Is it possible to recover damages to the organization from the driver?

Compensation for damage caused to the employer by an employee in an accident

The article discusses the legal issues of compensation for damage caused in a traffic accident by a person driving a vehicle, performing duties under an employment contract or acting in the interests of an employer. From the proposed material, the reader will learn how and in what amount damage caused by an employee is compensated. driver, we will consider the grounds under which the driver bears full and limited financial liability to the employer for the damage caused by him in a road accident.

The content of the article

The main sign of any traffic accident is the onset of harmful consequences. Regardless of the nature and size of the harm caused - material, moral, or its combination, the harm is subject to compensation to the injured person in full. A special case of causing harm, which has certain specifics, is an accident due to the fault of an employee - a driver driving a vehicle. As a rule, in such accidents, direct material damage to the employer is expressed in damage to the vehicle owned by him and (or) the cargo being transported. In addition, if third parties or their property were injured in an accident, then the employer is responsible for such actions of the employee, who thereby suffers indirect damage.

Employer's liability for damage caused by an employee in an accident

In accordance with Article 1068 of the Civil Code of the Russian Federation:

A legal entity or citizen compensates for damage caused by its employee in the performance of labor (official, official) duties.

For the correct understanding and application of this legal norm in relation to the topic discussed in the article, the term “employee” applies to individuals, regardless of their nationality, who drove a vehicle on the basis of an employment agreement (contract), as well as drivers performing work on a civil contract, if the specified persons acted or should have acted on the instructions of the employer (guarantor) and under his control over the safety of transportation.

Thus, the current provisions of the law unambiguously indicate the employer as the person responsible for the harmful consequences from the actions of the driver-employee to the victim.

Professional drivers who have been involved in an accident, regardless of their guilt in violating the requirements of the Road Traffic Rules, should know and remember that when a claim for damages is brought against them, the employer should be involved in the case as a co-defendant.

Grounds and amount of compensation for damage caused by an employee-driver

In the vast majority of road traffic accidents caused by employees, employers file claims against them demanding full compensation for material damage caused by damage to their cars and (or) other property. These types of requirements are not always based on the law. The fact is that when concluding an employment contract, the employer often includes in it conditions regarding the driver’s full financial liability for damage to the vehicle entrusted to him and other property. However, the full financial responsibility of an employee cannot be established contractually.

The procedure and conditions for compensation for damage are regulated in the current labor legislation. The terms of an employment or other contract that contradict the requirements of the law should not be applied and shall be declared invalid. Therefore, a driver who finds himself in a situation in which the property interests of the employer (customer) are affected is advised to refrain from unconditionally fulfilling such claims.

Article 22 of the Labor Code of the Russian Federation gives the employer the right to bring employees to disciplinary and financial liability in the prescribed manner, therefore, in each individual case of an accident, it is important to understand the factual grounds for collecting damages from the driver-employee.

In accordance with the law, the liability of an employee - driver of a vehicle for causing property damage to the employer, occurs only if there is fault. Guilt must be proven and established by an act that has entered into legal force.

Article 238 of the Labor Code of the Russian Federation establishes the employee’s obligation to compensate the employer for direct actual damage caused to him. In this case, direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of the specified property (including the property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make expenses or unnecessary payments for acquisition, restoration of property or compensation for damage caused by an employee to third parties.

At the same time, the employer may waive the right to recover damages from the guilty employee, releasing the latter from financial liability (Article 240 of the Labor Code of the Russian Federation).

The law protects the rights of the employee by limiting the amount of his liability within the limits of the average monthly salary established at the time of the accident for his position. Thus, as a general rule, for causing material damage from damage to rolling stock and (or) transported cargo, as well as damage caused to third parties compensated by the employer, the employee-driver bears financial liability within the limits of his average monthly earnings (Article 241 of the Labor Code of the Russian Federation ).

However, the norms of the Labor Code of the Russian Federation (LC RF) provide for the possibility of full liability for the employee. An employee-driver may be held liable for full financial liability in the form of compensation for direct actual damage caused to the employer in full. The grounds that entail full financial liability and its conditions are listed in Articles 242, 243 of the Labor Code of the Russian Federation.

We can highlight the following cases of full liability of the driver to the employer.

1. Committing an administrative offense that resulted in a traffic accident and bringing to administrative responsibility, by a decision of the traffic police, court or other administrative body that has entered into legal force.

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As a rule, we are talking about violations of traffic rules of the Russian Federation, liability for which is provided for in Chapter 12 of the Code of the Russian Federation on Administrative Offenses. Judicial practice in such cases is based on the position approved by paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 N 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer.”

2. The commission of a crime that resulted in harm and was confirmed by a court verdict that has entered into legal force. This can be either an intentional crime or a crime committed through negligence, an example of which is the offense specified in Article 264 of the Criminal Code of the Russian Federation.

3. Causing damage while under the influence of alcohol, drugs or other toxic substances. The fact of being in a state of intoxication must be proven and confirmed by a medical examination report or the conclusion of a medical and drug examination.

4. Committing a traffic accident not while performing work duties using a vehicle owned by the employer.

It is important to know: the liability of an employee - driver of a vehicle to the employer is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, as well as in case of failure by the employer to fulfill the obligation to provide adequate conditions for maintaining the vehicle in technically sound condition, entrusted to the employee to perform job duties.

Procedure for compensation for damage caused by an employee to an employer

The procedure for compensation for damage caused by an employee to the employer is determined by the norms of the Labor Code of the Russian Federation. Its main provisions boil down to the following actions.

Establishing the amount of damage caused by the driver-employee. Its amount includes all actual losses, calculated on the basis of market prices in force in a given region on the date the damage occurred, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property (Article 246 of the Labor Code of the Russian Federation).
Conducting an inspection by the employer to determine the amount of damage caused, as well as the causes and conditions of its occurrence. In practice, these tasks are solved by a commission, which is created by written order of the employer and exercises the powers assigned to it.
During the inspection, an explanation is accepted in writing from the employee regarding the circumstances of the traffic accident, measures are taken to obtain the necessary information and documents from the traffic police about the accident, estimates and calculations are drawn up, etc. If the driver refuses to provide the required information, members of the commission draw up Act.
Upon completion of the commission’s work, an inspection report is drawn up, which is signed by all its members. All materials collected by the commission and the final conclusion are provided to the driver for review. In case of disagreement, the employee has the right to appeal the commission’s findings.
Based on the commission’s act, the employer issues a decree (order) to recover the damage caused from the employee’s wages, if the amount of damage caused does not exceed the employee’s average monthly earnings. Such an order is issued within a period not exceeding one month from the date the employer establishes the final amount of material damage caused.

If the employee-driver does not agree to voluntarily compensate for the damage caused to the employer, the latter has the right to file a claim in court for compensation for material damage caused in an accident, including in the amount of claims both direct damage and recourse claims. The defendant in such a claim will be the driver involved in the accident. When considering a case in court, it will be confronted by professional lawyers sent by the employer with the goal of turning a person into debt slavery.

It is important to understand that the chances of success for professionals are much higher than for amateurs. In order to achieve justice in case of disagreement with the demands of the plaintiff - the employer, as well as with the fault in the accident, the participant in the accident should not neglect the help of professional lawyers.

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You can recover damages from the driver-employee of the enterprise who caused the accident

A regular driver of an organization was involved in a traffic accident while transporting other employees of the organization, and he was the culprit. The employer decided to deprive him of his bonus at the end of the month. One of the victims (a third party) wants to recover from the organization the amount of damage caused to him, which was not covered by insurance.

Does the organization have the right to withhold this amount from the driver, or, since he has already been deprived of the bonus, does the organization have no such right?

1. According to paragraph 1 of Art. 1068 of the Civil Code of the Russian Federation, a legal entity compensates for damage caused by its employee in the performance of labor (official, official) duties. In accordance with paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation, a person who has compensated for damage caused by another person (including an employee in the performance of his official, official or other labor duties) has the right to claim back (recourse) against this person in the amount of the compensation paid, unless a different amount is established by law. That is, the employer’s right to claim compensation for damage will arise only after it pays compensation to the person who was harmed by the employee’s actions.

In accordance with Art. 233 of the Labor Code of the Russian Federation, financial liability of a party to an employment contract occurs for damage caused by it to the other party to this contract as a result of its culpable unlawful behavior (actions or inaction), unless otherwise provided by the Labor Code of the Russian Federation itself or other federal laws. The employee's financial liability is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation). In other words, guilt is a prerequisite for bringing an employee to financial responsibility.

It is clear from the question that the driver is to blame for the road traffic accident (hereinafter referred to as the accident), and, consequently, for the damage caused as a result of this accident. According to part one of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property, as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or for compensation for damage caused by the employee to third parties (part two of Article 238 of the Labor Code of the Russian Federation). From the foregoing it follows that payments in compensation for harm that will be made by the employer to a third party due to the fault of the employee are direct actual damage for the employer, since they will entail a decrease in the property (cash) of the employer by the amount paid. The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear of this property (part one of Art. 246 Labor Code of the Russian Federation). As a general rule, for damage caused to the employer, the employee bears limited financial liability within the limits of his average monthly earnings (Article 241 of the Labor Code of the Russian Federation). Full financial liability, which involves compensation for direct actual damage caused to the employer in full, can be assigned to the employee only in exceptional cases, directly provided for by the Labor Code of the Russian Federation or other federal laws (Article 242 of the Labor Code of the Russian Federation).

Consequently, if the employer compensates for the damage caused by the employee to a third party, and the amount of the specified payment does not exceed the average monthly earnings of this employee, then the employer has the right to recover the specified amounts from him (Article 241 of the Labor Code of the Russian Federation). In this case, recovery from the guilty employee is carried out by order of the employer. The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee (part one of Article 248 of the Labor Code of the Russian Federation). If the amount of damage caused exceeds the average monthly earnings of the guilty employee, then the employee can be brought to full financial liability only if there are grounds provided for in part one of Art. 243 Labor Code of the Russian Federation. In the absence of such grounds, the employee may be charged only an amount that does not exceed his average monthly earnings, regardless of the amount of damage caused.

In the situation under consideration, the only option for bringing the driver to full financial liability is the case provided for in paragraph 6 of the first part of Art. 243 of the Labor Code of the Russian Federation - causing damage as a result of an administrative offense, if established by the relevant government body. Judicial practice proceeds from the fact that prosecution on this basis is possible provided that, based on the results of the consideration of a case of an administrative offense, a decision was made against the employee to impose an administrative penalty or a decision to terminate the proceedings due to the insignificance of the offense (clause 12 Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 N 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer”). In addition, judicial practice also shows that the mere fact that an employee holding the position of driver committed a traffic accident, as a result of which damage was caused to the employer, is not enough to apply full financial liability to such an employee, if there are no grounds for this, directly provided for by law (see resolution of the Federal Antimonopoly Service of the North-Western District dated March 2, 2009 N A56-25335/2008, cassation ruling of the St. Petersburg City Court dated March 14, 2011 N 33-3500/2011, ruling of the Presidium of the Moscow Regional Court dated February 11, 2004 N 103 ).

Thus, if the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage exceeds his average monthly earnings, then the recovery of this amount can only be carried out by the employer in court. If the court satisfies the employer’s demand for compensation by the employee in full, then the debt will be repaid in accordance with the court decision. If the employer does not have legal grounds for bringing the employee to full financial liability, then the recovery from the guilty employee of the amount of damage caused, not exceeding his average monthly earnings, can be carried out on the basis of the employer’s order. And in this situation, the employee’s consent is not required. However, it must be remembered that such an order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee.

2. According to Art. 129 of the Labor Code of the Russian Federation, incentive payments (additional payments and bonuses of an incentive nature, bonuses and other incentive payments) are an integral part of wages. Remuneration systems, including bonus systems, are established by collective agreements, agreements, local regulations in accordance with labor legislation and other regulatory legal acts containing labor law norms (part two of Article 135 of the Labor Code of the Russian Federation). By virtue of part one of Art. 191 of the Labor Code of the Russian Federation, the employer encourages employees who conscientiously perform their job duties (declares gratitude, gives a bonus, awards a valuable gift, a certificate of honor, nominates them for the title of the best in the profession). Thus, a bonus is paid for certain achievements in work, the fulfillment of certain indicators, and its purpose is, first of all, to increase the motivation of employees. Therefore, the circle of employees receiving bonuses, the terms of bonuses and the size of bonuses are determined, as a rule, by local regulations adopted taking into account the opinion of the representative body of employees (Article 135 of the Labor Code of the Russian Federation). Since the legislation does not establish the conditions for bonuses, the provisions of the local regulatory act of the employer that establishes the bonus are of key importance. The head of the organization has the right not to accrue (reduce) a bonus to an employee whose work did not meet the criteria established in such a local regulatory act.

Thus, a bonus is a means of stimulating the conscientious performance of work duties by an employee, and the deprivation of an employee of a bonus depends on the will of the employer and does not indicate that the employee has incurred expenses to compensate for the damage caused to him as a result of an accident. In other words, depriving an employee of a bonus does not prevent the employer from demanding compensation for direct actual damage caused to him by the employee. A similar position is reflected in judicial practice (see the decision of the Kemerovo District Court in case No. 2-822/2011).

Answer prepared by:
Expert of the Legal Consulting Service GARANT
Pavlova Natalia

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Kudryashov Maxim

September 7, 2012

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

How to recover full damages from a driver who has committed an accident?

Today the driver had an accident, drove into a pole, crashed the employer’s car, and I think that one of these days he will come with a letter of resignation of his own free will, so as not to compensate for the damage. The traffic police officers issued a ruling refusing to bring the person to administrative liability and now it is impossible to recover damages in full in court. What can be done? I suppose you can appeal the traffic police’s decision, but where? What do I need to write in order for me to be recognized as a victim, since I am not a participant in the accident?

Clarification from the client

Unfortunately, I cannot attach a copy of the definition, since the scanned copy is not readable (poor quality of the original). The car belongs to my husband, but I rent it for an individual entrepreneur under a lease agreement and use it for business purposes. I think it won’t be difficult to prove myself a victim, since under the lease agreement I bear full responsibility for transport. The husband is the same individual entrepreneur and his main activity is leasing property.

The decision to refuse to initiate an administrative offense case states that the driver lost control and collided with a light pole. Material damage was caused.

The problem I see is that I don’t know how to justify the elements of an administrative offense. What to refer to.

Clarification from the client

Drivers of our organization are accepted for the position of forwarding driver and an agreement on full financial responsibility is concluded with them. The position of forwarder is on the list of employees with whom it is possible to conclude an agreement on full maturities. answer. Can the combination of these two positions help me in any way? In this case, can I win anything? It will not turn out that at the court hearing it turns out that I did not have the right to enter into an agreement for complete swearing. resp. with a forwarding driver, since the position of forwarding agent appears on the list?

Hello Marina, this conclusion is absolutely incorrect. The fact that traffic police officers did not see the driver’s actions as an administrative offense does not mean that it is impossible to recover damages.

Not every road accident entails administrative liability.

You need to assess the damage and recover it through the court.

Article 238. Financial liability of an employee for damage caused to the employer.
The employee is obliged to compensate the employer for direct actual damage caused to him. Lost income (lost profits) cannot be recovered from the employee.
Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

Unfortunately, in this case there is no corpus delicti of an administrative offense.

Yes, maybe - this is exactly what you base your claim on

Please explain, is the cost of repairs much higher than his monthly salary?

Official salary 10 damage 200

The most effective way to appeal is to the district court

In accordance with the Code of Administrative Offenses of the Russian Federation

Code of Administrative Offenses of the Russian Federation, Article 30.1.
The right to appeal a decision in a case of an administrative offense 1. A decision in a case of an administrative offense may be appealed by the persons specified in Articles 25.1 - 25.5.1 of this Code:
1) made by a judge - to a higher court;
2) issued by a collegial body - to the district court at the location of the collegial body;
3) issued by an official - to a higher body, a higher official or to the district court at the place of consideration of the case ;
3.1) issued by the official specified in Part 2 of Article 23.79, Part 2 of Article 23.79.1 or Part 2 of Article 23.79.2 of this Code - to a higher body, a higher official, authorized by the relevant regulatory legal act of the President of the Russian Federation, the Government of the Russian Federation Federation or an agreement on the transfer of the exercise of part of the powers to the federal executive body or to the district court at the place of consideration of the case;
4) issued by another body created in accordance with the law of a constituent entity of the Russian Federation - to the district court at the place of consideration of the case.
1.1.
A decision in a case of an administrative offense made by a judge may also be appealed to a higher court by an official authorized in accordance with Article 28.3 of this Code to draw up a protocol on an administrative offense 2. If a complaint against a decision in a case of an administrative offense has been received by the court and the court considers the complaint to a higher authority, a higher official.
Based on the results of consideration of the complaint, a decision is made.
3. A decision in a case of an administrative offense related to the implementation of entrepreneurial or other economic activities by a legal entity or a person carrying out entrepreneurial activities without forming a legal entity is appealed to the arbitration court in accordance with arbitration procedural legislation.
(as amended by Federal Law No. 307-FZ of October 14, 2014)
(see the text in the previous edition)
4. The determination to refuse to initiate a case on an administrative offense is appealed in accordance with the rules established by this chapter.

After it is cancelled, you can contact the traffic police with an application to recognize you as a victim

Article 25.2.
Victim 1. A victim is an individual or legal entity who has suffered physical , property or moral harm due to an administrative offense.
2. The victim has the right to familiarize himself with all the materials of the case regarding an administrative offense, give explanations, present evidence, file petitions and challenges, use legal assistance from a representative, appeal the decision in this case, and use other procedural rights in accordance with this Code.

Until there is a resolution on the APN, you will not be held fully responsible

Article 243. Cases of full financial liability
Financial liability in the full amount of damage caused is assigned to the employee in the following cases:
1) when, in accordance with this Code or other federal laws, the employee is assigned financial responsibility in full for damage caused to the employer during the performance of the employee’s work responsibilities;
2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) causing damage while under the influence of alcohol, drugs or other toxic substances;
(as amended by Federal Law No. 90-FZ of June 30, 2006)
5) damage caused as a result of criminal actions of an employee established by a court verdict;
6) causing damage as a result of an administrative violation, if established by the relevant government body

If he lost control, then it will be difficult to refer to something. There is no such composition in the Administrative Code

I am an employer. How can I compensate for damages resulting from an accident caused by an employee?

Road accident cases are quite complex, since when resolving them it is necessary to take into account the norms of several branches of law: civil, administrative, labor law, and sometimes criminal. Compensation for damages from a road accident to an employer can be carried out in different ways depending on the circumstances of a particular road accident.

Article 1068 of the Civil Code of the Russian Federation establishes that the employer is responsible for damage caused by an employee, while only the guilty person can be held liable for causing damage. In other words, the innocent driver is not required to compensate the injured party or the employer.

Thus, before raising the issue of compensation for damage caused in an accident, the employer must clarify three points:

whether his vehicle was involved in the incident;
whether his employee was driving the vehicle;
Is the employee guilty?

Only the combination of these three points is the basis for compensation for damage to the injured party.

Get expert advice on your situation

The fact of guilt/innocence of the driver must be recorded by the traffic police in the protocol or reflected in the court ruling.

The existence of labor relations between the employee driving the car and the organization or individual entrepreneur (vehicle owner) is confirmed by:

labor agreement;
service contract;
employment order;
contract agreement.

Compensation for losses can only be imposed on employees who acted on the instructions of the employer, who, for his part, ensured compliance with safety regulations, evidence of which is a waybill or other document about the employee’s route.

The ownership of vehicles is established on the basis of balance sheets, title documents on ownership, as well as a lease agreement.

Why do you need insurance?

Car owners are required to take out civil liability insurance - this will allow them to compensate for damage in the event of a traffic accident.

In accordance with the provisions of Article 1079 of the Civil Code of the Russian Federation, the injured party makes a demand to compensate for material and/or moral damage to the owner (lessee) of the car, as the owner of a source of increased danger. In such a situation, the damage caused may be covered by insurance payment.

Article 7 of the special Federal Law No. 40 establishes the limit amounts of compensation:

if harm is caused to the life (health) of a person - 500 thousand rubles for each victim;
in case of damage to property, the amount will be 400 thousand rubles to each owner who suffered material damage.

As a general rule, an employee driving a vehicle bears financial liability within the limits of the average salary, with the exception of the grounds provided for in Art. 243 TK. If the insurance does not cover the damage of the accident, then the remaining amount is repaid at the expense of the enterprise (IP). The company can recover the difference between the insurance payment and the amount of damage from the employee by way of recourse. Balances not collected for various reasons are classified as losses.

Independent examination after an accident - Find out more

Full compensation for losses

The guilty employee shall compensate the damage to the employer in full on the grounds expressly provided for in Article 243 of the Labor Code of the Russian Federation, including an administrative offense established by a government agency. In this case, Article 238 of the Labor Code allows compensation for direct actual damage, and lost benefits are not taken into account. The obligation to compensate the employer for the damage caused is relative: thus, at the request of the perpetrator, the court can reduce the amount of compensation or completely exempt the employee from payments if there are compelling reasons (Article 250 of the Labor Code of the Russian Federation). Judicial practice on compensation for road accident damage adheres to the principle of a proportional reduction in the liability of the hired person, subject to the provision of evidence:

difficult financial situation (for example, the amount of loan payments exceeds wages);
the presence of other family members (2 minor children, spouse on maternity leave) and other circumstances.

Thus, the employee is responsible for causing harm only in cases and on the grounds expressly provided for by law.

Step-by-step instructions for employers

The procedure for compensating an employer for road accident damage is quite complex, therefore, in order to be guaranteed compensation, it is necessary to strictly follow the letter of the law and document each stage of this process.

Was your driver involved in an accident? Make sure that you have the traffic police report in your hands, as well as written detailed explanations from the officer about the incident.
If your vehicle has been damaged, be sure to carry out an assessment of vehicle repairs after an accident - this is a requirement of Article 247 of the Labor Code of the Russian Federation. Request from the injured party documents confirming the amount of damage.
Collecting damages from an employee is your right, not your obligation. If the insurance covered the damage, great: that’s the end of your worries. If there is an uncovered difference, then you have the right to recover the remaining amount from the employee.
If the outstanding balance does not exceed the average salary of the person at fault, then the withholding is carried out on the basis of an order from the employer, which is issued no later than a month from the date the amount of such damage is established.
Has a decision been made to hold the employee administratively liable? You can recover losses from him in full (excluding insurance payments). If the driver does not agree to repay the amount voluntarily, file a claim with the court by way of recourse.

The amount of monthly deductions cannot exceed 20% of the employee’s earnings (Article 138 of the Labor Code of the Russian Federation).

Cooperation

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Is it possible to recover damages to the organization from the driver?

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The driver violated the law, but should the employer be responsible?

If your driver is involved in an accident and thereby causes harm, your organization will compensate for it. It should be borne in mind that the legislation provides for a number of features that arise when recovering the amount of damage from an employee who has committed an accident by way of recourse.

Translation agency TRANSLEX: accurate legal translation and linguistic support for business »»

In the modern business world, characterized by mobility and mobility, it is difficult to imagine an organization that would not use company cars in its activities. As you know, the use of vehicles is an activity that creates an increased danger to others. In addition to the legal aspects of this provision, there is also a practical point: a car, as a vehicle, has dangerous properties that are not amenable to complete human control during its operation. Due to these properties, emergency situations are not uncommon when a person driving this vehicle, for various reasons, cannot control it and a traffic accident occurs. We will talk about a traffic accident committed by an employee in the performance of his official duties using a company car. So, your organization has a company car. Two caveats should be made immediately. Firstly, in the issue under consideration, an organization means legal entities of all organizational and legal forms, as well as entrepreneurs without forming a legal entity. Secondly, in the context of the problem under consideration, it does not matter whether the organization’s company car is owned or leased.

Damage caused as a result of a traffic accident.

In most cases, a road traffic accident entails damage to the person or property of a citizen involved in an accident, or to the property of a legal entity. According to the general rule established by Art. 1064 of the Civil Code of the Russian Federation, harm caused to the person or property of a citizen, as well as harm caused to the property of a legal entity, is subject to compensation in full by the person who caused the harm. At the same time, the already mentioned increased danger of a car, which in a moving state is capable of causing harm even without the fault of the driver, also affects the conditions for the emergence of liability. According to general rules, for liability to arise for damage caused, four conditions must be present simultaneously: the presence of harm; illegality of conduct; a causal relationship between the harm that occurred and the unlawful behavior; the fault of the person who caused the harm. For damage caused during the operation of the car, liability occurs without fault (except for cases where the damage arose as a result of force majeure or the intent of the victim). No-fault liability means that the owner of the vehicle will be liable regardless of whether he violated the traffic rules or not. The liability of a driver involved in an accident without fault is established by Art. 1079 of the Civil Code of the Russian Federation and concerns cases where harm was caused by one source of increased danger (for example, a car and a citizen were involved in an accident). If the accident occurred as a result of a collision between two or more vehicles, then the law (clause 3 of Article 1079 of the Civil Code of the Russian Federation) in this case establishes two options for liability. First, if, as a result of a collision of vehicles, harm is caused to third parties (for example, pedestrians or passengers), then the owners of these vehicles are jointly and severally liable without fault. Damage caused to the owners of colliding vehicles is compensated on a general basis, that is, taking into account all four conditions for the occurrence of liability, including the fault of the participants. In this case, as a review of judicial practice shows, the harm is compensated by the one who is at fault. If the owners of both vehicles are at fault, then the damage is compensated in proportion to the degree of guilt of each owner. But when both vehicle owners are not at fault, the issue can be resolved in two ways. There is such a position that in this case none of the owners has the right to compensation, and there is another - the damage should be distributed between them in equal shares. It is clear that in addition to the general civil legal conditions for the distribution of responsibility for road accidents, there are also technical conditions on the basis of which the traffic police authorities will establish the presence of violations of traffic rules and the persons who violated them. All this speaks to the great importance of the presence of a representative of the organization whose driver was involved in an accident at the very initial stages of consideration of the incident by the traffic police. In this case, the organization will be able to be more prepared to protect its rights, because the organization will be obliged to compensate for the damage caused by the company car.

An employee driving a company car is involved in an accident.

The Civil Code of the Russian Federation (Article 1068 of the Civil Code of the Russian Federation) establishes that a legal entity or citizen compensates for damage caused by its employee in the performance of labor (official, official) duties. Thus, if your employee is involved in an accident while driving a company car, issues of compensation for damage will be dealt with by the organization, and in court proceedings the organization will be the defendant in the case of compensation for damage caused as a result of this accident. Of course, the driver will not be left without attention; he will be involved as a third party on the defendant’s side, but the organization will have to compensate for the damage. At the same time, it is not at all necessary that the driver driving your company car work only on the basis of an employment contract. In relation to the rules established by Art. 1068 of the Civil Code of the Russian Federation, employees are recognized as both citizens performing work on the basis of an employment contract, and citizens performing work under a civil contract, if at the same time they acted or were supposed to act on the instructions of a legal entity or citizen. Thus, for an organization to become liable for the actions of its employee, two additional conditions are necessary: the employee must be in labor or civil law relations with the organization, and when an accident occurs, he must be in the performance of his official duties (responsibilities under a civil contract). It should be taken into account that if the employee was not in the performance of his duties, but at the time of the accident he was carrying out an order from the administration (the owner of the car) in a company car, then in this case it is considered that he was in the performance of work duties.

The current legislation is on the employer's side.

Yes, if your driver is involved in an accident and thereby causes harm, your organization will compensate for it. Of course, these expenses will cause losses to the organization. But this does not mean that they cannot be reimbursed. The law gives the right to a person who has compensated for damage caused by another person to demand that this person reimburse the compensation paid (the right of recourse). This right is enshrined in Art. 1081 of the Civil Code of the Russian Federation. In this case, the demand is made in the amount of the compensation paid, but there is a reservation in case the law establishes a different amount. It should be borne in mind that if the employee does not agree to voluntarily compensate for the amount of damage, then it can only be recovered in court. In this case, it would be illegal to withhold this amount from his earnings or remuneration. The legislation provides for a number of features that arise when recovering the amount of damage from an employee who committed an accident by way of recourse. Knowledge of these features will allow participants in such a dispute to protect their rights. So, it should be remembered that: If the driver involved in an accident works in an organization on the basis of an employment contract, then when collecting the amount of damage from him, the court will be guided by the norms of the Labor Code of the Russian Federation governing the financial liability of the parties to the employment contract (Section XI). If the relationship with the driver is built on the basis of a civil contract, then it is assumed that in this case the issue of compensation for damage by way of recourse will be regulated by the norms of the Civil Code of the Russian Federation and the terms of the contract. To be able to recover the amount of damage from the driver by way of recourse, the presence of his fault in the accident is mandatory. This follows from the content of Art. 233 of the Labor Code of the Russian Federation in relation to employees under an employment contract and Art. 1064 of the Civil Code of the Russian Federation in relation to employees under a civil contract. If the driver works for an organization on the basis of an employment contract, then attention should be paid to determining the amount of damage. The fact is that according to the general rule established by Art. 241 of the Labor Code of the Russian Federation for damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. This rule was enshrined in the Labor Code of the Russian Federation, which has now lost its force. But both before and now, labor legislation also provides for cases of financial liability of an employee in the full amount of damage caused to the organization. At the same time, the new Labor Code of the Russian Federation contains a provision that fundamentally changes the situation regarding the recovery of the amount of damage caused from the employee. Thus, Article 243 of the Labor Code of the Russian Federation, which establishes cases of full financial liability in comparison with Article 121 of the Labor Code of the Russian Federation, is supplemented by paragraph 6. The content of this paragraph is that financial liability in the full amount of damage caused is assigned to the employee in the event of damage caused as a result of administrative misdemeanor, if established by the relevant government agency. That is, previously it was possible to recover from the driver the full amount of damage caused by an accident only when his actions in connection with the accident contained elements of a crime. In other cases, damages could only be recovered from the driver in the amount of average monthly earnings by way of recourse. Now, taking into account the provision of clause 6 of Article 243 of the Labor Code of the Russian Federation, the organization has the opportunity to recover damages in full from its driver who is guilty of an accident by way of recourse even when his actions do not constitute a crime. To do this, it is necessary that, upon the fact of a traffic accident, a case of an administrative offense in the field of road traffic be considered by the relevant government body (depending on the violation - a court, a magistrate or internal affairs bodies) and, based on the result of the consideration, a decision is made against the guilty driver about an administrative offense. It is also necessary that the damage caused by the employee (driver) is actually compensated by the organization and there is a document confirming this compensation. So, having in your hands a court decision obliging the organization to compensate for the damage caused by its driver, a document confirming compensation for damage, a resolution on an administrative offense against the driver, you can count on the fact that the court decision to recover the damage caused from the employee in full will be in your favor. At the same time, be prepared that in court you will have to convincingly prove your position, because the law states: “each party must prove the circumstances to which it refers as the basis for its claims and objections.”