Collection of insurance compensation under OSAGO judicial practice

The RF Armed Forces updated clarifications on compulsory motor liability insurance

The peculiarities of the application by courts of the legislation on compulsory civil liability insurance of vehicle owners have already been explained by the Supreme Court of the Russian Federation - in Resolution of the Plenum of January 29, 2015 No. 2 (hereinafter referred to as Resolution No. 2). However, after the adoption of this document, significant changes were made to the Federal Law of April 25, 2002 No. 40-FZ “On Compulsory Civil Liability Insurance of Vehicle Owners” (hereinafter referred to as the MTPL law). Thus, from January 1 of this year, insurers are required to conclude a compulsory motor liability insurance agreement in electronic form with each person who has submitted a corresponding application. Since April 28, the rule on the priority of natural compensation for damage caused to a number of cars as a result of an accident has been applied (clause 15.1, article 12 of the law on compulsory motor liability insurance).

In this regard, the RF Supreme Court approved a new resolution - Resolution of the Plenum of the RF Supreme Court dated December 26, 2017 No. 58 (hereinafter referred to as the Resolution). The document contains not only recommendations on the application of innovations, but also clarified positions of the Court on the application of norms that were already in force at the time of the previous decision, although most of the provisions of Resolution No. 2 were still transferred to it practically without amendments. Among the most important are new clarifications on the following issues.

Conclusion of the MTPL agreement. As a general rule, the conclusion of a contract is confirmed by the presence of an insurance policy. Since information about all MTPL contracts concluded electronically must be included in the automated compulsory insurance information system (Article 30 of the MTPL law), the RF Supreme Court recommends that courts take into account information about the fact of concluding a contract and its terms provided by a professional association of insurers. At the same time, the absence of information about the insurance policy in the said system cannot in itself be unconditional evidence of failure to fulfill the obligation to conclude an insurance contract; this fact must be assessed in conjunction with other evidence, the Court emphasized (paragraph 8 of the Resolution).

We remind you that the insured's electronic communication of false information when concluding a compulsory motor liability insurance contract in order to reduce the amount of the insurance premium paid to the insurer is not a basis for recognizing the contract as not concluded and does not relieve the insurer of the obligation to pay insurance compensation upon the occurrence of an insured event. But the insurer may recover the insurance payment made under such an agreement from the insured by way of recourse. Also, regardless of the occurrence of an insured event, the insurer has the right to recover the amount unjustifiably saved by the policyholder due to the provision of false information (paragraph 6, clause 7.2, article 15 of the law on compulsory motor liability insurance). However, if the specified amount is collected by the insurer before the occurrence of the insured event, it loses the right to file a recourse claim against the policyholder, since the insurance premium has been paid in full, considers the RF Armed Forces (paragraph 3, paragraph 9 of the Resolution).

Contacting the insurer. An application for insurance compensation or direct compensation for losses and others required in accordance with the Rules of compulsory civil liability insurance of vehicle owners are sent to the insurer or its representative (paragraph 3, paragraph 1, article 12 of the law on compulsory motor liability insurance). The list of representatives of the insurer authorized to carry out insurance compensation or direct compensation for losses must be issued to the policyholder simultaneously with the insurance policy against signature, the Court noted (clause 21 of the Resolution). Moreover, all documents sent after filing an application for insurance compensation must contain information about this application, for example, an indication of the division of the insurer to which it was submitted (clause 22 of the Resolution). The same rule, according to the Supreme Court of the Russian Federation, must be observed by the policyholder when filing a claim with the insurer in connection with non-fulfillment or improper fulfillment of its obligations. It is assumed that this will allow the insurer to correlate received documents with previous applications of this policyholder.

Direct damages. Starting from September 26, 2017, direct compensation for losses, that is, victims submitting a claim for compensation for damage to their insurer, is possible in the event of a collision of not only two, but also a larger number of vehicles (subparagraph “b”, paragraph 1, article 14.1 of the law on compulsory motor liability insurance ). Since this procedure applies only if the civil liability of the owners of all vehicles injured in an accident is insured, the Court clarified how insurance compensation is carried out in the case where the harm-cauter has not concluded a compulsory motor liability insurance agreement. It is stated that damage caused to the property of victims is compensated by the owners of vehicles (according to the rules provided for in Chapter 59 of the Civil Code of the Russian Federation), damage to life and health - by a professional association of insurers, and if the appropriate compensation payment is insufficient to fully compensate for the damage - by its causer (clause 27 of the Decree).

Refurbishment. The RF Armed Forces noted that, in addition to organizing and paying for the restoration of the damaged vehicle, the insurer must reimburse the victim - based on his application - for a number of other expenses, in particular - for the evacuation of the car from the scene of the accident, delivery of the person injured in it to the hospital, and carrying out work for the restoration of road signs and fences, etc. (clause 50 of the Resolution). In this case, expenses necessary to bring the car to pre-accident condition, but not provided for by the Unified Methodology for determining the amount of costs for restoration repairs in relation to a damaged vehicle, are not included in the insurance compensation. Such expenses, according to the Court, are, for example, the restoration of airbrushing or other drawings applied to the car (clause 39 of the Resolution).

If the insurer does not fulfill its obligations to organize repairs, the victim has the right to file a claim in court to recover insurance compensation in the form of an insurance payment or to force the insurer to take the required actions, including issuing a referral for repairs, the RF Armed Forces indicated (clause 52 Resolutions). In addition, in this case, the so-called astrent can be applied (Article 308.3 of the Civil Code of the Russian Federation) - the court has the right to award money in favor of the victim in case of non-execution of a judicial act.

Particular attention is paid in the Resolution to calculating the cost of restoration repairs. The court emphasized that, in contrast to the general rule, according to which the amount of costs for replacing components is determined taking into account wear and tear (clause 19, article 12 of the law on compulsory motor liability insurance), payment for the cost of mandatory restoration repairs is made by the insurer without taking into account wear and tear (clause 59 of the Resolution) . As noted by the Secretary of the Plenum of the RF Armed Forces Viktor Momotov , this rule is a kind of compensation for vehicle owners who cannot choose such a method of insurance compensation as receiving an insurance payment. As noted above, from April 28, damage caused to a passenger car that is owned by an individual and registered in the Russian Federation is compensated, with the exception of a number of cases, only by carrying out restoration repairs (clause 15.1 of article 12 of the law on compulsory motor liability insurance).

MATERIALS ON THE TOPIC

Find out about the position of the RF Armed Forces on the application of the norms of the Civil Code on the change of persons in an obligation on the basis of a transaction from the news.

Assignment of demand. The Supreme Court of the Russian Federation reminded that the transfer of the rights of the victim (beneficiary) under the MTPL agreement is possible only from the moment the insured event occurs. Moreover, the new beneficiary can receive compensation subject to the same conditions as those provided for the original beneficiary. For example, he must notify the insurance company about the occurrence of an insured event, send an application for insurance payment, present the property for a technical examination, and file a claim if the previous beneficiary did not do so (clause 73 of the Resolution).

Rights such as the right of the victim to compensation for harm to life and health, compensation for moral damage, receipt of a fine collected from the insurer for failure to voluntarily fulfill the requirements of the victim and a similar fine for failure to fulfill the requirements of the consumer are not subject to transfer under an assignment agreement. However, the already awarded amounts of compensation for moral damage and these fines can be transferred to any person, the Court considers (paragraph 71 of the Resolution).

Procedural issues. A number of new clarifications are devoted to the procedural features of the consideration of disputes related to MTPL agreements. It is noted, in particular, that the mandatory pre-trial procedure for resolving disputes is considered to be observed if the victim not only sent the insurer a claim and all the necessary documents, but also indicated in them information that will allow the claim to be correlated with previous appeals. In the event of filing a claim for recovery of not only insurance compensation, but also a penalty or other financial sanction, the pre-trial procedure is considered to have been followed if the victim contacted the insurer only with a demand for insurance payment (clause 93, clause 98 of the Resolution). If claims for the collection of penalties and financial sanctions are made after the court decision on the payment of insurance compensation has entered into force, the victim is obliged to send them to the insurer before going to court. By the way, when filing several claims under one contract, you need to keep in mind that the court may recognize such a division of claims as artificial and refuse to reimburse the legal costs incurred, citing the plaintiff’s abuse of procedural rights (clause 102 of the Resolution).

Collection of insurance compensation under compulsory motor liability insurance

Chertkoev I.B. filed a lawsuit against SK Moskovia LLC to recover the amount of the insurance payment. The substantiation of the stated claims states that dd.mm.yyyy an accident occurred involving a Mercedes state-owned vehicle. reg. sign no. The plaintiff appealed to SK Mosko LLC.

Dalgatov D.K. The Pervomaisky District Court filed a claim against JSC SK Regiongarant to recover the amount of the insurance payment. In substantiating the stated claims, the plaintiff indicated that dd.mm.yyyy there was damage to a state-owned Volkswagen vehicle. R.

Babayan S.D. The Pervomaisky District Court filed a claim against JSC SK Regiongarant to recover the amount of the insurance payment. In substantiating the stated claims, the plaintiff indicated that dd.mm.yyyy there was damage to a state-owned Volkswagen vehicle. reg. sign no. Iste.

Agasyan Yu.L. filed a lawsuit against PJSC IC "Rosgosstrakh" to collect insurance compensation. In support of the requirements it is stated that 02/07/2017. There was a traffic accident, as a result of which the plaintiff's car Mer.

The representative of the plaintiff Lazarenko A.V., acting on the basis of a power of attorney dated dd.mm.yyyy, approached the court with claims against PJSC IC Rosgosstrakh for compensation for material damage, the justification for which is stated as follows. dd.mm.yyyy occurred.

Podgornaya I.A. filed a claim with the Pervomaisky District Court against PJSC IC Rosgosstrakh to recover the amount of the insurance payment. In support of the stated claims, the plaintiff indicated that dd.mm.yyyy an accident occurred, as a result of which there were etc.

Cholakyan A.G. filed a claim with the Pervomaisky District Court against PJSC IC Rosgosstrakh to recover the amount of the insurance payment. In support of the stated claims, the plaintiff indicated that dd.mm.yyyy an accident occurred, as a result of which there were reasons.

Tsai I.N. filed a claim with the Pervomaisky District Court against PJSC IC Rosgosstrakh to recover the amount of the insurance payment. In support of the stated claims, the plaintiff indicated that dd.mm.yyyy an accident occurred, as a result of which they were injured.

Roganin S.S. filed a claim with the Pervomaisky District Court against PJSC IC Rosgosstrakh to recover the amount of the insurance payment. In support of the stated claims, the plaintiff indicated that dd.mm.yyyy an accident occurred, as a result of which there were reasons.

Plaintiff E.V. Makeeva appealed to the court. with claims against PJSC IC "Rosgosstrakh" for compensation of material damage, the justification for which is stated as follows. dd.mm.yyyy there was a traffic accident, as a result of which the car .

Stepanov R.V. filed a lawsuit against PJSC IC "Rosgosstrakh" for the recovery of the amount of insurance compensation of 161,282.70 rubles, a fine, penalties, financial sanctions, compensation for moral damage and legal expenses. In support of the claim, she referred to the fact that art.

Plaintiff A. N. Badalov filed a claim against PJSC IC Rosgosstrakh for compensation for material damage, the justification for which is stated as follows. dd.mm.yyyy there was a traffic accident, as a result of which the car.

The representative of the plaintiff V.E. Kovalev, acting on the basis of a power of attorney dated dd.mm.yyyy, appealed to the Pervomaisky District Court with claims against PJSC IC Rosgosstrakh for compensation for material damage, the justification for which is stated as follows.

Keyan G.S. filed a lawsuit against PJSC IC "Rosgosstrakh" for the recovery of penalties and fines. In support of the claims it is stated that by the decision of the Pervomaisky District Court of Krasnodar dated April 13, 2017. Fear was recovered from PJSC IC Rosgosstrakh in favor of the plaintiff.

The representative of the plaintiff, Mavyan E.D., acting on the basis of a power of attorney dated dd.mm.yyyy, approached the court with claims against PJSC IC Rosgosstrakh for compensation for material damage, the justification for which is stated as follows. dd.mm.yyyy happened d.

Gerasimov A.O. filed a lawsuit against JSC "VSK" for the collection of insurance compensation. In support of the stated claims, the plaintiff indicated that on July 8, 2016, a traffic accident occurred, as a result of which the plaintiff's car Kio Rio."

Berlyakova I.Yu. filed a claim with the Pervomaisky District Court against PJSC IC Rosgosstrakh for the recovery of the amount of the insurance payment. In support of the stated claims, the plaintiff indicated that dd.mm.yyyy an accident occurred, as a result of which mechanical injuries were caused.

The representative of the plaintiff Lazarenko A.V., acting on the basis of a power of attorney dated dd.mm.yyyy, approached the court with claims against PJSC IC Rosgosstrakh for the recovery of a penalty, the cost of a notarized power of attorney, the justification for which is indicated below.

Chermit A.V. The Pervomaisky District Court filed a claim against PJSC IC Rosgosstrakh for recovery of the amount of the insurance payment. In support of the stated claims, the plaintiff indicated that dd.mm.yyyy an accident occurred, as a result of which mechanical damage was caused.

Arutinyan M.I. filed a claim with the Pervomaisky District Court against PJSC IC Rosgosstrakh for the recovery of the amount of the penalty. In support of the stated claims, the plaintiff indicated that on November 12, 2016, an accident occurred, as a result of which mechanical damage was caused.

Judicial practice on decisions to collect insurance compensation under CASCO and as a result of an accident under OSAGO

Most often, insurance claims lawsuits concern the consequences of an accident. The decision to collect insurance compensation does not always satisfy the parties to the accident. This article will discuss how to compensate for the damage caused by the culprit of an accident in full, what is the statute of limitations for insurance compensation cases, what is the collection procedure and how to correctly file a claim.

Judicial practice for collecting insurance compensation

Judicial practice, the review of which was approved on June 22, 2016, showed that full compensation for harm occurs in rare cases. The difference between the insurance payment and the actual damage is often large and can amount to tens of thousands of rubles.

This happened because the amount of the missing cost for repairing the vehicle was determined according to a special methodology, which included taking into account the wear and tear of parts and spare parts. Also, the procedure could be carried out for a long time, doing it deliberately. After the decision of the Constitutional Court, some problems disappeared (for example, the amount began to be calculated objectively, even without taking into account wear and tear of parts), but completely different ones began to arise. Below we will consider them using the example of real court decisions.

Court decisions on compulsory motor liability insurance

The court often declared the insurance claim invalid, but the actual cost was not paid, because They referred to the prices regulated by OSAGO and to the fact that the requirement to pay in excess of insurance is completely contrary to the law (which, as it later turned out, is not the case at all).

In 2017, the Constitutional Court (CC) recognized that such a methodology is biased and does not cover actual expenses, and insurance payments are regulated and may not fully compensate for damage.

Article 1072 of the Civil Code of the Russian Federation states that legal. a person or individual, being the injured party in an accident, may demand the missing payment directly from the culprit, based on the costs (which the party confirms in court) for new components to repair the car, even if the value of the property after the damage has become more than before him.

Now the court is mostly on the side of the victim. Thanks to the actions of the Constitutional Court, the process of collecting underpaid insurance compensation has become simpler: the victim has rightly received the right to demand payment of the full cost of the damage, which allows him to fully cover the cost of repairs, which may not have happened until recently.

Court decisions on CASCO

CASCO insurance companies also want maximum profit from their activities - they often impose unclear insurance conditions, delay payments, and then may even lower them. The collection of insurance compensation relating to CASCO is noticeably different from OSAGO.

Practice shows that experts are hired who deliberately underestimate the amount of damage to a car as a result of an accident. They also use another trick. If the car is declared completely unusable, the car owner can demand the full amount of payment, but the company has the right not to pay for the “usable” (whole) remains of the car. What remains intact is decided only by an expert, whom the company invites (included in the terms of the insurance). It is clear that the expert’s opinion may be biased, therefore, if in doubt, you need to go to court, which by law has the right to conduct its own independent examination.

ATTENTION! Insurance companies also suffer from late payment of compensation. They do this, citing that the terms of compensation are delayed due to verification by a specialist. But if there is no clause stating that the deadline for payment is extended in the event of an examination, the insured has every right to go to court to collect a penalty, because the failure to meet deadlines was not provided for in the contract between him and the company.

Collection of underpaid compensation

The collection procedure is not difficult.

If a person injured in an accident believes that the insurance company’s decision on the amount of insurance payment does not fully cover car repairs or it was determined biasedly, he hires an independent expert (the organization in which the expert works must be accredited, and the specialist himself must have a license) .
When the examination shows that an additional payment is required (in other words, initially there was no actual amount of insurance compensation), the injured car owner turns to the same insurance company, having in hand the results of the examination with the decision of an independent specialist.
Within 20 days, the company is obliged to make an additional payment for the insured event using the details specified when submitting a repeated application (they must be specified again). If the decision of the Investigative Committee is negative, you need to go to court.

Previously, underpayment for an insured event was the cornerstone of the conflict between the insurance company and the owner of the damaged car (collection was a difficult, labor-intensive process for the victim), but now it is enough to conduct your own examination. In case of refusal, you can go to court, which, by its decision, will side with the victim and force the insurance company to pay extra. Plus, you can also receive moral damages for the reluctance of insurance agents to accept the results of the examination.

Issues of collecting penalties

Contents of Art. 12. Paragraph 21 of the law on compulsory motor liability insurance clearly states that the insurance company has 20 days (excluding holidays - they are non-working days) to pay the entire cost. It is important that in the case where the victim wishes to have the car repaired at a service station with which the insurance company does not have an agreement, the period is increased to one month (clause 15.3).

Accordingly, if after the expiration of all deadlines the insurance company refuses to pay, citing, for example, that the examination is biased, you need to go to court. If the court, by its decision, recognizes the objectivity of the examination, the insurers are also obliged to pay a penalty for failure to meet deadlines (the penalty is collected by the court). The insurance company has only 20 (30) days, no more, to decide to collect insurance compensation.

The penalty is not collected only because of acts of force majeure or because of the guilt of the victim in failure to meet deadlines.
The obligation to pay the penalty begins 21 days after the insurance company accepts the application for compensation for damage.
When the victim contacts the insurance company for compulsory motor liability insurance again, it is necessary to provide a certified examination and the entire list of documents for payment of the insured event, that is, the algorithm of actions is the same as the first time.

Features of court decisions in cases of harm to health

In an accident, not only the vehicle, but also its owner can be damaged. In this case, a court decision on payment of compensation is provided, i.e. compensation for injury to health (moral compensation is also provided).

The payment includes an examination that identifies the injuries sustained, the costs of necessary medications and other supplies (confirmed by receipts, x-rays or hospital extracts), but only if they are not included in the compulsory medical insurance (health insurance) services.

According to Article 1079 of the Civil Code of the Russian Federation, the person who caused the harm is obliged to compensate it in full.

The amount is calculated by the insurer in accordance with Article 59 of the Civil Code of the Russian Federation, but, according to Article 159, this function can be performed by the court when making a decision, which will take into account the degree of severity inflicted on the injured person and the degree of guilt of the offender in the current situation.

Subrogation in insurance

Subrogation allows the insurance company to recover the amount of damages paid to the victim from the person who caused the accident. She has this right if the total amount is more than 400 thousand rubles (500 thousand for causing harm to health).

A company has the right to collect insurance compensation by way of recourse only when:

She paid the established amount of damage to the victim, taking into account all the documents provided by him (including an expert opinion regarding the calculation of the cost).
The insurance company filed a lawsuit to recover compensation from the person at fault for the accident, and they decided that this was advisable.

ATTENTION! The party at fault in the accident must be present at the court hearing, because otherwise the decision on collection may be made in absentia and it very often happens that the amount is overstated. It is better to come to the meeting than to later file an appeal about disagreement with the required amount.

The statute of limitations for an insurance agent is 2 years (3 years for personal injury), after the expiration of this period the claim will not be considered.

The right of recourse arises in the following circumstances:

At the time of the accident, the culprit was under the influence of alcohol or drugs (a medical examination must be recorded).
The license was expired or did not exist at all at the time of the accident.
A person drove someone else's car without a power of attorney (collected from the car owner only if he does not prove that the car was stolen).
Expired maintenance ticket.
The accident was provoked and the guilty party was a direct accomplice.

It follows from this that, by way of subrogation, money can be demanded from the culprit only in case of violations of laws, and not as a result of accidental reasons, and only by court decision.

Limitation periods for insurance compensation cases

From the moment the company refuses to pay an additional insurance payment or if it does not transfer part of the funds, the statute of limitations for the insurance compensation case begins. That is, from this day, when the injured person learned about the violation of his rights, the statute of limitations begins for him.

There is an opportunity to receive payment before the expiration of the insurance contract. Otherwise, when the damage occurred outside the validity period of the contract, the insured event will be declared invalid.

The period for a claim to the court is 2 years, for a claim against the culprit (situations described above) 3 years.

Statement of claim

Rules for filing a claim:

The statement of claim must refer to the regulations existing in the current legislation.
It is imperative to follow the structure.

full name of the court;
contact details and full name of the plaintiff;
Full name of the defendant and his contact information;
requirements, amount of payment and amount of state duty;
circumstances giving the right to claim;
evidence that there was a violation of rights;
the entire list of documents attached to the claim (evidence, documents documenting the occurrence of circumstances);
date, signature.

A sample claim, which can be downloaded for free, will tell you more about the structure of the claim here.

The plaintiff submits an application at the location of the defendant (if he is a legal entity - at the address of the organization). As part of your appeal to the Investigative Committee, you can also submit documents to your district court - under the Law on the Protection of Consumer Rights.

There are 2 ways to submit:

in person to the office;
by registered mail with notification.

IMPORTANT! You must keep the receipt for submitting the letter. This will be useful as proof of meeting deadlines.

State duty on business

State duty is collected from citizens or legal entities. persons for their appeal to government agencies. For each application or action related to government agencies, its own fee is regulated.

According to the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 17 of June 28, 2012 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights” and Article 333 36 of the Tax Code of the Russian Federation - statements of claim in insurance disputes that are related to compulsory motor liability insurance or CASCO insurance are not taxed ( preferential terms), so that the state duty for collecting insurance compensation does not require payment.

Any car owner may find himself in a situation where he needs the services of insurance companies. But he must understand that he has the right to collect insurance compensation under contracts with MTPL companies and the law will be on his side. To indicate his rights, he will have to take into account all the nuances existing in Russian legislation.

To resolve such issues, you can request a free consultation on our website (form in the corner of the screen).

Did you like the post? Was it comprehensive and helpful? Then share this article - repost and like!