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 .
What it is?
Art. 14 No. 40-FZ “On Compulsory Motor Liability Insurance” indicates that the insurer who has compensated the victim under the insurance contract transfers the right to claim the amount spent from the culprit of the accident. That is, after the insurance company has paid the victim for car repairs or paid monetary compensation, it may demand that the culprit compensate her for the damage and pay this amount.
The right of recourse (recourse) by the person who compensated for the harm to the person who caused it is formulated in Art. 1081 of the Civil Code of the Russian Federation.
A recourse claim from an insurer is an unpleasant situation. On what grounds can the insurer make such a claim?
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.
Euro protocol and regression – what does the 2021 law say?
Regression is, first of all, a right. In our situation, the insurance company has the right to recover the money paid to the victim for failure to fulfill the obligations of the culprit in cases established by law. We have already examined in detail the issue of how to properly notify your insurer to the culprit. It's time to figure out what to do and what to do if you didn't do this at all or didn't manage to send the notice on time.
If you have not submitted the European OSAGO protocol to the insurer within 5 days, drawn up in case of an accident, and the insurance contract itself was concluded before May 1, 2021, then the law is on the side of the latter. Let us imagine in the form of a logical chain where such a right arises for an insurance organization:
- clause 3.8 of the Insurance Rules obliges the culprit to send his notification form within 5 days to the insurance company with which he entered into an MTPL agreement; this is also prescribed by the Federal Law on Compulsory Motor Liability Insurance FZ-40 in paragraph 2 of Article 11.1;
- If this is not done, then the insurer is given the right of recourse for failure to notify under subparagraph “g” of paragraph 1 of Article FZ-40, but only if the MTPL policy was purchased before May 1, 2021.
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.
In what cases does it happen?
Article 14 of the Law “On Compulsory Motor Liability Insurance” provides an extensive list of grounds on which a claim for damages may be made. This is the intentional commission of an accident, the state of intoxication of the guilty driver at the time of the accident, the expiration of the vehicle diagnostic card at the time of the accident, etc.
Since we are talking specifically about the Europrotocol, we are mainly interested in point “h”. It talks about a situation where the culprit began repairing or disposing of his car without waiting for the required 15 days to pass, and/or did not submit his car for inspection and examination at the request of the insurer.
Find out more about what the culprit of an accident should do after drawing up the European Protocol, as well as the consequences of his incorrect actions, in this material.
From the video you will learn in what cases the insurance company has the right of recourse against the culprit of the accident:
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.
Regression under the European Protocol and its legal basis
A recourse claim is made against the culprit of the accident if the traffic accident was registered according to the European protocol; this is a fairly common occurrence nowadays. This situation arises due to simple ignorance of the legislation on compulsory motor liability insurance.
Let me briefly give an example of what a recourse claim is. At the premiere of a loan with a guarantee. For example, the main debtor was unable to repay the loan and the debt had to be paid to the guarantor; if the guarantor paid the loan in full for the main debtor, then the guarantor receives the right to claim the amount of the paid debt from the main debtor. In this case, the main debtor no longer owes the bank but the guarantor who repaid the loan for him. In short, this is a recourse claim.
What to do if the person at fault for the accident does not have a compulsory motor liability insurance policy?
How to receive payments for an accident (under the MTPL policy, from the culprit of the accident)?
Or another example, an employee, while performing his job duties, could damage the property of a client who came to the organization, or could damage rented equipment, in this case, the organization compensates the damage to the injured party (the owner of the equipment), and then makes recourse claims against the employee who caused the damage , that is, it recovers from the culprit, in whose place the damage was compensated, the amount paid to compensate the injured party.
It’s the same with the insurance company, the insurance company compensates for the damage to the victim, but since the tortfeasor committed certain violations of the legislation on compulsory motor liability insurance, the insurance company has the right to demand the amount of damage that was paid to the victim from the tortfeasor (the culprit of the accident).
In order not to fall for the bait of the insurance company, today I want to tell you about the recourse under the European protocol, as well as all the subtleties that will help you avoid such a problem, even if the insurance company has already filed a claim against you or presented you with a claim, all is not lost and there is a chance to avoid payments under a recourse claim.
Based on paragraph 2 of Article 11.1 of the Federal Law on Compulsory Motor Liability Insurance, if the participants in a road accident filed an accident without calling police officers to the scene, simply filled out an accident notification form, then in such a situation, based on this paragraph, the law requires that it be sent to both the culprit and and the victim his copy of the notification of the accident to the insurance company in which each of the participants in the accident insured his liability. A copy of the notice must be sent to the insurer within 5 working days from the date of the accident, the day of the accident is not counted.
The main thing here is not to confuse the deadlines and not be late! Let me give you an example: if you got into an accident on Friday, then you must send the accident notification form to the insurance company by the end of next week, that is, you have exactly a week to send the notification. If you get into an accident on Friday, it doesn’t matter if it’s morning or evening, then you have 2 days of the weekend ahead (which are not counted, since only working days are counted) and a new week, you will have exactly 5 working days from Monday to Friday, for sending a notice.
But here, not only is it not the sending of a notice that is the reason for presenting recourse claims to the culprit of an accident, registered under the European protocol, there are also other reasons for presenting recourse claims.
What to do if you are denied compensation under compulsory motor liability insurance? (payment or repair)
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.
Notification of an accident
Algorithm of actions.
Registration of an accident, as a rule, is the task of traffic police officers, but today it is legally permitted to register an incident on the road by the participants themselves. This approach has many advantages, primarily for the drivers themselves.
You can solve all the issues in 20-30 minutes and go about your business, whereas you can wait 2-3 hours for the road patrol workers, regardless of weather conditions and road conditions.
However, registration of a traffic accident using a European protocol requires the fulfillment of a number of conditions and formalities.
You cannot register such an incident in the following cases:
- if there is damage to health or death;
- if more than two cars were involved in the accident;
- in the case when at least one driver has a policy different from MTPL, or has no insurance at all, or his document is invalid or counterfeit.
In such cases, it is necessary to call the police and act according to the traditional scheme. You can draw up a Europrotocol if:
- if only two vehicles were involved in the accident;
- only material damage was caused;
- if the participants in the incident have no disagreements;
- both drivers must be insured, have a compulsory motor liability insurance policy or a Green Card.
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.
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…
- What to do if the person at fault for an accident does not have compulsory motor insurance
- What documents are needed to file an insurance claim under MTPL?
- An example of filling out a notification of an accident under MTPL
- Is the culprit of the accident paid insurance under compulsory motor liability insurance?
When is protection against recourse claims from insurance companies necessary?
First of all, it should be noted that there is no single way to avoid paying insurance recourse. According to the law, any intentional violation of traffic rules that results in an accident may be the basis for the recovery of compensation. In what cases does the insurance company require recourse? This especially applies to drivers who:
- do not have a license or policy;
- are in a state of intoxication;
- did not pass the technical inspection on time;
- fled the scene of the accident.
A completely different case is an accident by chance, a minor violation in the presence of all the necessary documents. Even if the grounds for the claim are completely legal, it is not necessary to agree with it immediately. The person at fault for an accident always has the opportunity to reduce the amount of claims by proving the presence of errors in the insurance company’s calculations.
Watch the video on our YouTube channel about insurance compensation, if the insurance company does not pay, what actions will be most effective in restoring the right. Write your question in the comments and an insurance claim lawyer will answer you for free: professionally and on time.
