Features of recourse under the European protocol and how to challenge it

What is a recourse claim?

A recourse claim is the right of a person who has paid for damage caused by another person to demand financial compensation for his expenses from the culprit. Recourse in compulsory motor liability insurance is the right of the insurance company to recover from the culprit of the road accident compensation for the costs of paying compensation to the injured party .

This right is enshrined in Art. 14 of the Federal Law of April 25, 2002. No. 40-FZ. From May 1, 2019 This article has undergone significant changes, which affected cases of possible appeal to the court.

The insurance company will be able to make recourse claims after actual compensation for damage to the injured party and only through the court .

How does this happen?

The insurance company of the person responsible for the accident compensates the loss to the driver whose car was damaged in the accident. If the culprit does not provide the insurer with notification of the accident within five working days (Article 14.1, paragraph “G”, Federal Law dated April 25, 2002 N 40-FZ (as amended on December 29, 2017) “On compulsory civil liability insurance of vehicle owners "), the Investigative Committee goes to court. The court makes a decision in favor of the plaintiff and issues a writ of execution. The insurer can contact the bailiff service or directly the client’s bank. In the second case, according to the writ of execution, the amount that was previously paid to the driver injured in the accident is withheld in favor of the insurance company.

The person at fault for the accident may not be aware of the lawsuit at all:

• the summons is sent by the court to the place of registration of the defendant without notification of delivery. If for some reason it does not reach the addressee, the case is considered without him;
• the insurance company is not obliged to contact the client and somehow notify him of the filed claim;
• when submitting a writ of execution to the bank for debiting funds from the account, the consent of its owner is not required;
• Notifications about write-offs do not always arrive. The bank can explain this by a technical failure, problems with cellular communications, due to which the SMS message did not reach the subscriber, etc.

As a result, the insurance company's client is left without funds in his account. If the available amount is not enough to cover the insurer's expenses, it may continue to withhold up to 50% of the funds received into the account until the debt under the writ of execution is repaid.

Protection of the culprit of an accident

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When does the insurance company have the right to go to court?

The insurance company has the right to recover compensation for expenses incurred from the at-fault motorist if he:

• deliberately caused harm to the life or health of the victim;
• drove a car while intoxicated;
• refused to undergo a medical examination;
• fled the scene of a car accident;
• not specified in the MTPL policy;
• drove the car within the period not provided for in the insurance contract;
• independently repaired or disposed of a damaged vehicle without first submitting it for an independent examination;
• had an expired diagnostic card;
• when concluding an insurance contract, provided false information, which resulted in an underestimation of the insurance premium;
• drove a car with a trailer, provided that the insurance does not cover driving a car with a trailer.

Until May 1, 2021, the insurance company had one more reason to file recourse claims. It provided for the possibility of recovering expenses from the culprit recorded under the European Protocol if the culprit did not send a completed protocol to the insurer within 5 business days after the incident.

Article 2 of the Federal Law of 01.05.19 No. 88-FZ, paragraph Zh was repealed . Now there will be no recourse under the European Protocol, even if the guilty party did not send a timely notification to the Investigative Committee.

What happened?

The obligations of drivers under compulsory motor liability insurance are regulated by the corresponding Federal Law of the same name FZ-40. It was he who previously had the following provisions in 2 of his points:

• paragraph 2 of article 11 obligated both participants in the accident in the case of the European protocol to send notification forms to their insurance companies within 5 days,
• pp. “g” of paragraph 1 of Article 14 prescribed that in the event of failure to fulfill the above obligation by the culprit, the insurer had the right to issue him a recourse for the amount of compensation to the injured person.

1. The right of claim of the victim against the person who caused the harm is transferred to the insurer who has provided the insurance compensation in the amount of the insurance compensation provided to the victim, if:

…. g) the specified person, in the case of processing documents about a road traffic accident without the participation of authorized police officers, did not send to the insurer that insured his civil liability a copy of the notification form about a road traffic accident completed together with the victim within five working days from the date of the road traffic accident transport accident;

On May 1, 2021, the corresponding Federal Law No. 88-FZ was issued, which amended the above legal act. To be more precise, there are 2 changes:

1. subparagraph “g” is declared invalid,
2. a recourse claim cannot now be brought against a pedestrian in cases where harm is caused to his health, as well as against his relatives if the pedestrian is killed (Article 5 of Federal Law No. 88).

Thus, as of May 28, 2021, the obligation of both participants in the accident to send their copy of the European protocol notice to each of their insurance companies remained. However, there will be no consequences for failure to fulfill such an obligation: no recourse, no fine, no other liability.

How to avoid payments

The insurance company can make recourse claims either in case of violation of traffic rules or in case of violation of the terms of the insurance contract. To avoid recourse under OSAGO:

• do not drive a vehicle while intoxicated;
• monitor the validity of technical inspection and insurance;
• do not leave the scene of the accident;
• follow the traffic rules.

The insurance company has 15 days to conduct an examination of the vehicle. Failure to present a vehicle for inspection is also grounds for filing a lawsuit. Therefore, show the car to the IC upon request and do not repair the damage until the examination is completed.

How to avoid it and is it possible not to pay?

How not to pay recourse to the MTPL insurer is a very pressing and frequent question among car enthusiasts. Many people receive claims from the insurance company demanding payment quite a long time after the accident , when they have already forgotten about what happened. Car enthusiasts insist that there is very little information about paragraph “g”, which is the basis for most of these requirements, and that not everyone knows the laws.

Well, indeed, the demand for recourse can be unexpected and even shocking. However, established judicial practice suggests that it will not be possible to challenge such a requirement. It's legal. If you do not have confirmation that you submitted the Europrotocol to the insurance company on time, then you will have to pay. That is why the Bank of Russia, in its letter dated March 26, 2019 N IN-06-59/26, asks the insurance company to bring this information to vehicle owners.

The Euro Protocol form is sent to the insurer by Russian Post, in a valuable letter with a list of the contents. The inventory of the attachment should remain with you: it, if necessary, will be evidence that the form was sent in a timely manner. If you have such confirmation, then you need to send it to the insurance company along with a covering letter stating that the obligations to the insurance company were fulfilled on time. Find out more about the deadlines for submitting documents under the European Protocol in case of road accidents in this article.

There is no point in filing a lawsuit if the recourse claim is justified: in addition to everything else, you will also have to pay legal costs. It is best to settle the case out of court.

How to avoid recourse under OSAGO and not spend extra money (after all, you may need it to repair your own car if it was also damaged in an accident)? The only way is to be careful and strictly comply with the requirements of the Law “On Compulsory Motor Liability Insurance”. That is, promptly send your copy of the accident notice to the insurance company and do not begin repairing your car until 15 calendar days have passed.

What to do after an accident

To avoid giving the insurance company a reason to forcefully collect funds under the Euro Protocol, follow the instructions:

• stop;
• install a warning triangle;
• record an accident using photos and videos;
• write down contact details of witnesses, if any;
• fill out the Europrotocol and only then leave the scene of the incident.

It is possible to register a car accident without calling traffic police officers only if three conditions are met simultaneously:

• car owners have an MTPL policy;
• no dead or injured;
• no damage is caused to third parties.

Immediately notify the insurance company by phone about the incident. Submit documents for payment of compensation within 5 days from the date of the accident . But even if the allotted deadline is missed, the Investigative Committee cannot refuse to accept documents.

How to fill out the Europrotocol

To obtain insurance, fill out the form correctly and submit a notification to the insurance company. The Europrotocol is filled out on a special form issued by the insurance company. If it is not available, download the document on the Internet, on the insurance company’s website. Indicate in it:

• date and place of the accident;
• information about car damage;
• data from witnesses of the accident;
• number and date of the MTPL policy;
• information about the persons driving the vehicles.

Draw up a diagram of the accident. It should be clear and not raise additional questions. All designations must have an explanation.

On the back of the form, the participants in the accident describe their vision of what happened, and also enter additional information, for example, about the presence of video recording.

What to do in the event of a recourse claim

After receiving notification of the opening of legal proceedings on the claim of the insurance company, do not rush to enter into a settlement agreement and pay recourse under the European Protocol. This can be done at any stage of the trial.

To obtain compensation from the person responsible for the accident, the insurance company must prove:

• the fact of transfer of money to the injured party;
• the presence of legal grounds for recovery by way of recourse under compulsory motor liability insurance.

Evidence of legal grounds for recourse claims must be documented. For example, if the Investigative Committee refers to the hiding of the guilty person from the scene of the accident, then it must have in its hands a court decision that has entered into legal force to hold the car owner liable for this offense.

In addition to insurance, the company has the right to recover from the person at fault for the accident:

• money spent on examinations;
• expenses for conducting insurance business;
• state fee for filing a claim.

All these costs will fall on the car owner, provided that the insurer proves that he is right.

A motorist against whom legal proceedings are underway to reimburse the insurer’s costs can avoid recourse if he proves that the insurance company’s arguments are unfounded. To do this, involve an experienced lawyer in the trial and file a counterclaim alleging unlawful actions of the insurance company.

Evidence of innocence will be:

• photo and video materials;
• witness's testimonies;
• documents from the accident site.

Even after a court decision is made in favor of the insurance company, do not rush to pay the claim. According to the law, the parties have 30 days before it comes into force.

What should the culprit of an accident do after drawing up the Europrotocol?

Sometimes an accident commissioner may be present when registering an accident. If possible, he will try to collect the notice from all car owners in order to forward them to the insurance company. In general, this is quite normal. But sometimes, after such a notification, the person at fault for the accident receives recourse under the European Protocol. This happens due to the fact that emergency commissioners may be employees of insurance organizations. Therefore, all their actions will be aimed at satisfying the interests of the insurance company.

There is also no guarantee that the emergency commissioner will deliver the documents to their destination in the required time frame and will not lose them. In any case, it will be very difficult to prove the driver is right; he will have to compensate for the damage, as judicial practice shows.

Therefore, you should not immediately trust the emergency commissioner, since after such cooperation it can be very difficult to avoid recourse. But there are options for safe communication with the emergency commissioner:

• you need to give him the documentation in front of third parties;
• You can create photos and videos as evidence, they are not prohibited;
• You can ask the commissioner to issue a receipt.

How to submit a notice correctly

Every responsible driver knows how not to pay recourse under the European Protocol. Therefore, most of them will try to take a correctly completed form to the insurance company’s office in person.

When submitting the notice, the insurance representative writes on the copy:

• seal;
• incoming number;
• date of acceptance of the document;
• details of the receiving party (initials and position).

This will guarantee that the Europrotocol was submitted to the insurance company so that the company does not sue.

Drivers can also use the service of sending the Europrotocol by mail; it can be sent to the Investigative Committee by registered mail with acknowledgment of receipt, and it is also mandatory to make an inventory of the attachment. You can find the postal address of your insurance company in your MTPL policy. Until the completion of the proceedings, you need to keep all documents, papers and receipts from the insurer; the inventory of the attachment will serve as confirmation that you have provided the insurance company with all the necessary documentation.

Auto examination

Car inspection is a prerequisite in the event of an insured event. The length of the assessment will depend on the complexity of the study and many other factors. The expert study usually lasts up to 10 days. The duration of a forensic examination can be 3 times longer – up to 1 month.

Related article: Features of voluntary motor liability insurance

How to reduce the amount of compensation

If the guilty party failed to challenge the claim and the court ordered compensation to be paid to the insurer, then the amount of compensation can be reduced. This will be much easier to do if you take a direct part in inspecting the damage to the damaged vehicle.

Compare the amount indicated in the statement of claim with the amount of actual payment to the injured party. To do this, ask the injured party for a document about the amount of funds received from the insurance company. Submit the received papers to the judge for review.

How else to reduce the amount:

• order an independent assessment of car damage;
• check the list of damages specified in the Europrotocol with the list of repair work performed at a car service center, if instead of paying money to the victim, the car was repaired.

If it is not possible to reduce the amount, then apply for an installment plan. The court must draw up a schedule of payments in favor of the insurance company, taking into account the financial situation of the guilty person.

Arbitrage practice

Cancellation of recourse under compulsory motor liability insurance from May 1, 2021. in case of untimely notification, the insurance company is designed to reduce the number of cases regarding reimbursement of funds by the insurer in the courts. Previously, most insurance companies did not intend to accept notifications from motorists in order to subsequently collect insurance payments from them. But even after the abolition of clause G, insurers have sufficiently compelling grounds to file recourse claims.

Judicial practice on the basis of untimely notification of the insurer is ambiguous. Most decisions were made in favor of the UK. Therefore, the abolition of this basis has made life easier for motorists.

Summary

To avoid paying recourse to the insurance company, remember:

• the insurer can recover compensation only in court;
• recovery is possible only on the grounds listed in Art. 14 of Law No. 40-FZ;
• the statute of limitations for recourse to compulsory motor liability insurance is 3 years from the date of payment to the victim;
• during the trial, try to reduce the amount of compensation;
• agree on installment payments to the insurance company;
• failure to provide notification of an accident within five days in relation to accidents committed after 05/01/19 is not a basis for filing recourse claims;
• all the insurer’s arguments must have documentary evidence;
• During legal proceedings, use the assistance of a lawyer.

More…

1. What to do if the person at fault for an accident does not have compulsory motor insurance
2. What documents are needed to file an insurance claim under MTPL?
3. An example of filling out a notification of an accident under MTPL
4. Is the culprit of the accident paid insurance under compulsory motor liability insurance?

What is the most common reason for recourse under the European Protocol?

Most often, an insurance company demands compensation for damage under compulsory motor liability insurance with the European Protocol for the following reasons:

• if the driver filled out the notice, but did not manage to submit it to the insurance company within five days after the traffic accident;
• if, within the next 15 days after the accident, the driver at fault began repairing the car or disposing of it;
• if the insurance company's requirement to provide the car for inspection within 5 working days has not been satisfied.

Neglect of these very rules allows the insurer to demand recourse from the person who caused the accident.

Related article: What to do if the insurance company does not pay within 20 days

The culprit did not send notification of the accident to the insurer on time

If the culprit of the accident does not have time to inform the insurance company about the accident within 5 working days, then he will compensate the damage to the other driver himself. If the Europrotocol is chosen to document the accident, then after filling it out, in accordance with subparagraph “g” of Art. 14 of the Federal Law “On Compulsory Motor Liability Insurance” and the rules of Compulsory Motor Liability Insurance, the person responsible for the accident can personally visit the insurance office and give them a notification. You can also send a personal copy by fax or registered mail.

Some insurance companies do not use the most honest and humane methods in their work, so that compensation for damage falls on the shoulders of the person responsible for the accident. They take advantage of people's inexperience and ignorance of the laws. For example, if the driver filled out the Europrotocol on time, the culprit submits a notice to the insurance company within a 5-day period, specialists take a copy of the document, and return the original to the driver. In this case, it will be considered that the car owner did not send the Europrotocol and did not notify his insurance company.

Insurance firms may also use other methods to relieve themselves of financial liability, including:

• refusal to accept documents for biased reasons;
• they do not always mark the acceptance of documentation, as a result of which very often these documents are lost in the future;
• if the document was sent as a file via the Internet or by mail, representatives of the organization may say that the letter was empty or that they did not receive it at all.

Important! Even if all participants in the accident have insurance services provided by the same company, the person responsible for the accident must personally notify it of the incident, providing his own copy within the allotted time.

Failure to provide a vehicle for inspection

Each participant in an accident, according to the Federal Law “On Compulsory Motor Liability Insurance”, must provide his own car for inspection within five days, if required by the insurance company. This period may be changed if mutual agreement is reached between the parties. The insurance company sends this requirement to each client by mail.

Repair or disposal of damaged vehicle within 15 days

According to the law “On Compulsory Motor Liability Insurance”, the driver at fault for the accident does not have the right to restore the condition of his car earlier than within fifteen days from the date of the incident. If he violates this condition established by law, he will compensate the insurance company for the amount that it paid to the injured party. This rule applies not only to the culprit of the accident, but also to the rest of its participants.

You can carry out repairs and modernization yourself 15 days after a traffic accident. If the driver has MTPL insurance, then it is better to wait for the official examination. If the insurance agent is in no hurry to notify the client about the upcoming inspection, then you can contact independent organizations to assess the condition of the car. In this case, the driver will have insurance in case any of the other parties decide to dispute this point.

Related article: Will MTPL insurance pay if the culprit is drunk while driving?