What to do if the culprit of an accident does not have compulsory motor liability insurance?

Publication date: 03/04/2019 Number of views: 5854

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.

When is legal action necessary against the culprit of an accident?

It's no secret that after an accident, an insurance company compensates for damage only within the insured amount. In order to fully compensate for the damage caused from the culprit of the accident, the victim has the right to go to court with a demand to recover, in addition to the insurance amount, the actual amount of damage.

The need to recover damages from the culprit of an accident arises when:

• the person at fault left the scene of the accident
• the person at fault for the accident did not have title documents for the vehicle
• the accident that occurred goes beyond the scope of insurance cases in which monetary compensation was provided under compulsory motor liability insurance
• the injured person wishes to exercise the right to recover compensation for moral damage from the culprit
• the calculation of the amount of damage was greater than the permissible limits of motor third party liability under compulsory motor liability insurance (400,000 for payments to the victim in connection with damage to property and 500,000 for payments to the victim in connection with damage to life and health, also 25 thousand for payments for funeral expenses)
• There is no insurance contract . Not all drivers insure their civil liability against damage and drive without “insurance”. And some manage to issue a compulsory motor liability insurance policy in the “gateway”, that is, to purchase a compulsory motor liability insurance policy from unscrupulous sellers, that is, a fake one. Then the insurance company refuses to pay
• recovery of wear and tear from the culprit of the accident. Under compulsory motor liability insurance, a citizen will receive insurance compensation taking into account the wear and tear of the parts being replaced. He may be paid a small amount if the car is “old”. Therefore, the injured party has the right to appeal directly to the tortfeasor with a demand for recovery of the difference.

Recovery without taking into account wear and tear from the culprit

Very often, the cost of repairs turns out to be significantly more than what the insurer paid. This happens if the car was badly damaged in an accident, or the car is of great value.

Then the injured party has the right to demand compensation for damage from the culprit of the accident that exceeds the limit provided for by the insurer’s liability without taking into account wear and tear of parts. That is, a citizen injured in an accident can receive from the insurance company the cost of restoration repairs, taking into account wear and tear of parts, and the citizen can receive all other damage from the party at fault in the accident.

Lawyers call this the difference between the insurance payment and the actual damage. In this case, the victim must prove that the amount of his damage is actually greater than the amount received from the insurance company. The proof is, as a rule, a well-executed examination, or checks and receipts for payment for parts and work. If the person at fault for the accident refuses to voluntarily pay for the damage, you can safely go to court.

USEFUL : read the full procedure for compensation for damage after an accident at the link

Actions of the person responsible for the accident

The most important thing is that if you do not agree with the guilt, but they are trying to blame you and the situation can be argued without thoroughly understanding it that you are the culprit, then until you are sure, do not agree with the guilt, and even if the traffic police inspectors came and accused you of an accident , appeal this decision and it is best to appeal to the court and you have exactly 10 days from the moment the traffic police inspectors made the decision.

The procedure for compensating for damage to a car under compulsory motor liability insurance

Actions after an accident are standard for both the culprit and the victim, but the method of registering the accident also plays a role:

• If both participants in an accident do not agree on the fault, then in such cases we call traffic police inspectors, who, upon arrival, draw up an accident diagram and fill out the necessary documents;
• If the culprit is identified, then you can call an emergency commissioner, who will come and fill out the necessary documents on the spot, draw up a diagram of the accident, and after which you can go to register the accident at the nearest traffic police department;
• You can fill out a notification about an accident, the so-called “Europrotocol”, this notice is filled out by both participants in the accident at the scene of the accident, without the participation of traffic police inspectors, and then each participant in the accident takes their own copy of the “Europrotocol” notice to their insurance company. Registration of an accident under the “Euro Protocol” is possible if the damage to the victim did not exceed 50,000 rubles, there were no health injuries in the accident and no property was damaged except two cars, there were no more than 2 participants in the accident, the participants in the accident agree with the guilt;
• The most standard way is to call the traffic police and wait for them to arrive to file an accident.

As the person responsible for the accident, you must record the fact of the accident on video or a camera. Photos or video materials should clearly show damage, the location of cars on the road, debris, debris, braking distances and everything that may be related to the accident.

Be sure to exchange contact information with the second party involved in the accident.

If there were witnesses to the accident, their contact information must be recorded.

Next, we decide how to file an accident, call traffic police inspectors, an emergency commissioner, or fill out a notification about an accident.

Once again I want to remind those who disagree, even if the inspectors, in your opinion, behaved incorrectly, accused you of violating traffic rules and you became guilty, still sign all the documents related to the accident (after reading), but indicate next to the signature that you do not agree with you were not at fault for the accident and did not violate the traffic rules and will appeal the decision. Remember that you have 10 days to appeal the decision of the traffic police officers, and it is best to appeal against guilt in an accident in court, you should not try other options, just someone hopes that it is realistic to appeal against guilt in an accident in the order of subordination to the traffic police, I’ll tell you Honestly, the number is dead and such disputes end in court.

Will you receive a resolution to hold you administratively liable (fine) from the traffic police after registration, the question is! For example, if traffic police inspectors come to register an accident at the scene, then most likely the person who violated the traffic rules will be charged with a violation and issued a fine. If you fill out the necessary documents at the scene of the accident and go to the nearest traffic police department for registration, then there is a chance that a fine will not be issued. If you fill out the “Euro Protocol”, then in principle there will be no one to issue a fine to you, since you fill out the notice without the participation of traffic police inspectors.

It happens that the victim offers to compensate for the damage with money on the spot, or after repairs. I’ll say right away that there are quite a few setbacks on the road, and if you fit into an expensive foreign car and the maneuver of the second car seems somehow suspicious to you, and then they come out and immediately demand compensation for the damage in money on the spot, threaten with some kind of deprivation of the driver’s license and other terrible articles of the Criminal Code, then there is a 99% chance that you are dealing with scammers, auto fixers, do not give any money at the scene of an accident and do not agree to any conditions of the second party. We document everything according to the law, and in this case, I strongly recommend that you call traffic police inspectors to the scene of the accident.

If you are called from the insurance company after an accident to inspect your car for similarities in damage on your car and the victim’s car, agree only if you receive a written invitation, call on the phone and demand to come, this is not an appropriate form of notification to the other party, only if you received a telegram or a letter from the victim’s insurance company demanding to provide the car, then only in this case we go to the insurance company on a pre-agreed date and show our car. In this case, the expert who inspected your car must give you a signed inspection report with a stamp, this will confirm that you are on request The insurance company provided your car and there can be no claims against you.

Do I need to file a claim with the person at fault for the accident?

The mandatory nature of compliance with the pre-trial procedure for filing a claim with the person responsible for the accident is not provided for by law; therefore, this document is an option for agreeing on compromises and concessions to resolve the dispute before trial.

The injured person, when resolving the issue of compensation for harm as a result of an accident, can resort to drawing up a claim against the culprit in order to agree on compensation for (material, moral) damage on a voluntary basis, which can subsequently be settled by concluding an agreement between the participants in the accident or a receipt from the culprit .

There are often situations when the culprit voluntarily refuses to pay for the damage caused, then by filing a claim it is necessary to induce this, and also to show the seriousness of intentions to go to court if the requirements specified in the claim are not met.

USEFUL : order a claim from our lawyer, watch a video with tips on drawing up a procedural document for the second driver

How to file a claim against the person responsible for an accident?

To draw up a statement of claim, the law does not establish an official template; it is important to be guided by the norms of the Civil Procedure Code of the Russian Federation; also, claims must be stated taking into account the following basic principles:

1. Briefness of the content set out in the claims . Circumstances must be contained only relevant to the subject of the statement of claim.
2. Content validity . Claims must have rules of substantive and procedural law that also relate to the substantiation of the stated circumstances
3. Content formatting . The text format must be set uniform throughout the entire text, with the most commonly used sizes - 14 point, spacing - 1.5

The statement of claim for compensation for damage caused by an accident by its nature contains the following information:

• ​ name of the court to which the claim is filed
• ​ Full name, telephone number, e-mail for communication between the Plaintiff and the Defendant
• ​ the circumstances of the dispute as a result of which the right was violated, resulting in harm to health or death
• ​motivation of the requirements - what is the basis for the person who received harm as a result of an accident and why
• ​pleading part - what measures, in the opinion of the injured person, should be
• a list of documents necessary to substantiate the circumstances referred to by the Plaintiff
• ​ when the statement of claim was drawn up (date) and the sender’s signature

USEFUL : more advice from a lawyer on filing a claim in court in the next video

How to register an accident according to the European protocol

1. Be sure to follow the traffic rules immediately after a collision - turn on the emergency lights and put up an emergency stop sign to warn other road users about the danger. The sign is installed at a distance of at least 15 meters from road accidents in populated areas and at least 30 meters outside them. Failure to comply with these requirements entails administrative punishment: a warning or a fine in the amount of 1000 rubles (Part 1 of Article 12.27 of the Code of Administrative Offenses of the Russian Federation). If an accident occurs outside the city, in the dark or in conditions of limited visibility, you need to be on the roadway or side of the road wearing a jacket, vest or cape vest with stripes of reflective material.

2. Talk to the second participant in the accident and show him your compulsory insurance policy, check the validity of his compulsory motor liability insurance policy. Take photographs of the accident scene and the damage to the vehicles resulting from the collision.

3. Together with the other participant in the accident, notify your insurance companies about the accident in one of the following ways:

• online, through mobile applications integrated with the portal of public services of the Russian Federation (authorization of both participants in the accident on the portal will be required) - within 60 minutes after the accident ;
• through the ERA-GLONASS emergency call device (if equipped in the car) - by pressing the SOS button within 10 minutes after the accident .

Note! These methods are suitable if the victim expects compensation for damage in the amount of up to 100 thousand rubles, but you and the second participant in the accident have disagreements about the circumstances of the accident, or if there are no disagreements and the victim expects insurance compensation of up to 400 thousand rubles.

If there is no disagreement, but it is impossible to report the accident using the above methods, the injured party has the right to count on compensation for damages in the amount of up to 100 thousand rubles. In this case, you can notify the insurance company about the accident by phone. Make sure the other person involved in the accident does the same.

4. If vehicles involved in an accident create obstacles to the movement of other vehicles, clear the roadway. Otherwise, you and the second participant in the accident face administrative punishment for violating traffic rules (clause 2.6 of the Russian Federation Traffic Regulations) - a fine of 1000 rubles (Article 12.27 of the Code of Administrative Offenses of the Russian Federation).

5. Together with the second participant in the accident, fill out the notification of the accident (Euro protocol) in a mobile application or in paper form. In the first case, enter the details of the accident in an electronic form, in the second - in a paper form.

The procedure for collecting wear and tear from the culprit of an accident

Recovery of wear and tear from the culprit of an accident consists of the following actions:

1. correct registration of an accident in accordance with the European Protocol or calling the traffic police officers if the damage caused exceeded the limit established by motor vehicle liability
2. contacting the insurance company (the insurance company of the culprit) to receive insurance payment for damage caused as a result of an accident
3. drawing up a claim against the person at fault, indicating in the attachments copies of documents confirming the fact of the accident, as a result of which handing it over to the other party with signature and stamp on your copy
4. If there are no answers to your demands, file a claim in court

Total

A brief algorithm of actions in the event of an accident:

1. Keep calm, turn on the video camera on your smartphone;
2. Check the condition of other participants in the accident. If they need help, call the doctors;
3. Put up a warning triangle, turn on your hazard lights;
4. If there is no dispute regarding guilt, draw up a European protocol. If so, call the traffic police.
5. If you are found guilty and you do not agree, do not argue, but seek an expert examination, then file a lawsuit.

If there are grounds, insist on admitting mutual guilt of both drivers. This way you can receive compensation for damages through the insurance company.

If you still have any questions, consult with Honest specialists. It's free.

Recovery of the difference from the culprit of a traffic accident

When collecting the difference between the insurance payment and the actual damage caused as a result of an accident, it is necessary to file a claim with the court at the place of residence of the Defendant, depending on the presented price of the claim:

• Not exceeding 50 (fifty) thousand rubles, then the case has jurisdiction to be heard in the magistrate’s court
• Exceeding 50 (fifty) thousand rubles, then the case has jurisdiction to be heard in the district court

In addition to compensation for material damage, the victim also has the right to recover compensation for moral damage and lost earnings. This category implies an evaluation criterion that is established by the court taking into account all the evidence provided.

Actions of the culprit under compulsory motor liability insurance

If you are not at fault, MTPL insurance will compensate for all damage caused. But the violator cannot count on receiving money. You will have to restore the car from your own funds.

Additionally, it is recommended to provide all possible assistance to obtain insurance compensation for victims. To do this you need:

• Submit your accident notification form to your insurance company within 5 business days;
• Do not repair the car for 15 days after the collision.

These circumstances are also true when filing an accident under the European Protocol; failure to comply with the requirements is grounds for recourse on the part of the insurer. If an accident is recorded by an inspector, the car can be restored on the same day.

If the victim’s vehicle is damaged too much and he does not have enough insurance payment limit under compulsory motor liability insurance, he can turn to the culprit for additional payment. According to Article 15 of the Civil Code of the Russian Federation, he has the legal right to do this.

Is it possible to recover damages from the cyclist at fault?

Bicycle owners are not subject to compulsory insurance due to the fact that the bicycle is not a source of increased danger; therefore, the culprit cyclist is liable in accordance with civil law. Compensation for damage is carried out in court.

To bring the owner of a bicycle to justice, it is necessary to establish the degree of guilt and the presence of intent, as a result of which the court can relieve liability partially or in full.

How can the culprit of an accident reduce the penalty?

Do not forget that you can completely fight off the amount collected from you by disputing fault in a traffic accident. If the procedure for proving the guilt of the second participant is successful, then it will be possible to ask for compensation in your favor.

In accordance with the law, reducing the amount of recovery from the culprit of an accident is possible by challenging the assessment of damage. You have the right to submit a forensic examination of the case or conduct your own, challenging the conclusions of the specialist who prepared the report for the second party in the case, watch the video with tips on challenging the examination of the case:

What to do if the person at fault for the accident has no money?

If a settlement agreement was not concluded between the culprit and the victim as a result of an accident at the court hearing and it was not possible to reach an agreement to voluntarily compensate for the damage suffered, then first of all, after the decision is made, it is necessary to obtain and submit to the bailiff service at the place of registration of the guilty person a writ of execution for initiation of enforcement proceedings.

The deadline for filing a writ of execution is three years from the date the court decision enters into legal force. Also, enforcement proceedings will not be terminated until the culprit’s obligation to you is properly fulfilled.

The procedure for the enforcement of a writ of execution begins when the debtor is entered into the database of enforcement proceedings, subsequently all bank accounts of the debtor are automatically blocked, a request is sent to the Federal Tax Service, and if there is information about employment, wages will be seized and up to 50% will be deducted in your favor, also the debtor is prohibited from traveling abroad.

The restrictions provided for by law are a guarantee for the restoration of the violated rights of citizens.

INTERESTING : read our legal practice on collecting damages from the culprit of a traffic situation, and also watch a video with a review of an injured pedestrian