RESO, Rosgosstrakh and Ingostrakh.

In what cases is it worth starting a lawsuit, and in what cases will it be futile?

The undisputed leader in the MTPL service market is the Russian State Insurance Company (Rosgosstrakh). Although it is not a monopoly, and many other insurance companies also provide auto liability insurance, filing a claim will still be considered by this organization. After all, many Rosgosstrakh policy holders are faced with certain violations by the insurer.

In terms of compulsory motor liability insurance, the most common violations are the following:

If the company is late in paying compensation or fails to meet other deadlines. For example, you can sue for delays in repairs.
When the damage from a traffic accident exceeds the amount payable upon the occurrence of an insured event. In this situation, the insurer is not at fault as such, but it is possible to sue for this reason.
If they paid little and the compensation does not cover the expenses of the injured party. Going to court will be effective only if, under the terms of the contract, the amount of insurance compensation was expected to be larger. Even if part of the insurance payment is received, the rest can be recovered in court. But, as a rule, the insurer uses some cunning. A small part of the damage is underpaid, which is why many car owners do not go to court due to the fact that more time and money can be lost than the insurance company will ultimately pay.
If the insurer refuses to classify the incident as an insured event. In such a situation, the insurance organization will refer to the fact that the vehicle received damage not from another car, but from third-party objects. Accordingly, the insurance company will not make a payment.
Refusal to pay citing the fact that the person responsible for the accident was drunk.
In the event that the person responsible for the accident fled from the scene, but the traffic police managed to record his data.

ATTENTION !!! Consideration in court will not bring the desired result in case of refusal on the following grounds:

If you want to recover moral damages or lost profits, you will only compensate for the damage actually incurred.
If the policy insured is not the vehicle that was involved in the accident, but another one.
The accident involved a vehicle transporting dangerous cargo.
The accident occurred in connection with the performance of official duties that are potentially dangerous to human life and health. Damage to the health and life of such people is compensated in a completely different manner.
The accident occurred during a test drive.

Separately, it is worth considering the case when the CBM is overestimated, for example, due to a mistake by the insurance company’s employees. Here it is better to go not to court, even if the insurer refused to reduce it, but to the Russian Union of Automobile Insurers. Checking the database of this organization will help determine the exact bonus-malus ratio. But you won’t be able to get a refund of what you overpaid for insurance.

Damage caused to valuable property is not covered under this type of insurance. After all, the value of such property can be very high, and it itself can be insured.
Falsification of accident results.
The policyholder missed the deadline for applying for payment, incorrectly filled out the form for reporting the occurrence of an insured event, or committed another violation of the terms of the MTPL agreement.
The MTPL policy has expired or is fake. In this case, compensation can only be recovered from the culprit, but not from the insurance company.

Reasons for disputes with insurance companies

According to statistics, the main problems that arise between the insurer and the policyholder are standard. The causes of disputes are divided into three groups:

Refusal to cover repair costs and other payments.
Reduced compensation amount.
Delaying payment deadlines.

Often the question of how to sue an insurance company arises in the following specific situations:

The insurer refuses to acknowledge the existence of an event due to which the driver must be paid a set amount (for example, if the damage to the car was not caused by an accident).
The car owner does not have a compulsory motor liability insurance policy.
The driver violated the procedure for completing procedural papers.
There is a dispute about the extent and nature of damage to vehicles or harm to the health of injured citizens.
The guilt of one of the motorists has not been proven or it is mutual.
There is no information about the second participant in the accident (for example, he left the scene of the collision).
The insurance company refuses to pay compensation for other reasons.

It is important to know! Disputes often arise due to the fact that drivers draw up a European protocol in case of an accident in the absence of traffic police officers, although this is permitted by legal norms.

In any of these cases, the motorist must follow the procedure for resolving the dispute: first, submitting a claim to the insurer, then filing a claim in court under compulsory motor liability insurance. Nowadays, winning a legal dispute with an insurance company is not so easy. This is due to the fact that due to frequent cases of fraud by car owners when concluding assignment (subrogation) agreements, insurers were given the right to choose - to cover the costs of restoration repairs or to repair the car themselves.

How to sue an insurance company

After the occurrence of an insured event, the motorist must contact his insurer with an official written statement. In addition, it is necessary to prepare and collect the necessary documentary support approved at the legislative level. Once the application is submitted, you must wait 30 days. This is the period determined by law for making a decision. During this period, the plaintiff will receive either a refusal to make payments or consent to insurance compensation in the established amounts.

You can often encounter a situation where the insurer does not consider it necessary to notify the applicant about the decision, and therefore tries in every possible way to delay the payment process. In such a situation, the applicant will have the right to demand a penalty if the waiting period for a decision exceeds 30 days. However, it is worth noting that according to the law, the amount of the penalty cannot exceed the amount of insurance compensation. And to obtain a penalty it will be necessary to initiate legal proceedings. However, it is also worth noting that when considering cases of this nature, the court automatically takes the side of the applicant, and therefore insurance companies cannot count on a positive outcome for themselves.

In order to obtain compensation from insurers through the court, it is necessary to prepare certain documentary support, in particular:

documents defining the fact of the relationship between the client and the insurer. This is an MTPL insurance policy, payment receipts, etc.;
opinion of independent experts. It is worth noting that it is on the basis of this document that the final decision regarding the amount of compensation payments will be made. If you have any complaints about the veracity of the document, then you have every right to conduct an additional examination of the condition of your car at your own expense. At the same time, if the insurance company provided deliberately false examination results, it will be additionally charged with the obligation to compensate for all legal expenses;
documents from traffic police officers, if insurance is collected due to being involved in a traffic accident registered by traffic police officers;
a statement addressed to the insurer, which confirms the fact of contacting the insurance company. It should be noted that it is also necessary to provide a receipt from the insurance company, which is issued by insurance employees when accepting documentation for consideration;
If you suffered injuries or other damage as a result of an accident, you must also provide the court with the results of a medical examination establishing the fact of damage and their characteristics.

Important! Before filing a claim in court, it is necessary to fulfill all the conditions of the pre-trial procedure for resolving disputes. If these conditions are not met, the court has the right to refuse to satisfy the claim.

Insurance claims are heard in courts of general jurisdiction. In this case, the claim can be filed both at the location of the insurance company and at the place of residence of the plaintiff. In addition, before filing a claim, you must determine the total cost of the claim. To do this, it is worth calculating and adding up all the expenses that the plaintiff incurred in the process of initiating the lawsuit. The expenses may include the services of a lawyer, state duty, payment for the services of independent experts, as well as the cost of postage. If the total cost of the claim is up to 50 thousand rubles, then the claim should be filed in the magistrate’s court, but if the amount exceeds this figure, then the claim will need to be filed in the district court.

Despite the fact that it is officially permitted to file a claim at the place of residence of the plaintiff, experts still recommend filing the claim in accordance with the place of registration of the insurer. It should be understood that the place where insurance agreements are signed and the place where the insurance company is registered may be different. And initially it is necessary to establish at what legal address the insurer is registered. If the judicial authority is determined incorrectly, the claim may be rejected or referred for consideration to the necessary judicial authority.

Litigation with an insurance company under compulsory motor liability insurance is considered a rather complex process, which requires a good knowledge of the basic regulatory documents relating to the insurance industry. Therefore, if you want to sort out all the problems as quickly as possible, you need to bring on your side a competent and qualified auto lawyer who can protect your interests and achieve justice.

The process of filing a claim and filing it

After all the documents have been prepared, you must write an official written statement of claim, on the basis of which the court will examine your claims against the insurance company. It is worth noting that there are state requirements for filing a claim. They can be found in Art. 131, 132 Code of Civil Procedure of the Russian Federation. If these conditions are not met, the court reserves the right to refuse the plaintiff to satisfy his claims.

The statement of claim must contain complete information about the insurer and the policyholder, including their locations, as well as title documents (for the policyholder - a passport and insurance agreement, for the insurer - a license).

In addition, the claim must carefully describe all claims that the policyholder makes to the insurer. Moreover, each individual claim must be supported by a reference to the current legislation. It can be difficult to draw up a claim in full compliance with legal requirements. That is why you will need the help of a competent lawyer who will help you outline all your claims and demands.

There should be a separate section at the end of the claim stating the amount of compensation you expect to receive from the insurance company. But even here it is worth remembering that the cost of the claim must have a legal basis. That is, all components of the total insurance compensation must be supported by documentation. If you carried out an independent examination at your own expense, then this must be indicated in the claim, and the corresponding document must be attached to it (receipt for payment for the services of the appraiser).

It is worth noting that the statement of claim itself is an ordinary piece of paper. In order for it to receive legal support, it is necessary to attach a certain package of documents to the claim. Please note that if copies of documents are attached to the claim, they must be certified by a notary office. Among the documents that must be submitted to the court are:

insurance documents;
insurance policy;
documents confirming attempts to resolve the problem out of court;
refusal by the insurance company;
expert opinions;
receipts, checks and other payment documentation.

Experts recommend attaching to your claim all documentation that in one way or another relates to your relationship with the insurance company. The court will make a final decision based on the data from the documentation provided, therefore it is in the interests of the plaintiff to attach the most complete documentary package possible.

The statement of claim must be drawn up in two copies. One copy will be filed with the court, and the second will be sent to the insurance company that is being sued.

If the court considers that all legal requirements were not provided for when filing the application, then it has the right to refuse to satisfy the claims. At the same time, no one can prohibit the plaintiff from once again filing a written claim and filing it with the necessary amendments.

Experts recommend that before sending a claim to court, you carefully read the regulatory framework that governs the relationship between the policyholder and the insurer. This will help you correctly formulate your demands and claims, and will make it possible to more competently and thoroughly organize the process of protecting your interests.

Pre-trial claim

Drawing up a pre-trial claim is the first stage of resolving a dispute. If disagreements arise due to a reduction in the amount of compensation, refusal to pay insurance, or violation of payment deadlines, the motorist has the right to file a formal complaint with the appropriate company.

In a pre-trial claim, the driver of the vehicle expresses objections to the illegal actions of the insurer, indicates all the circumstances under which the conflict arose and demands that they be eliminated. If the insurance company does not provide a written response within the period established by law, the car owner has the right to go to court.

Pre-trial resolution of insurance disputes is a mandatory element of the parties’ proceedings. If the driver does not agree with the amount calculated by the insurer, he has the right to engage an independent appraiser to inspect the vehicle and calculate the amount of recovery from the insurance company.

When sending a claim document, a number of requirements must be met:

The claim must be made in writing.
The paper must be presented in two copies: one remains with the insurer, the other is returned to the applicant with a receipt stamp.
The document must contain the necessary information.

The text of the claim must include the following information:

first name, last name, patronymic of the applicant;
passport details and registration address;
circumstances of the conflict, claims, indication of clauses of the contract violated by the insurer;
calculation of the amount of compensation (if the company incorrectly calculated the amount of compensation paid);
demand for payment of a specified amount;
details of the bank account to which the money must be transferred;
signature of the applicant and date of preparation of the document.

All documents related to the case must be attached to the paper.

How exactly to conduct legal disputes with the insurance company?

Court with insurance yourself
Insurance claims lawyer. And most often just a universal lawyer.

But if not a lawyer, then who?

It is extremely difficult to successfully win a case on your own.
A lawyer means an advance payment and no guarantees.

What option then remains to conduct legal disputes with the insurance company?

The most effective way to fight insurance companies in court, which almost no one uses.

This is an appeal to a company that deals only with disputes with insurance companies.

This is exactly what our “Legal Expert” is. We offer legal services for insurance disputes.

Samples of claims for insurance compensation according to the legislation for 2021:

Statement of claim for compensation for damage in an accident: recovery of insurance payment under compulsory motor liability insurance in the form of direct compensation for losses

Statement of claim for compensation for damage caused in an accident, collection of insurance payments and penalties (claim for compensation for damage caused to health and property as a result of an accident: collection of insurance payments and penalties for late insurance payments)

Statement of claim for compensation for damage to health caused as a result of an accident by collecting compensation from the Russian Union of Auto Insurers (RUA) as a result of declaring the insurer bankrupt (sample statement of claim)

Statement of claim for compensation by the insurer for damage caused as a result of an accident, penalties in connection with late payment (to the arbitration court)

Sample pre-trial claim: Claim for insurance compensation or direct compensation for damages caused by an accident