What is subrogation under compulsory motor liability insurance from the culprit of an accident: how to avoid it + judicial practice

What is subrogation in compulsory motor liability insurance?

The Latin word "subrogation" literally means "substitution." In the legislation of the Russian Federation, the concept is introduced by the Civil Code in Article 965. In accordance with it, subrogation is understood as the right to recover losses from the causer, which the insurer has already covered for the insured person.

In practice, subrogation under compulsory motor liability insurance from the culprit of an accident looks like this. After an insured event occurs, the insurance company compensates for the damage caused to the property of the insured person. The organization can send a demand for compensation to the at-fault driver, who is obliged to compensate for the payments made, compensating for the damage caused to others.

When the insurer fulfills its obligations to the insured, subrogation occurs. This means that the culprit of the accident no longer owes the victim anything, but his debt has been transferred to the insurance company.

Subrogation is allowed only for property insurance. It cannot be used for health or life insurance coverage.

Reduced payment amount

A reduction in the payment amount is possible if the citizen voluntarily agrees to make a payment for subrogation. There are cases when the insurer met halfway and reduced the requirements by almost half. However, experts advise agreeing to a voluntary settlement if the organization’s rights to subrogation under compulsory motor liability insurance from the culprit of the accident are legal and the requirements are legitimate.

If in doubt, it is recommended to consult a lawyer. It will allow you to assess the chance of challenging the insurer’s claims or reducing the amount of payments. Additionally, it is recommended to carry out an independent examination. This will allow you to determine whether the amount was overestimated. If the insurer's claims exceed the permissible value, they can be challenged in court. The claim for a reduction in the amount of payments is supplemented with documents proving the applicant’s case.

How is subrogation different from recourse?

The at-fault driver may not know the difference between subrogation and subrogation. In each case, the victim receives compensation. However, after a certain time, the insurer sends a notice demanding payment of a certain amount.

The difference between the concepts lies in the source of the requirements. Subrogation can be claimed by the victim's insurance organization, since it was the one who received such a right from the victim. The limitation period for a claim does not depend on the transfer of rights. This means that by subrogation it starts from the same date as in the usual manner - from the date of the traffic accident.

Recourse claims can be made by the insurance organization of the at-fault driver, since he has received the opportunity to make a claim against the insured (the Law “On Compulsory Motor Liability Insurance” in Article 12 regulates cases when regressive claims arise). At the same time, the Civil Code in Article 200, paragraph 3, determines that for regressive claims, the limitation period begins to count from the date of compensation for damage to the victim.

Contesting guilt

Subrogation after payments under compulsory motor liability insurance applies only to the person found guilty of the incident. The fact must be proven. A citizen can try to challenge it. When performing an action, it is worth referring to the presence of factors that did not depend on the citizen and influenced him at the time of the accident. You will need to provide evidence. It can be:

• documented testimony of eyewitnesses;
• photo and video materials;
• other documented data.

In what cases is subrogation under compulsory motor liability insurance not possible?

Under a compulsory motor third party liability insurance contract, subrogation is not possible, since this claim of the victim’s insurance is covered by the insurer of the at-fault driver under the MTPL policy.

The legislation of the Russian Federation establishes that only the victim has the right to demand from the at-fault driver the amount that is insufficient to completely restore the vehicle. The transfer of rights in this case is not provided, therefore the term “subrogation” is not applicable. However, the at-fault driver will have to pay for damages caused that are not covered by the motor vehicle insurance company if such a demand is received from the victim.

Subrogation also cannot be used in the absence of proof of the guilt of a certain person.

Subrogation with insurance

Sometimes people, having heard about subrogation payments and that they relate to insurance, wonder if it is possible to reimburse the subrogation from the insurance company?

Subrogation is the transfer of rights from the policyholder to the insurer. That is, only the insurer can receive it. And subrogation funds are collected only by the insurance company and only from the culprit. This follows from the very definition of subrogation.

That is, the phrase “receive subrogation from the insurance company” is meaningless. If you read the article carefully, you already realized this a long time ago.

When does subrogation appear under compulsory motor liability insurance?

One of the situations in which subrogation appears is when the insurer paid the victim more than the compulsory motor liability insurance covers. In what situation is this possible? Under what policy? Under a comprehensive automobile insurance agreement, except for motor vehicle insurance.

When paying under CASCO, a situation arises in which the insurance organization requires the culprit to compensate for the costs that were covered for repair work to restore the client’s car. In such a situation, the presence or absence of a compulsory motor liability insurance policy does not play a role.

Let's look at an example. The driver injured in the accident has a valid CASCO policy for the car. Therefore, he does not ask for compensation under the auto insurance policy. The repair work is being arranged by his insurance company. After this, the car owner is happy that the money for CASCO was not wasted.

In this situation, subrogation occurs. The insurance company may require the at-fault driver to reimburse the costs spent on restoring the client’s car.

What not to pay

The maximum insurance payment under compulsory motor liability insurance is 400 thousand rubles (according to the European protocol - 100 thousand rubles). The costs of restoration are compensated by the insurance organization of the at-fault driver, since it was with them that he entered into an agreement and made payments. The insurance company of the at-fault driver has the right to demand an amount that exceeds the maximum payment through subrogation from the initiator of the accident.

The insurer is not authorized to demand that the perpetrator pay more than he compensated the victim. Additional costs cannot be charged. For example, if the insurer is late in payment and pays a penalty for this. The at-fault driver is not obliged to compensate for its amount. He must pay only the damage that was caused to the victim.

What it is

The word “subrogation” comes from Latin and literally means substitution. Its definition is contained in Article 965 of the Civil Code.

According to it, subrogation is when the insurer, who has paid compensation to its insured, transfers the right to demand compensation for losses from the tortfeasor.

What does it look like in life? An insured event has occurred. The insurance company compensated for the damage caused to the insured property of its client. And now she can demand that the person who caused this damage, that is, the culprit, pay her the amount that he spent compensating the damage to the insured.

Because after the insurance company fulfilled its obligations to the insurer, subrogation occurred, that is, the culprit no longer owes the victim anything, but became a debtor to the insurance company.

Subrogation can only be used in property insurance. In life and health insurance, liability insurance, etc., the concept of subrogation does not exist.

How is the wear of parts of a damaged car determined?

Wear and tear of parts is one of the most controversial issues when determining the amount of compensation. A CASCO policy usually allows for complete repairs, but when calculating damage under MTPL, wear and tear of components and parts is used. Some insurers, after restoring the insured’s car, demanded that the culprit of the accident reimburse the entire amount without taking into account wear and tear.

In the past, many courts have found such actions to be unlawful. The at-fault driver does not have to compensate for the cost of repairing the vehicle from new condition. It is logical that he should compensate only for the harm caused. Therefore, the car must be restored to the condition it was in before the accident. Judicial practice of subrogation in insurance under compulsory motor liability insurance has shown that court decisions were very different.

The perpetrator is obliged to make full compensation

In the spring of 2021, the Constitutional Court of the Russian Federation issued Resolution No. 6-P. It recognized all the provisions of the Civil Code, which provide the victim with the opportunity to receive payment of all the money that was spent on repair work, and not just the amount that is calculated according to the rules of the motor vehicle. The judge, when considering a certain case, is authorized to reduce the amount of compensation if he considers it correct.

Under subrogation, the insurance company receives the right from the injured driver to demand compensation for damage, therefore it is authorized to recover from the culprit the amount that was spent on restoring the damaged car (within the amount insufficient under the compulsory motor liability insurance policy, determined according to the Unified Methodology).

Step-by-step instructions for actions as a result of subrogation from the insurance company to the culprit of the accident

The insurer will exercise the right of subrogation to the party responsible for the accident in any case. The process is carried out according to the following scheme:

1. The degree of guilt of each participant in the accident is determined.
2. A person recognized as a victim prepares documents and applies to the insurer for payment.
3. The amount of compensation is being determined. To do this, an assessment of the damage received is performed.
4. If the amount of damage is greater than the maximum allowable amount of compensation under compulsory motor liability insurance, the list of further actions depends on what policy the victim has. If he also purchased a car license, the insurer will only provide the required 400,000 rubles. The remaining amount can be claimed from the person responsible for the incident. The action is carried out by personal agreement or through the court. If a person has purchased CASCO insurance, the insurer will provide compensation within the amount established by the contract. Usually it exceeds the limit for compulsory motor liability insurance. The difference between the compensation provided to the victim and the amount paid by the company of the culprit is recovered by subrogation from the citizen himself.
5. Having received a claim for payment, the person at fault must ensure that the insurer has the right to subrogation. To do this, all documents are studied in detail, the features of what happened are analyzed and the adequacy of the requirements put forward is assessed. If they are unlawful, it is worth preparing an evidence base confirming the citizen’s rightness. The decision will be made in court.

If the accident is registered according to the European Protocol

If a traffic incident is registered under the European Protocol and the car is restored under CASCO, then the difference between the cost of restoration work and 100 thousand rubles is demanded from the guilty driver, since this is the maximum payment in such conditions.

To avoid this, it is better to take a receipt from the victim that if the costs exceed the maximum amount under the European Protocol, he will not demand reimbursement of costs from the at-fault driver.

Attention! It is better to ask to write a receipt even if an agreement is reached not to register a traffic incident at all. Sometimes it happened that the dishonest car owner took the agreed amount from the culprit, and then submitted documents to his insurer. The latter later sent a demand to the culprit to compensate for the damage.

What the law says

We said earlier that this concept in our time has a legislative basis, and this indicates the legality of insurers in certain cases to demand a refund from their clients after compensation for an insured event.

This term is considered in Article 965 of the Civil Code of the Russian Federation, and is also specified in Article 281 of the KTM.

The Civil Code stipulates that the insurance company, which has an agreement with the motorist, undertakes to pay damages when the situation specified in the policy occurs.

The amount of such payment must not only comply with the regulated norm (Article 947 of the Civil Code), but also cover the damage to the victim as a result of the incident.

Under what conditions does subrogation appear?

To make subrogation possible under compulsory motor liability insurance, the following conditions must be met:

• the insurance organization fully compensated the damage to the victim;
• the victim has CASCO insurance;
• the cost of restoring the victim’s car exceeds the maximum amount for the car insurance policy.

From each person at fault in the accident (pedestrian, driver without compulsory motor insurance or cyclist), the insurer can recover damages through subrogation.

Attention! The victim is not subject to subrogation requirements, even if he is at fault. For example, he lost control and drove into a pole. If the car is registered to a legal entity, then it is the organization that is obliged to make the subrogation payment, and not the driver who was driving the car.

Nuances

To avoid facing subrogation, the expert advises following a number of rules. So, it is better to conclude a voluntary CASCO liability insurance agreement. It assumes a larger limit. As a result, demands are redirected to citizens extremely rarely. If you find yourself in an accident, you need to find out the type of insurance policy the victim has. If he has CASCO insurance, it is worth maintaining constant contact. You will need to write to the insurer a statement of your desire to be present during the examination. It is worth hiring an independent appraiser for an inspection. There is no need to admit guilt if in fact there is no guilt.

When drawing up a European protocol, it is worth taking a receipt confirming that the victim will not make claims in excess of 100,000 rubles. The statute of limitations must be taken into account. If it has expired, you must inform the court about this.

Combating MTPL subrogation

Avoiding subrogation is not difficult. To do this, it is necessary that the damage be covered more than that provided for in the motor vehicle insurance policy. There is a DSAGO policy that covers compensation up to 3,000,000 rubles (depending on the conditions of registration). Moreover, the difference in the cost of such a contract is quite acceptable for the average Russian motorist.

DSAGO will be an excellent addition to OSAGO. Thanks to it, the insured amount for which restoration work can be carried out will be significantly increased.

When the insurance company makes claims against the culprit

It should be understood that it is not always possible to demand subrogation under a motor vehicle policy from the culprit of a traffic accident.

This is possible in the following cases:

1. There are documentary conclusions from traffic police inspectors that the guilt of one of the motorists has been fully proven.
2. The insurer and the policyholder have a compulsory motor liability insurance agreement or a CASCO agreement valid at that time.
3. The injured party was provided with full compensation by his insurer or the company of the culprit.
   

   The cost of damage is determined only on the basis of the prescribed examinations, as a result of which a written conclusion is drawn up.

4. The statute of limitations for a claim for an accident has not passed (on average it is three years).

At the same time, an article of the Civil Code of the Russian Federation states that an amount no more than that paid to the victim under the contract is recovered from the culprit.

The right not to pay subrogation to the culprit is possible only when:

• it has been proven that he was not the cause of the accident, but then there were factors at work that did not depend on him;
• Victims of an accident do not have any claims against the guilty party. But it should be remembered that the absence of claims will cause the insurance company to refuse to pay.

Although subrogation is mostly a process for insurance companies, motorists should also know its features so as not to become a victim of unlawful actions of insurers who want to compensate for their losses at any cost, neglecting the rights of their clients.

How to prevent the possibility of a subrogation claim

The appearance of subrogation in relation to the driver is possible if the following 2 conditions are met:

• The driver is at fault in the incident;
• The injured driver has a valid CASCO insurance.

If both requirements are satisfied, then steps must be taken to reduce the likelihood of subrogation claims. Don't rely on chance. To achieve this goal you need to do the following:

1. If guilt is not obvious, it should not be admitted;
2. It is important to always stay in touch with the victim of an accident, find out information about assessing the amount of damage caused and its compensation;
3. It is necessary to notify the insurer of your desire to be present during the technical examination, it is good to attend it with your expert;
4. If you disagree with the results of the damage inspection, they should be contested;
5. It is important to ask for a copy of the results and have another expert examine you if you have doubts about the objectivity of the work performed.

As a rule, a subrogation claim is filed after 24-30 months, when the car has long been restored, and sometimes sold. It is extremely difficult to prove something in such a situation. Therefore, it is better to keep documentation of the accident for 3 years.

Questions and answers

People often turn to consultants to find support in disputes with an insurance company. The questions also concern cases where the case has not yet reached the court.

Each situation has its own characteristics. However, there are also features that unite most problem blocks.

Here are just a few commonly encountered problems. And it is important to initially choose the right tactics of behavior.

Tell me, should the insurance company file a claim before going to court? If so, how much time do I have to review it?

Andrey. Moscow city.

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 17 years of experience.

Ask a question

Within the framework of CASCO relations, pre-trial procedure is not mandatory. This also applies to subrogation claims. Therefore, you need to prepare immediately for a lawsuit. The lawyer will tell you about the tactics of behavior during the consultation.

Please tell me if there is any time during which the insurance company can sue me. I had an accident back in 2015.

Denis. Balashikha.

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 17 years of experience.

Ask a question

According to the law, the limitation period is three years. There are no exceptions to subrogation claims. However, it is important to understand where the deadlines begin. Judicial practice on CASCO disputes states that this is the moment of an accident. Therefore, if it happened 4 years ago, then the subrogation claim may be rejected due to the expiration of the statute of limitations. This must be stated directly in court.

Hello. I received an absentee decision to recover 60 thousand rubles from me in favor of the insurance company by way of subrogation. However, I did not receive any subpoenas. Tell me what to do next.

Artem. Moscow city.

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 17 years of experience.

Ask a question

There is only one correct way out, how to challenge subrogation under CASCO. You must apply to cancel an existing default judgment. It is filed in the same court. It is imperative to indicate that you were not notified of the meetings. Arguments directly related to the subject of the dispute are also indicated.

Yesterday they sent me a court order in the amount of 40 thousand rubles. As follows from its contents, the insurance company initiated the lawsuit. She compensated for damages for an accident in which I was the culprit. What to do?

Philip. Kolomna.

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 17 years of experience.

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First of all, several points are taken into account. The first of these is the type of insurance. If this is CASCO insurance, then we are talking exclusively about subrogation. Such disputes are subject to hearing through claims proceedings. You need to write an application to cancel the court order. You have ten days for this (the date of receipt is not taken into account).

What to do to avoid paying subrogation under MTPL

Even if the insurer has already made a subrogation claim, one of the following conditions must be met:

• The insured person has a valid DSAGO. In this case, it is necessary to demand that the insurer with whom the policy is issued compensate for the damage caused.
• Prove that less damage was caused to the car than the insurance company calculated.
• Presence of other violations on the part of the insurer.
• Managed to prove his own innocence in a traffic accident.
• The insurance company committed violations.

Each of the methods can be used at the stage of pre-trial conflict resolution or during trial.

Innocent in a traffic accident

There are special deadlines for appealing traffic violations. This can only be done if the driver is not at fault.

Subrogation cannot be used against someone who is not at fault for causing the damage.

In a number of situations, guilt can be controversial (an example is a situation with mutual guilt). In this case, it is necessary to provide evidence of the absence of direct guilt. This will allow the judge to rule that the insurer's claims are inapplicable.

Availability of a valid DSAGO

If the driver has voluntary motor third party liability insurance with the required amount of coverage, then no problems will arise. You just need to contact the insurer with whom the contract is concluded. The organization will cover the amount within the agreement.

Other amount of damage caused

The amount of damage caused is not always determined correctly. For example, the estimate may include the cost of restoration work that was required as a result of a traffic incident.

It is important to request all materials used to calculate the required compensation and study them in detail. If false information or significant errors in calculations are discovered, an objection must be submitted in writing. Also, an application should be submitted if the driver was not invited for inspection, this will allow absentee decisions to be canceled. The explanations may indicate the lack of notification of its implementation. As a result, it was not possible to object to certain injuries being found to have been caused by an accident.

If necessary, you can submit a request for a forensic examination of the car. If the vehicle has been repaired, an examination may be carried out based on the case materials. Perhaps it will confirm a significant overestimation of the cost of damage caused. If fraud is discovered, the judge will refuse to satisfy the subrogation claim.

What is subrogation under CASCO?

Subrogation under CASCO usually means circumstances that allow the insurance company to demand a certain amount of damage from the person at fault for the accident.
There are 2 options for subrogation:

1. If the amount of compensation is less than 400,000 rubles, then the claim will be sent to the insurance company under the compulsory motor liability insurance of the person responsible for the accident.
2. If the amount of compensation is more than 400,000 rubles, then the claim goes to the culprit himself.

How does CASCO collect money from the person at fault for an accident? This is done as follows:

1. The culprit of the accident will not be subject to claims from the owner of the CASCO policy. The victim will receive the necessary payments from the insurance company with which he entered into an agreement.
2. After covering the damage caused to the client, the insurance company has the right to subrogation. This allows the insurer to recover money from the person at fault for the accident.
3. If the person at fault for the accident has a compulsory motor liability insurance policy, then the payments will be made by the insurance company of the person responsible for the accident.

The longer the period of operation of the car, the cheaper it is. This means that at the time of the accident the car will be worth less than at the time of its purchase. However, this does not negate the fact that exclusively new parts will be used to restore the vehicle.

The insurer has the right to subrogation only if a CASCO policy is issued for the damaged car. If we talk about compulsory motor liability insurance, the insurance company undertakes to cover all repair costs at its own expense.

However, these are not all the conditions that must be met during subrogation:

1. The insurer paid the client the necessary amount of money to restore the car, and also fulfilled the remaining obligations stipulated by the agreement concluded between the parties.
2. The person at fault for the accident does not have compulsory motor liability insurance or the amount of damage exceeds the maximum allowable amount of payments.

The court will consider a case on subrogation only if no more than three years have passed since the occurrence of the insured event and the filing of the claim. If the insurer violated the established deadlines, then the claim sent to the culprit of the accident will be considered invalid.

The limitation period is established by law. This concept usually means the period during which a citizen can file a claim in court.

The Civil Code of the Russian Federation spells out all the points regarding subrogation. If we refer to Article No. 965 of the Civil Code of the Russian Federation, then subrogation can be applied only if there is a property insurance agreement.

If there are no grounds for subrogation or the implementation of this procedure contradicts the norms of the legislation of the Russian Federation, then such a mechanism cannot be applied. Otherwise, the contract will be officially declared void. The car owner will only have to defend his interests in court by filing a statement of claim.

In practice, most drivers try to inflate the amount of damage that was caused to the car as a result of an accident. Thus, they deceive not only their insurer, but also the person responsible for the accident.

It is possible to avoid subrogation, but to do this you must adhere to the following recommendations:

1. While driving, you must not violate traffic rules.
2. The contract with the insurer is concluded for the maximum possible amount.
3. When a subrogation claim is received, it is best not to delay. It is necessary to contact a specialist and get advice.
4. If you are at fault for an accident, you should not avoid investigative procedures. This especially applies to assessing the material damage caused.

To begin with, it’s worth saying right away that without the help of a professional it will be extremely difficult to resolve the issue on your own. This is due to the fact that a person who does not have knowledge in matters of this kind will not be able to fully understand the claim received, as well as determine whether the claims of the insurance company are legal.

To protect yourself from subrogation in advance, you need to take out a compulsory motor liability insurance policy. This will make it possible to pay damages not to the culprit of the accident, but to his insurer.

The OSAGO policy is not cheap, but its owner does not have to worry about the fact that he will need to pay subrogation in full.

There is a case in which the claim for subrogation from the insurer can be considered unfounded. The initiator of the accident must insist in court on an investigation that will reveal the guilt of the second participant in the accident. If this fact is confirmed, then payments will not be required.

To begin with, you should fully understand what exactly is the meaning of the concept of subrogation.

To do this, let's give an example. A driver with a CASCO policy gets into an accident. The traffic police found him not guilty of the incident. He received payments from the insurer under CASCO in full, and the amount amounted to 638,000 rubles.

After which, the insurance company turned to the OSAGO company of the culprit of the accident for recovery of losses through subrogation, since the right of claim was transferred to them, and received compensation for 400,000 rubles, that is, the maximum possible money. And they wanted to recover the remaining 238,000 rubles from the person responsible for the accident.

Here is an approximate scheme of actions for collecting damages through the procedure of subrogation under CASCO from the culprit of an accident.

How to counteract all this?

To do this, you need to consider a number of questions, namely:

1. Rules for filing claims based on subrogation.
2. What is the maximum allowable amount?
3. The time period during which subrogation can be applied.
4. What measures can be taken to counteract unscrupulous companies?

Selivanov Vecheslav Andreevich
Lawyer, specialization civil law.

Ask a question

In any case, when you receive a claim from an insurance company or a subpoena from the court, I recommend contacting specialists. The common man is unlikely to be familiar with the intricacies of defense in court. At the same time, an analysis by a lawyer of the prospects of the case will not be superfluous.

Recently, all disputes with insurance companies must be resolved according to the rules provided by law. The essence of these rules is pre-trial proceedings.

That is, before going to court, insurance companies are required to present their demands in a claim procedure. Namely, send the claim in writing to the citizen from whom it is intended to recover damages through subrogation.

We suggest you read: Where can you register your car?

In addition, this document must set out an offer to compensate for damages on a voluntary basis. And if the culprit of the car collision refuses to make voluntary payments, then the insurance company has grounds to go to court.

We would not recommend agreeing to voluntariness and parting with your money just like that. To understand how to act, you need to contact professional lawyers who will help you understand and assess the chances of the insurers and the culprit of the accident.

But you definitely need to go to court. Why? We will talk about this below. Read carefully.

If a traffic accident occurs, most of the damage is compensated by insurance companies. The mechanism depends on the type of insurance - OSAGO or CASCO.

After providing compensation in money or payment for repairs, the costs are recovered from the culprit of the accident. Within the framework of compulsory motor liability insurance, this is called recourse in legal language.

In the case of CASCO, another term with a similar essence is used - subrogation. However, it applies only to the extent of damage not covered by the MTPL policy of the person responsible for the road accident.

PJSC IC Rosgosstrakh applied to the court to the defendant Dmitriev (surname changed) with a request to recover 109,000 rubles by way of subrogation. The requirements are motivated by the fact that in 2013 the Defendant committed an accident, colliding with a Nissan X-Trail, which was insured under a CASCO policy.

The expert opinion showed that the replacement cost of the repair was 229,000 rubles. Part of these funds in the amount of 120,000 rubles was repaid at the expense of compulsory motor liability insurance. Therefore, the amount of the claim was 109 thousand.

Dmitriev's representative did not agree with the claim. He motivated his arguments by the fact that the principal was not present when the damage was determined. In addition, according to the defendant, the statute of limitations for going to court was missed. The emphasis is also placed on the lack of pre-trial settlement of the dispute.

The Apsheronsky District Court of the Krasnodar Territory, by its decision dated May 17, 2017, case No. 2-453/2017, satisfied the insurer’s claim. Separately, the judge noted that the statute of limitations had been met. As for the claim, its preliminary filing in this case is not provided for by law.

The essence of the matter is this. The district court, which agreed with the appeal, recovered 544 thousand rubles from citizen Fedorova in favor of PJSC IC Rosgosstrakh by way of subrogation. This amount was paid to her husband as compensation for damage to the car caused by an accident.

At the time of the accident, Fedorova was driving and her guilt in the incident was proven. However, according to the terms of the CASCO agreement, only the husband had the right to drive the car.

Therefore, it was to her that the Investigative Committee made demands. The Supreme Court of the Russian Federation, by its ruling dated April 23, 2018 in case No. 49-KG17-36, upheld the previous decisions. It is separately noted that the presence of a marital relationship does not affect subrogation.

In July 2015, the Investigative Committee filed a claim against the defendant to recover 96 thousand rubles through subrogation. The requirements are motivated by the fact that in November 2011, an accident occurred with the participation of a citizen, and the insurer paid for restoration repairs.

The second party to the dispute referred to the expiration of the statute of limitations. The first and appellate instances did not take this argument into account. They considered that the deadlines began to count from the moment the compensation was provided.

What to do when receiving a subrogation claim

Under no circumstances should the requirement be ignored. If the insurance company sees that the person at fault for the accident did not react in any way, it will file a lawsuit. In case of failure to appear at the meeting, the plaintiff’s demands will most likely be satisfied even if there are serious violations. The law sets a 3-year period for filing a claim after an accident. The consideration of the case itself may take place later.

It is best to settle the matter before going to court. In any case, such attempts will be welcomed by the judge. Such actions will be viewed in a positive light for the defendant. Therefore, it is better to try to settle the matter. Get acquainted with the requirements of the insurance organization, determine whether they are legal. It would be ideal if the case has expired - more than 3 years have passed since compensation for the accident.

If the deadlines are met, the following steps must be completed.

Verification of documents on subrogation under compulsory motor liability insurance

When filing a claim for subrogation, the insurer is obliged to confirm it with the following documentation:

• CASCO agreement with the victim, which was in force at the time of the traffic accident;
• evidence of guilt - a decision on violation of traffic rules, a decision to initiate a criminal case, a court decision, etc.;
• confirmation of payment for compensation of losses - cash or money transfer to a bank account;
• documents from the road inspection that confirm the traffic accident;
• confirmation of the amount of damage - the conclusion of an expert examination of the damage with a detailed description and images, determination of the cost of restoration or an estimate from a car service center, an act of acceptance and delivery of the results of restoration work.

If any of the documents listed above are missing, you must send a request to provide the necessary documentation in response to the claim. Without this, the motorist has every right not to make the payment.

Subrogation in case of an accident: legal basis

In order to obtain the right to demand compensation from the culprit of the accident for expenses incurred to restore the car, the insurer of the injured party must confirm the fact that in the situation resulting from the accident there are signs of subrogation.

To do this, he will need to attach certain documents to the pre-trial claim or statement of claim (depending on the order in which the dispute is resolved):

1. Confirming the fact that the insurer has spent funds in the specified amount, as well as the validity of their expenditure:

• checks, receipts, payment orders, service agreements, etc.;
• photo and video materials taken at the scene of the accident;
• conclusion of an expert appraiser establishing the extent of damage and the cost of their restoration.

1. Confirming the guilt of the person to whom the claim for subrogation is made:

• certificate of accident;
• resolution in a case of an administrative offense;
• court decision.

1. Confirming the insurer's right to subrogation:

• a copy of the policyholder's statement about the occurrence of an insured event;
• a copy of the PTS and CASCO policy of the injured party.

If the insurer does not provide such documents, the person responsible for the accident may request them independently, stating his request in a written application. Failure to confirm the legitimacy of the claims on the part of the insurer is grounds for refusal of subrogation.

If the person responsible for the accident does not agree with the amount of the claims, he can contact an independent expert who, based on the information provided, will make his opinion on the real cost of car repairs.

How to check the legality of subrogation claims under MTPL

It is possible that insurance companies resort to tricks to make money on the at-fault driver. Therefore, all available documents should be studied with special attention. It is best to enlist the help of a professional, this will avoid mistakes that allow you not to make a payment.

Sometimes false information is provided regarding the amount of damage, since it will not be difficult for the insurer to obtain those indicators that are beneficial to it. First of all, you should check the following:

• Have all the spare parts on the list been replaced?
• Is the indicated cost of spare parts and restoration work realistic;
• Whether the indicated damage corresponds to a specific road accident;
• Is each part marked only once (sometimes parts are listed several times).

It is best to contact a professional who will check all the calculations made. If there is erroneous information that is strikingly different from the real one, it must be written down on paper. The document can serve as the basis for constructive communication with the insurer, and will also be useful in court if the matter comes to trial.

How to negotiate subrogation under MTPL

If, after an inspection, it turns out that the insurance company is making legitimate demands, and reimbursement of its expenses cannot be avoided, it is best to come to an agreement. Insurers themselves do not like to participate in litigation, so they are usually willing to make concessions, reducing the amount of compensation or allowing the money to be transferred in installments.

Trial

If it was not possible to resolve the problem peacefully, then the insurance company has every right to file a lawsuit. The company does not always try to solve the problem peacefully, but simply goes to court. The defendant may find out about this when he receives a summons to the hearing.

Proof

At this stage, the same steps are repeated as when filing a claim with the insurer, checking the legality of the claims. The only difference is that disagreement is expressed not to the insurance organization, but to the judge.

If there are doubts regarding the assessment, a request for a forensic examination can be submitted. It is usually performed using written information and photographs. When conducting technical examinations before the start of the trial, their results must be attached.

Another important argument is the lack of invitations to conduct an expert examination of the damage to the victim’s vehicle. In this case, the insurer's expert's conclusion may be declared invalid.

It is important to pay attention to documentation of guilt. If the conclusions are ambiguous, you can submit a request for another examination.

Judgment

If violations are detected in the actions of the insurance organization, the court will in any case determine this and issue a refusal result. Even if the court of first instance decides in favor of the insurer, do not despair.

If there are grounds for a dispute, it makes sense to file an appeal. Higher courts often make decisions in favor of the car owner.

They are asking you for subrogation. What to do?

First of all, do not ignore subpoenas. Without you, the court may make a decision in absentia, which is difficult to reverse later. In court, you can declare the expiration of the 3-year limitation period - clause 2 of Art. 966 of the Civil Code of the Russian Federation.

Expert opinion

German Ivanovich Amvrosov

More than 25 years of legal practice in law enforcement agencies and commercial structures.

The limitation period begins from the day when the person learned or should have learned about the violation of his right - clause 1 of Art. 200 Civil Code of the Russian Federation. That. in relation to the insurer's claim for subrogation, the start of the limitation period will not be the moment the accident occurred, but the date of payment of the insurance compensation.

Documentation

The insurance company must confirm its claim against the culprit in court with the following documents:

• confirmation of the existence of a CASCO agreement concluded with the victim, which was in force at the time of the accident;
• documents from the traffic police confirming the fact of the accident;
• confirmation of guilt (resolution on an administrative offense, initiation of a criminal case, court decision, etc.);
• confirmation of the cost of damage - the conclusion of an expert examination of damage with a full description and images, calculation of the cost of restoration, or an estimate from a service station, an acceptance certificate for the results of repairs;
• confirmation of actual payment of damage, that is, transfer of money to the client’s or car service account (cash withdrawal).

Checking the legality of claims

It is possible that the insurer may use tricks to profit from the culprit. Therefore, carefully study the documents. It is advisable to involve a professional in this matter so as not to miss possible shortcomings made by the insurance company, which will allow you not to pay it.

Most often, there is incorrect information regarding the amount of damage, since it is easiest for the insurance company to make the “necessary” indicators for this item.

First of all you need to check:

1. correspondence of the indicated damage to a specific accident;
2. is there anything superfluous in the list of replaced parts;
3. Is one detail written down several times (this happens);
4. Is the indicated cost of parts and labor realistic?

An expert will help you accurately check all calculations. If there are erroneous data that seriously differ from reality, they should be recorded on paper. They will not only be a reason for a constructive conversation with the insurance company, but also a significant help in court, if it takes place.

Negotiated solution

If you are convinced that all the insurer’s claims against you are legal and payments cannot be avoided, try to negotiate with him. You can reach an agreement before the court makes a decision by concluding a settlement agreement with the insurance company. The insurance company is sometimes interested in receiving compensation immediately, and not stretching it out over several years.

Court

Insurers don’t bother with pre-trial conversations, and you can find out what you owe them by receiving a claim by mail.

Proof

If in doubt about the valuation, ask for a forensic audit. But remember that the court will refuse to conduct an examination without justification and if you do not put money to pay for it on the court’s deposit.

Another very weighty argument is if you were not invited to conduct an expert assessment of the damage to the victim’s car. If this fact exists, demand that the examination be excluded from the evidence.

Pay attention to documentation of guilt. If possible, dispute your guilt in the accident.

Remember that the court decision can be appealed to higher courts.

Judicial practice in considering subrogation under compulsory motor liability insurance

Often, motorists disagree with the fact that they are being asked for compensation under subrogation or do not know how to resolve the dispute so as not to bring the matter to trial. In some cases, insurance companies will file a lawsuit without first notifying the at-fault motorist.

Judicial practice in matters of subrogation under compulsory motor liability insurance is very wide. A wide variety of situations are considered. Let's get acquainted with those that are found more often than others.

The driver has a valid DSAGO policy

It was rare, but it happened that even when a DSAGO agreement was concluded, a lawsuit for payment of subrogation was still filed. The court refused to satisfy it, since the damage should be compensated under the current additional insurance agreement.

Fraud by insurance companies regarding subrogation under MTPL

A significant share of litigation due to subrogation is due to the exchange actions of the insurer. If there is a DSAGO, all problems are resolved pre-trial and there are no legal reasons not to pay, the court will never invent them.

The legal processes are identical in most cases. The insurer's experts conduct an inspection with an overestimation of the cost of parts several times over, declare the need to replace spare parts that can successfully cope with their loads, and similar situations.

Another situation is that two and a half years after the accident, a claim is sent to the at-fault driver, who no longer remembers the incident on the road. It states the requirement to pay the required amount. If refused, the insurer sends the case to court. In such situations, defendants often turned to professional lawyers.

During forensic examinations, an overestimation is often established; the results of technical examinations are declared invalid, since the defendant did not receive information about their conduct. The court does not satisfy the insurer's claim.

With the increase in compensation amounts under compulsory motor liability insurance, the use of such recovery schemes from the at-fault driver occurs much less frequently.

Court decisions on payment

If the at-fault driver fails to prove the validity of the cancellation of subrogation, the court will make a decision to collect the required amount.

Subrogation from an insurance company under compulsory motor liability insurance

Some drivers, when they learn about subrogation payments, try to get it reimbursed by the insurer.

Subrogation is the transfer of rights from the insured to an insurance organization. In other words, only the insurer can receive it. Recovery under subrogation can be made exclusively by the insurer and exclusively from the at-fault driver. This is indicated by the very definition of this term. Therefore, receiving subrogation from the insurer is no longer subrogation.

Maximum requirement size

Now we want to draw attention to the amount that insurers generally have the right to demand. Taking advantage of such a circumstance as the legal illiteracy of the population, unscrupulous organizations demand almost stars from the sky. And this is outrageous!

As mentioned above, in matters relating to subrogation, the principle of transfer of the right of claim applies. Consequently, the insurance company has this right as a result of covering the obligations of the culprit to compensate for damage to the victim.

In the example indicated at the beginning of the article, the amount was 238,000 rubles. So, it is permissible to demand less than this amount, but no more. This circumstance needs to be known and taken into account when situations related to subrogation arise.

Insurance agencies often inflate allowable amounts. This happens because citizens do not protest in court, and since there are no objections, the court does not consider this issue.

In order to avoid getting into such an absurd situation, you should seek the help of auto lawyers who will protect your interests in court and file the necessary petitions and protests.

Real cases from judicial practice on subrogation under the current compulsory motor liability insurance

Today, road accidents have become commonplace. Insurance organizations are constantly faced with the need to compensate for damage. Their requests are not always lawful, everyone knows this, including judges. Let's look at examples of real litigation.

Situation 1. The car of a victim in an accident received damage worth 573 thousand rubles

The guilty driver did not deny his own guilt; he was ready to compensate for the damage caused. The costs of restoration were fully covered by his insurer, since the parties only had compulsory motor liability insurance policies.

However, the law “On Compulsory Motor Liability Insurance” regulates the maximum payment in the amount of 400 thousand rubles. Therefore, the court ordered the driver at fault in the incident to compensate the difference of 173 thousand rubles.

Situation 2. After an accident, vehicles need to be sent for restoration, the amount of damage is 300 thousand rubles

The insurance premium to the victim was paid from the funds of the insurance organization of the person responsible for the incident.

During the trial, it was established that the driver was not the initiator of the accident. The incident occurred under the influence of other factors, so the insurer could not use the right of subrogation.

As a result, the restoration of the victim’s car was carried out at the expense of the auto insurance policy.

Situation 3. After the accident, the victim was paid all the money required to restore the vehicle

The insurer covered the costs; over time, he demanded subrogation from the client in the amount of 88 thousand rubles. The court found that the traffic accident certificate did not include all the items. The judge noted and remembered this, so the decision was made in favor of the motorist.

An additional examination of the damaged vehicle was carried out, the estimated amount turned out to be 35 thousand more than indicated in the document, therefore the insurance company of the at-fault motorist is obliged to cover the costs of the injured driver.

How to challenge an insurance company's subrogation

If the person at fault for the accident received a claim, then there is no need to panic, as this is not yet a statement of claim. The insurer of the injured person hopes that the recipient of the chain letter will admit guilt and will not take the case to court.

Procedure for receiving a claim:

1. There is no need to shy away; it is enough to talk with the insurer by personally visiting the organization’s office.
2. Next, you need to familiarize yourself with the inspection report and the certificate of the accident. This will allow you to assess whether the information provided in the documents is correct.
3. If the person at fault for the accident thinks that the insurance company is significantly overestimating the actual cost of the damage, then you can request various certificates that justify the amount of recovery.

1. The further course of action depends on the insurer. If the insurance company has not overestimated the amount, then there is no need to go to court. It is not always possible for the person responsible for an accident to pay off all the damage at once, so it is possible to arrange an installment plan.
2. If a statement of claim is filed, then it is necessary to wait for a court ruling on the case.

Having received a pre-trial claim from an insurance company or a subpoena for a hearing on the collection of funds by way of subrogation, you should not ignore the actions of the initiator of the proceedings. The insurer, which has not received a response from the person at fault for the accident, will go to court, which, in turn, in the absence of objections and arguments from the defendant, will most likely take the side of the plaintiff. That is why it is not only possible, but also necessary to protect your rights - and this can be done not only in court, but also in pre-trial proceedings.

So, to challenge subrogation, you can:

1. Use the help of an independent appraiser who will determine the exact cost of restoring a damaged car. Unscrupulous insurance companies may include non-existent parts or labor in estimates, use replica parts instead of original parts from the manufacturer, inflate the cost of used components or auto repair services, and increase the amount of allegedly incurred costs in other dishonest ways. After an independent examination, it may turn out that the actual repair costs much less than what is stated in the insurer’s requirement. As a result, the amount that is due to the insurance company for subrogation may be significantly reduced or even covered by the insurance payment under the MTPL policy.
2. Specify the period that has passed since the date of the accident. If more than 3 years have passed since the accident, the defendant may refuse to fulfill all claims made against him. Moreover, refusal in this case is possible regardless of whether he was guilty of the accident or not.

We invite you to familiarize yourself with: Reversal of the execution of a court decision

So, subrogation when the insurance company compensates for damage caused to a car as a result of an accident occurs only if the injured party’s vehicle had CASCO insurance. An insurer that has spent its own funds to repair a car has the right to recover it from the person responsible for the accident. To get rid of the obligation to pay compensation in favor of the insurance company, the initiator of an accident can engage an expert to conduct an independent assessment of the cost of damage, analyze the completeness of the package of documents submitted by the insurer, take advantage of the payment under the compulsory motor liability insurance policy, etc.

Recommendations that will help you when requesting payment of subrogation under the current compulsory motor liability insurance policy

• If possible, it is worth adding to the DSAGO vehicle license, this will provide more extensive protection;
• it is better to immediately find out whether the victim has CASCO insurance;
• if the injured driver has a valid CASCO insurance, you need to keep in touch with him, write an application to his insurance with a request to attend an examination of the vehicle;
• in any case, it is necessary to attend a technical examination of the damage caused; if possible, you should take with you a qualified appraiser or simply someone who is well versed in this;
• if the driver is not the culprit of the accident, then in no case should you take the blame;
• in case of drawing up a Europrotocol, it is necessary to ask the victim to write a receipt stating that the amount of his claim will not exceed 100 thousand rubles;
• Make sure that when making a claim, 3 years have not passed since the accident.

So, subrogation presupposes the right of the parties to the insurance agreement to recover compensation for damage caused from the at-fault incident. It can be used by the insurance organization of the culprit and the victim. Knowing the specifics of subrogation, its legislative basis and judicial practice, you can soberly assess your chances of success. Try to understand the essence of the matter well, and then insurers will not be able to outsmart you.

Statute of limitations

The duration of the general limitation period is reflected in Article 196 of the Civil Code of the Russian Federation. It is 3 years. However, the law provides for the possibility of establishing special periods. For claims brought under property insurance, the period is reduced to 2 years. This rule is enshrined in Article 966 of the Civil Code of the Russian Federation. Subrogation is compensation for harm. It is not one of the issues related to property insurance. Therefore, the duration of the limitation period will be 3, not 2 years.

Actions to take when notified

There are certain rules regarding the procedure for filing claims for the return of insurance payments. Claims are made against the guilty party. But until this moment, it is important that everything is recorded at the scene of the incident, all documents and objects, audio and video recordings relating to confirmation of the guilt of the other party are received from the victim. They are used in court to prove complete guilt.

The injured party may waive claims for damages through subrogation. In this case, the insurance company does not make payments to anyone, and if this has already been done, then they are already required from the victim who received the funds.

Features of application

The party injured in an accident has the right to receive compensation for the damage caused to it. Whether subrogation will be applied to the guilty person or not depends on the following factors:

• Depending on the type of insurance contract (MTPL or CASCO).
• Depending on the number of ICs that are involved in this case (the perpetrator and the victim may have one or different ICs).
• From the amount of compensation payment.

If the victim has a CASCO policy, then compensation for damage caused by the culprit can be paid by the insurance company under this insurance policy. In the event that the victim does not have a CASCO policy, then the amount of damage is paid either by the insurance company of the perpetrator or the victim under the MTPL policy (we discussed the question of which insurance company to apply for compensation under the MTPL policy, your own or the insurance company of the person responsible for the accident, here) .

The victim does not care which organization will pay for the damage caused to him. But for the insurance company, paying compensation for damage is always a loss. That is why, in the case when the insurance company pays for the damage caused to the victim in an accident under a CASCO policy, the insurance company has the right to appeal to the insurance company of the culprit to compensate for the expenses incurred by the insurance victim.

The culprit’s insurance company is obliged to compensate for the “losses” incurred by the insurance victim , and then has the right to contact its client so that he, in turn, compensates for the damage to the insurance company with which he has an insurance contract.

According to compulsory motor liability insurance, the maximum possible amount of compensation for damage caused to the victim’s property is 400 thousand rubles. The insurance organization of the perpetrator can resort to subrogation only in the case when the actual amount of compensation payment is higher than the established limit. In the event that compensation payment for losses caused by the culprit of the accident is carried out under the motor vehicle insurance policy, then the injured party in this case can be considered the insurance company of the culprit.

In this case, subrogation claims can be brought against the culprit, but only if the amount is precisely determined. The insurance company sends a written claim to the address specified in the insurance contract. Subrogation contains the following mandatory components:

1. Justification and amount of compensation required for subrogation.
2. The period within which payments must be made.

IMPORTANT! If the culprit ignores the requirements and delays the deadlines specified in the document, the Investigative Committee has the right to transfer all documents to the court. As a result of the trial, the insurance company will be able to collect the debt, and the culprit will be punished for violating the current legislation.

Proceedings in court

In court, consideration of disputes regarding subrogation most often occurs in absentia. The culprit is not called, but only a claim is sent to him, which states that he can voluntarily return all amounts. The claim specifies the exact amount to be reimbursed. Most often, it happens that such documents are received by the culprit after even two years. By that time, it is difficult to remember not only the circumstances that occurred, but also the damage caused as a result of the incident.

After this, the culprit determines whether this amount is justified and whether its size is correct. He has the right to appeal the amount of payment. If he agrees with the amount, then it is best to contact the company, where they will agree to pay in installments. This option is suitable when the size is very large. Most often, they go to the meeting because they themselves do not want to bring the case to court.

If you understand that the amount is too high, you should also contact the insurance company. They may reduce the amount of payment, but if this does not happen, then it is best to use the services of qualified lawyers. By paying them a certain amount, you can earn much more. The main thing is to know what and how to do in relation to such companies.

On our website you can always consult a lawyer free of charge on any questions.

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