The person at fault for the accident is not insured or the MTPL payment limit has been exceeded

Publication date: 03/04/2019 Number of views: 5927

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.

Is a partial refund possible?

The insurer pays damages according to the amount determined by the vehicle assessment expert.

The most common situations occur when an expert establishes a certain amount of damage, after which the victim declares that the damage caused is more than established. In these cases, the victim turns to the culprit of the incident with a demand to pay the resulting difference. The appeal occurs to the culprit, and not to the insurance company, precisely because it will be much easier to receive payment directly from a specific person than from the insurance company.

In what cases is compensation required?

Insurance claim: rules for filing

Insurance Fraud

Pre-trial settlement of insurance disputes

There are several cases in which insurance companies require the culprit to pay for damages from an accident:

By way of subrogation (Article 965 of the Civil Code of the Russian Federation), the insurance company demands that the culprit reimburse the funds that it paid to its client under CASCO. Thus, initially the insurance company pays money to its client, after which it recovers the same amount from the culprit of the accident;
By way of recourse (Article 1081 of the Civil Code of the Russian Federation) under compulsory motor liability insurance, in accordance with Federal Law No. 223, Article 14 . In other words, the insurer demands compensation for the damage that was paid to the victim under the compulsory insurance policy.

The reasons for applying recourse are special illegal actions of the perpetrator of the incident, which are discussed in detail in Article 14 of the Federal Law.

Namely:

The culprit of the accident specifically caused harm to the life or health of the victim;
The culprit caused harm while driving in a state of alcohol (or other) intoxication;
The culprit did not have the right to use the car (for example, there was no license);
The culprit fled the scene of the accident.

Pre-trial proceedings

Before going to court, the Investigative Committee is obliged to take pre-trial measures against the identified culprit. Meanwhile, the claim cannot be accepted for consideration if work has not been done to recover costs before going to court.

Situations often arise when the insurance company, without understanding the details of the insured event, sends a pre-trial claim. The letter in which the insurer demands compensation for expenses incurred does not have a unified form, but must contain the following points:

Data of the recipient of recourse claims.
Detailed information about the accident.
Conclusion of the examination.
Witness's testimonies.
Amount of compensation sought.
Data and details for transfer from the insurance company.
The allotted time limit for fulfilling the requirements.
Legislative references that the insurer relied on when making a claim against the driver.

The document must be accompanied by a list of evidence on which the insurer relied when making claims:

calculation of repair costs and purchase of parts;
an examination report with a photo from the scene of the accident;
financial documents on settlements made;
certificate from the State Traffic Inspectorate;
a violation order issued by the traffic police;
a photocopy of insurance and documents for the car repaired at the expense of the company;
a document recognizing the event as insured (a corresponding act prepared by the insurance company).

The driver against whom the amount of compensation is being recovered must receive a document drawn up in a legally competent manner, with evidence in the form of documentary attachments. In practice, the Investigative Committee often sends a simplified version of the letter, without providing evidence, indicating only the main circumstances of the case:

Brief information about the incident.
Amount to be recovered.
Articles of laws allowing for recourse.

Such a document was drawn up in violation of the pre-trial settlement procedure, and therefore cannot be recognized as a legal basis for recognizing the pre-trial procedure as having taken place.

Pre-trial practice

Pre-trial proceedings are carried out, as a rule, with subrogation under CASCO. Initially, the insurance company does not sue the culprit, but sends him a claim, urging him to compensate for the damage of his own free will. It is worth noting that the culprit may receive a letter of claim 2 – 2.5 years after the traffic accident. However, here it is important to understand how justified the requested amount is and whether you need to defend your rights or is it better to agree on an installment plan. As a rule, insurance companies are cooperative when it comes to installment plans.

Procedure for filing a claim

It often happens that the insurance claim is a paper stating the fact of the accident, listing the articles of the law and issuing an invoice. This requirement is unfounded, since a number of documents must be attached to it, namely :

Official papers confirming the amount of damage caused: a report on the inspection of the vehicle by experts with a detailed description of the damage. Original photographs and an estimate of the amount of repairs, or a receipt for payment must also be attached;
Papers that confirm guilt: a certificate of a traffic accident, a conclusion on an administrative violation or a court conclusion;
Papers that confirm the right to subrogation: a copy of the vehicle’s passport, a photocopy of the policy and payment receipt, a copy of the insured person’s statement that an insured event has occurred.

Additional documents:

Only after the insurance company pays compensation to the victim does it have the right to recover funds from the culprit;
Therefore, the amount of the monetary claim against the perpetrator must be within the amount paid to the victim.

Note: the employer must pay for the culprit of a traffic accident who became such while fulfilling his official obligations.

Court decisions

Usually the court makes a decision in favor of the policyholder. The culprit of the traffic accident is obliged to provide funds. However, the plaintiff is obliged to comply with all established norms and formalities.

Insurance companies have the right to put forward counterclaims. This is permitted if the offense was committed while drunk or under the influence of drugs. In this situation, regression operates. A similar rule applies if the victim was provided with payment, and the person responsible for the incident did not have compulsory insurance. In 2021, a citizen is automatically found guilty of an incident in the following situations:

the car was driven by a person who does not have a license or was unable to pass a test on knowledge of traffic and driving rules;
the driver was a citizen who was deprived of access to control the car;
the person had a driver’s license, but it was issued for a different category of vehicle;
the citizen deliberately fled the scene.

Attention:
If the culprit of the incident is not included in the insurance, a counterclaim for damages must be filed.

Legal assistance

If after an accident the insurance company demands compensation for damages, you should contact an experienced lawyer. He can use several protection methods:

Reduce the amount of damage caused in an accident . If the insurance company reimburses the victim or its client, the at-fault party has the right to dispute the amount of the payment. The insurance company has the right to request compensation for damage only if it was correctly calculated;
Appeal the legality of the payment . In this situation, a general legal examination of the official papers is carried out, which became the basis for the insurance company to pay its client. If it is discovered that there are errors in the documents, or if it is determined that there are not enough documents, the payment is considered illegal. Thus, the insurance company is deprived of the right to demand compensation for damage from the culprit of the road accident;
Appeal the fault of the person responsible for the accident . In some cases, during an examination, lawyers reveal that the person at fault in the traffic accident is not guilty, or is partially guilty. And here, even when a claim has been received from the insurance company stating that you are the culprit of the road accident, you have the right to try to prove your innocence in court.

Damage assessment in case of road accident

Before going to court to recover damages from the culprit of an accident in 2021, you must obtain an expert opinion. To do this, you will need to contact an independent company that has permission to conduct such events. The expert must fully determine the extent of damage caused to the car. This is a rather delicate process. The specialist must have skills and experience. The expert will determine the amount needed to compensate for the damage to the car.

To conduct an independent examination, you will need to prepare a package of documents. The list should include:

PTS;
protocol drawn up at the scene of the incident;
STS;
citizen identity card.

Please note:
The list of papers may vary depending on the internal policies of the selected organization. The examination takes up to 5 working days. It is possible to reduce the process to 1-2 days. However, expedited damage assessment may cost more.

Can insurers cheat?

There are frequent cases when, during subrogation, the insurance company demands compensation for damage in an amount greater than that which was reimbursed to the client . For these purposes, they provide dubious calculations that can be easily challenged by a professional either before the trial or in court itself. This means that you should not immediately pay the invoice issued to you in your claim. When there is doubt about whether the repair amount is real, it is recommended to understand all the documents that contain information about the damage assessment, and also check the accuracy of all calculations. You can check your calculations by answering the questions below:

To what extent do car repair work correspond to the damage indicated in the traffic accident certificate? Perhaps you will find damage that is not justified?
Perhaps there are unnecessary parts on the list of parts to be replaced?
Perhaps the same spare parts were counted several times?
How realistic are the cost of parts and standard hours?

It happens when insurers falsify documents in the hope that the person responsible for the accident is incompetent. For example, the injured driver estimated the cost of repairing his car at a much higher amount than the insurance company paid him. And insurers, demanding compensation for losses, present the documents submitted by the victims to the culprit of the accident.

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Step-by-step instructions for recovering damages from the culprit of an accident peacefully

If the culprit of the incident does not have compulsory motor insurance, or the damage caused exceeds the permissible limit, the money will have to be recovered from the driver. In 2021, the process of compensation for damage from the culprit of an accident can be completed peacefully. To do this, it is recommended to try to negotiate. The procedure is called pre-trial recovery of damages. To oblige the culprit of the incident to provide payment, it is necessary:

Get the protocol. The document contains information about all citizens who were involved in the accident. The registration addresses of all persons, the date and location of the incident, as well as the brands of cars involved in the incident are recorded there.
Contact your own insurance company, request a certificate of possible compensation, or receive an official refusal to pay.
Contact an independent expert company. The date for the examination will be set here. The other party must be notified of the procedure. Actions must be completed 3 days before the vehicle is inspected by an expert.
Write a pre-trial claim. The document indicates the amount of funds requested, the method of calculation and the period within which funds must be provided. The claim must be supplemented by a package of documents.
Wait for the specified period. If a person makes the calculation independently, the obligations are considered fulfilled. In other situations, it is recommended to go to court. Claims must be submitted only 7 days from the date of presentation of the claims.

IMPORTANT
The demand for recovery of damages from the culprit of the accident must be drawn up legally correctly. If there is no legal knowledge, you need to involve a car lawyer in the proceedings.