In accordance with the Civil Code, the entity that compensated for the damage incurred through the fault of another person has the opportunity to return the funds (right of recourse claim). The corresponding provision is enshrined in Article 1081 of the Code. This rule applies to all civil contracts, including liability insurance for vehicle owners. Let us further consider the particularities of the right of recourse of the insurer to the person who caused the harm.
General information
The Law "On CTP" (Federal Law No. 40) provides for the possibility of the insurer to present to the subject that caused the damage a claim for reimbursement of the sums paid to the victim. Simply put, the inflicter of damage compensates the company for all expenses associated with the insured event. Such an opportunity is enshrined in Art. 14 Federal Law "On CTP".
Judicial practice on this issue is ambiguous. The fact is that cases of illegal collection by insurers of funds paid by insurers often come to the attention of the authorities.
Injury to the life / health of the victim
In h. 1 Article. 14 of the Federal Law "On OSAGO" there are cases when the insurer can exercise the right of recourse claim. Firstly, such an opportunity arises for the company if, according to the intent of the perpetrator, damage has occurred to the life / health of the victim.
This provision is based on the rules enshrined in paragraph 2 of paragraph 963 of the Civil Code. In accordance with it, the insurer is not exempted from compensation if damage was caused to the life / health of the victim through the fault of the owner of the vehicle.
Drunk
In Art. 14 of the Federal Law "On OSAGO" it is indicated that the insurer may demand reimbursement of its costs if the damage occurred due to the fault of the owner of the vehicle while driving while intoxicated. Moreover, the provisions of the norm cover the state of not only alcoholic, but also narcotic or other (including toxicological) intoxication.
It is advisable to give an example from practice. In one of the cases, the insurer was denied compensation for the costs incurred by it, since the data on the drunken state of the guilty party are present only in the accident certificate. In order to take advantage of the provisions of the Law "On OSAGO", it is necessary to obtain an opinion on the results of a medical examination. In its absence, the fact of driving the vehicle while intoxicated is recognized as unproven.
Lack of right to drive a car
This basis for the presentation of a counterclaim is provided for in paragraph "c" of 1 part of Art. 14 Federal Law "On CTP". In simple words, this means that the person who caused the harm did not have a driver’s license, because he did not pass the necessary training and did not pass the exam.
In addition, persons who do not have the right to drive a vehicle include citizens who are driving a car in the wrong category indicated in their license, as well as those deprived of this right in connection with an offense.
It should be said that insurers often try to take advantage of the provisions of subsection "in" part 1 of Art. 14 Federal Law "On CTP" in other cases. However, as a rule, they are refused in meeting the requirements. For example, in one of the cases, the court indicated that the fact that the accident happened 30 minutes after the moment when the perpetrator, in accordance with the waybill, had to put the car in the garage, does not mean that he had no right to drive the car . The subject had a certificate, was not deprived of his rights, and was driving a vehicle of the proper category.
The insurance company sent a complaint to the cassation instance. The higher court, however, refused her satisfaction. The authorities justified their decision as follows. The person responsible for the accident was an employee of the enterprise, as evidenced by the employment contract. According to general rules, a working shift of a driver can be extended if a manufacturing need arises. The person’s right to drive a vehicle was confirmed in court. Consequently, he was driving the car legally.
Deliberately leaving the scene of an accident
When considering Art. 14 of the Federal Law "On CTP" with the comments of lawyers, it can be noted that specialists pay special attention to the difficulties in applying the provisions of paragraph "g". The fact of intentionally leaving the scene of an accident must be confirmed by appropriate documents. Consider an example.
In one of the cases, the insurer received a refusal to satisfy the requirements for cost compensation on the basis of Art. 14 Federal Law "On CTP". In the decision, the court indicated that the fact of the deliberate leaving the scene of the accident was not proved guilty, and the documents submitted by the applicant are not considered sufficient evidence.
As follows from the materials, the plaintiff, in substantiating his claims, presented a certificate of accident. It indicated that one of the drivers had disappeared from the scene of the accident. Meanwhile, the court concluded that this certificate could not be sufficient evidence. The protocol on administrative violation is not recognized by him. In the case file, the court did not find information that the hiding driver was prosecuted under the Code of Administrative Offenses. The insurer, in turn, could not reliably confirm the intent of the entity that left the scene of the accident.
Thus, in order to take advantage of the provisions of paragraph "g" of 1 part of Art. 14 of the Federal Law "On CTP", it is necessary to provide evidence of bringing a person to administrative responsibility.
Information on the causer of harm is absent in the contract
The insurance company may declare a regressive claim if the person responsible for the accident was not included in the circle of entities authorized to drive a car. This basis applies if the parties have concluded an agreement with the condition of limiting the number of citizens with the corresponding right. For a better understanding of the situation, we turn to the norms of the Federal Law No. 40. The Law establishes that the restriction on the use of a car can be established by:
- A circle of subjects.
- The period of operation of the vehicle within the insurance period.
In the latter case, we are talking about the seasonal use of the machine by citizens of 3 months or more a year and legal entities of agricultural, snow removal, watering and other special equipment for 6 months. and more.
The period of the accident is not provided in the contract
To use this basis, the agreement must have a condition that the operation will be carried out at the agreed time intervals. In the absence of such a clause, the insurer may not present a recourse claim.
Legal advice
In judicial practice, as you can see, there are many cases of unreasonable presentation of recourse claims by insurance companies. To avoid unpleasant situations, you need to follow some simple rules:
- First of all, it is necessary to find out whether the company has the right to make claims against the insured, i.e., whether the case falls under the grounds enshrined in article 14 of Federal Law No. 40.
- Do not fulfill obligations until the evidence is presented by the insurer. It is, in particular, about documents confirming the payment of compensation.
- If the sum of the presented claims causes doubts in the policyholder, it can be challenged.
- Responsibility of the subject occurs only in case of proof of guilt, except in cases specifically stipulated by law. The defendant, in turn, may challenge the claim by presenting evidence of his innocence.
- It is important to establish whether the statute of limitations has expired. If the insurance company makes claims after its completion, this should be reported to the court. The limitation period begins to flow at the time of fulfillment of the obligation under the contract, that is, after the insurance company has compensated for the damage that has occurred.
Additionally
The policyholder must comply with all the formalities stipulated by the contract. So, if the subjects issued documents about the accident without the participation of authorized police officers, it is necessary to send a notification form to the insurer. This must be done within five days from the moment of the accident. Otherwise, after compensation for the damage, the insured will be presented with recourse claims on the basis of paragraph "g" of Art. 14 Federal Law "On CTP".
It is advisable to contact a qualified lawyer in case of problems with the insurance company.