Judicial practice on MTPL insurance disputes

In 2012, Russia introduced a program of compulsory civil liability insurance for car owners - OSAGO. At the same time, policyholders and insurers had many questions that were referred to the court for consideration. Thus, judicial practice in cases of compulsory motor liability insurance is one of the main (in addition to regulatory legal acts) sources of rules in the event of controversial situations between the policyholder and the insurance company. In this article we will look at cases from judicial practice on compulsory motor liability insurance for the period 2014 - 2016.

Precedent No. 1 – “Restoring the presentation of a car”

According to the Law “On Compulsory Motor Liability Insurance”, the insurance company of the person responsible for the accident must reimburse the costs of repairing the vehicle and expenses incurred in order to restore the lost marketability of the car. The basis is the fact that the loss of marketable appearance is real damage caused as a result of a transport accident (Resolution of the Plenum of the Armed Forces of the Russian Federation).

Resolution of the Plenum of the Armed Forces of the Russian Federation dated January 29, 2015 No. 2 regulates the application by arbitration courts of the legislation on compulsory civil liability insurance of vehicle owners.

The main provision is the establishment of a procedure for considering cases of compensation of insurance payments in accordance with the MTPL policy. The Resolution addresses issues of limitation periods, parties to the dispute and methods of payment.

Decision

When making a decision, the judges of the Supreme Court of the Russian Federation were guided by the following regulatory legal acts of federal significance:

Federal Law No. 40 of 2002, regulating the procedure for compulsory insurance of civil liability of vehicle owners;
Chapter 28 of the Civil Code of the Russian Federation – “Insurance”;
Law of the Russian Federation of 1992 “On the Protection of Consumer Rights”.

In accordance with them, a participant in an accident has the right to independently choose the method of compensation for the damage caused - receiving payment in cash or restoring the vehicle, including restoring the car’s marketable appearance.

The judges of the Supreme Court of the Russian Federation note that Federal Law No. 40 provides for the obligation of compensation for damage by the insurance company caused as a result of damage to cargo or other property belonging to the victim as a result of an accident.

Precedent No. 2 – “Providing the insurer with the opportunity to conduct an inspection and examination”

A participant in an accident who was injured as a result of an accident due to the fault of a third party must provide the insurance company with evidence of the damage received. His refusal to conduct an examination is grounds for non-payment of the insurance amount. The decision was made by the Arbitration Court hearing the case in the North-Western District.

As a result of an accident involving a car whose driver has an MTPL policy, a gate and fence owned by a legal entity were damaged. The traffic police report states that the incident occurred due to the fault of the driver of the vehicle who violated the Traffic Rules of the Russian Federation.

The legal entity filed a claim with the insurer demanding compensation for damage. A separate paragraph in the application indicated that a full set of documents would be provided after the assessment. For these purposes, the company used the services of an independent expert organization.

As a result, an Assessment Report was drawn up confirming the damage. Having repeatedly sent an application to the insurer with an attached report, the legal entity again received a refusal, which served as the basis for applying to the district arbitration court.

The court of first instance refused to satisfy the demands set out in the claim of the injured legal entity. Consideration of the appeal did not lead to a change in the decision - the claim was not satisfied.

Resolution of the Arbitration Court in the North-Western District of the Russian Federation No. 07-4986 of 2015 confirms that the decisions of lower authorities are fully justified and do not contradict current legislation.

This was due to the fact that the plaintiff did not provide the defendant, represented by the insurance company, with the damaged property. This confirmed the right of the insured to demand for assessment and examination of the property that was damaged.

The plaintiff during the legal proceedings referred to Art. 1064 of the Civil Code of the Russian Federation, according to which the harm caused must be compensated by the person responsible for the incident. At the same time, Art. 931 indicates that the injured person is compensated for the damage caused within the established insurance amount.

The fundamental legal acts when considering the case were not individual articles of the Civil Code of the Russian Federation, but Federal Law No. 40 of 2002, according to which the injured person is obliged to notify the damage caused as soon as possible. Moreover, the victim must provide the opportunity for an examination and examination to clarify all the circumstances of the case and determine the amount of the insurance payment. Otherwise, the insurer has the right to refuse compensation for the damage caused.

Precedent No. 3 – “Insurance payments for joint and several liability”

When considering the case in the Constitutional Court of the Russian Federation, it was decided that the norm of Federal Law No. 40 does not contradict constitutional requirements. Consequently, the limit on the amount of insurance payment under the MTPL policy is 160,000 rubles. (as of 2015) is legal.

An individual sent a complaint to the Constitutional Court of the Russian Federation with a request to recognize clause 1 of Art. 7 Federal Law No. 40 of 2002 does not comply with the Constitution of the Russian Federation. This paragraph of the federal law under consideration establishes that the insurance amount paid to the injured person under the MTPL policy in terms of compensation for harm caused to health and life cannot be more than 160,000 rubles (as of 2015).

Decision

The drafter in the claim referred to the fact that the contested provision of the law limits the amount of insurance payment to the victim in case of joint liability of several car owners simultaneously for harm to health and life as a result of an accident.

Such a restriction, in the opinion of the applicant, does not provide the opportunity for each injured person to fully use the amount of insurance coverage established by Federal Law No. 40. When considering the complaint, the Constitutional Court of the Russian Federation issued Determination No. 1516 of June 23, 2015, refuting the citizen’s conclusions.

The judges in their decision referred to the fact that Part 1 of Art. 7 Federal Law No. 40 clearly regulates the amount of the insured amount within which the insurance company makes payments. Every person injured as a result of a traffic accident has the right to receive such payment. This provision of law protects injured parties and imposes obligations on the insurer, so it cannot be declared unconstitutional.

Case No. 4 – “Damage to a vehicle by foreign objects”

Damage caused to a vehicle during an accident must be compensated by the insurance company. In this case, the source of damage does not matter, since the fault if an incident occurs in the absence of third parties to the accident lies directly with the owner of the compulsory motor liability insurance policy. This decision was made by the Arbitration Court for the North-Western District of the Russian Federation.

Due to the release of gravel while driving from under the wheels of a car, a traffic accident occurred. The injured vehicle owner appealed to the insurance company with a demand for reimbursement of the costs of restoring the car and compensation for the damage caused.

The insurer refused the claim, citing one of the clauses of the insurance contract, and the fact that an accident resulting from the release of gravel is not an insured event. An individual filed a claim in court.

Decision

When considering the case by the court of first instance, the claim of the vehicle owner was satisfied. The insurance company filed a complaint and sent it to the appellate authority for consideration, where it was upheld.

An individual injured in an accident filed a complaint with the cassation office. The response to it was the Arbitration Court Resolution No. 07-3734 of 2015, in accordance with which the decision made by the trial court was restored.

The judges referred to Art. 309 and art. 310 of the Civil Code of the Russian Federation, according to which all obligations must be fulfilled by the parties on the basis of the requirements of the law and other regulatory legal acts. You cannot refuse to fulfill obligations unilaterally (exceptions are on grounds established by law).

Art. 929 of the Civil Code of the Russian Federation provides that the terms of the insurance contract establish the need to compensate the injured party for damage within the limits of the insured amount. As for the clause of the Insurance Rules referred to by the defendant, it includes the possibility of damage to the vehicle as a result of foreign objects (in relation to the case under consideration - gravel).

Based on the above, the cassation court satisfied the plaintiff’s request. The release of gravel from under the wheels of another car was recognized as an insured event, and the insurer was obliged to pay the insured amount.

Precedent No. 5 – “Damage assessment using a unified method”

Road traffic accidents that occurred after the unified methodology for calculating insurance payments under the MTPL policy came into force are subject to the provisions of the program. If at the time of the accident, clause 3 of Art. 12.1 of Federal Law No. 40 has not entered into force, then when compensating for damage, the unified calculation methodology is not taken into account. This decision was made by the Arbitration Court for the Moscow District.

An individual registered as an individual entrepreneur filed a claim with the Arbitration Court with a request to recover 161,000 rubles. from the insurance company Rosgosstrakh. The basis for the penalty was an accident on June 25, 2014. The liability of the at-fault driver was insured in accordance with the MTPL program.

The insurer paid the injured party an insurance payment in the amount of 78,000 rubles. According to the insurance company, this amount was enough to eliminate the mechanical damage caused to the Volkswagen Polo car.

The owner of the vehicle turned to independent experts to evaluate the damaged vehicle. An independent expert assessed the damage at RUB 332,000. Based on this, the individual entrepreneur filed a lawsuit.

Judgment

The court of first instance and the appellate instance left the claim of the citizen represented by the individual entrepreneur without satisfaction. He did not agree with these decisions, which was the reason for his appeal to the Arbitration Court for the Moscow Region. The response to the complaint was Resolution No. 41-3081 of 2015, which overturned the decisions of the two previous courts.

The reason was that damage caused to vehicles as a result of an accident has been assessed in accordance with a unified methodology since October 17, 2014. The insured event was recorded on June 15, 2015, therefore the courts’ reference to clause 3 of Art. 12.1 of Federal Law No. 40 was found to be erroneous.

Precedent No. 6 – “Collection of penalties from an insurance company”

A reduction in the amount of the penalty should not serve as a reason for the unmotivated release of the insurance company (in this case, the debtor) from liability for delay in fulfilling the obligations imposed by the contract. This Determination was made by the Supreme Court of the Russian Federation in case 78-GK15-11 of 2015.

The plaintiff went to court because the insurance company refused to transfer, in addition to the insured amount, the accrued penalty. When putting forward a demand, he referred to Art. 12 of the Law “On Compulsory Motor Liability Insurance”, according to which the insurance company is obliged to pay a penalty for each day of delay in payment (1 day = 1% of the amount of the insurance payment).

The defendant, as an objection, argued that the penalty is disproportionate to the consequences of violating the stipulated obligation, referring to Art. 333 Civil Code of the Russian Federation.

Judgment

When considering the case, the court relied on the fact that the amount of the penalty can be reduced only if the defendant submits a corresponding application. It must indicate the motives that can convince the court to reduce the amount of the penalty.

The defendant, represented by the insurance company, did not submit a statement and evidence confirming its validity. Based on this, a decision was made to satisfy the plaintiff’s claim - the insurer is obliged to pay him the accrued penalty.

Judicial practice on compulsory motor liability insurance

Civil liability insurance for vehicle owners has already become a part of our lives. The legislation regulates this type of insurance services in some detail. Meanwhile, the number of controversial situations is quite large. Most of them are resolved only by the judiciary. Moreover, court decisions are not always unambiguous, which creates the need to study judicial practice on compulsory motor insurance in each specific case. Numerous reviews of decisions prepared by courts at all levels can help with this. Until recently, courts almost always supported the interests of the insured when considering disputes regarding liability insurance of car owners. This gave rise to a wave of dissatisfaction among insurers, who pointed to a biased attitude towards them, citing, among other things, judicial reviews. Indeed, in some situations, the court did not fully study the materials on the case and “automatically” satisfied the demands of the insured, which significantly undermined the authority of the judiciary. Today, this practice is gradually beginning to be eradicated, since on January 29, 2015, the Plenum of the Supreme Court of the Russian Federation adopted Resolution No. 2 “On the application by courts of legislation on compulsory liability insurance of vehicle owners.” This document is intended to bring uniformity to the activities of courts when considering cases under MTPL agreements, in particular, it clarifies the procedural features of the consideration of such cases, clarifies the issues of concluding and executing these agreements, and defines liability for violation of its terms.

Procedural issues in the consideration of disputes under compulsory motor liability insurance

This document once again clarified that disputes under motor third party liability insurance contracts are considered both by courts of general jurisdiction and by arbitration courts. The first - if the car owner is an individual, and the vehicle is used by him exclusively for his own needs. The second is if the applicant is a legal entity or individual entrepreneur.

Since September 1, 2014, a mandatory pre-trial settlement procedure has been in effect for disputes arising from legal relations under MTPL, that is, before going to court, the car owner must send a claim to the insurer in which he can express his disagreement with the decision made by the insurer or require him to perform certain actions. In case of refusal to satisfy the stated requirements, the policyholder has the right to go to court.

Advice: the pre-trial procedure for resolving disputes under compulsory motor liability insurance is mandatory, therefore, when filing a claim in court, you must attach a copy of the previously submitted claim. Otherwise, consideration of the claim will be denied.

Also, the resolution of the Plenum of the RF Armed Forces clarified that insurance companies do not have the right to change the terms of the motor third party liability insurance contract, since this contract is public and its content is strictly regulated by the federal law on compulsory motor liability insurance. Also, insurers cannot refuse to conclude a motor vehicle liability insurance contract. This is indicated both by the requirements of the law on compulsory motor liability insurance and Art. 445 of the Civil Code of the Russian Federation.

We also note that when going to court, a car owner whose rights have been violated has the right to compensate not only for actual damage, but also to demand compensation for moral damage in an accident. In this case, he needs to prove what moral and physical suffering he suffered as a result of the incident. From reviews of judicial practice it follows that in most cases, demands for compensation for moral damage are satisfied by the court, but not in full.

Disputes regarding the amount of insurance compensation

As practice shows, insurance companies do not always objectively assess the damage received as a result of an accident. It is applications for underestimated insurance payments that are most often considered by the courts.

Insurance companies resort to various tricks in order to reduce the amount of insurance payment. And the car owner can defend his rights in court. Judicial practice for the collection of insurance compensation develops in such a way that the plaintiff must prove that the assessment of damage by the insurance company was performed poorly and the amount of the assigned insurance amount is insufficient to cover the damage. If there was sufficient evidence, the plaintiff's amount of compensation was increased by the court to that required for a full repair of the car. As a rule, in such a situation, the car owner needs to provide the court with an expert opinion on the cost of repair work. In some particularly controversial situations, the court may itself order an examination and, based on its results, make a final decision.

Often, insurers only indemnify for damage directly related to the costs of restoring the vehicle. However, the law on compulsory motor liability insurance and the resolution of the plenum of the Armed Forces of the Russian Federation provide for reimbursement of all expenses for an insured event. For example, tow truck services, storage of an emergency vehicle, etc. If compensation for such expenses is refused, it also makes sense to go to court with all the necessary documents attached. It is worth noting that these expenses cannot include lost profits in the event of an accident. To obtain compensation, the car owner must file a lawsuit against the person who caused the accident.

Lost commodity value is subject to compensation under compulsory motor liability insurance, which is reimbursed in the amount of its reduction as a result of damage. This compensation is the most controversial, since insurers always base it on the minimum cost of the car, and therefore the vehicle is either not reimbursed, or the reimbursement is insignificant. Judicial practice provides for a more objective approach to determining the TC. In particular, courts use not only the average market value, but also a detailed analysis of the possible cost of a particular car. For example, changing the appearance of a car by adding decorative elements: alloy wheels, body kits, spoilers can be taken into account.

Sometimes insurers underestimate the amount of compensation and, as an alternative, offer to carry out restoration repairs at a car repair shop with which they have a contractual relationship. It should be remembered here that the choice of compensation method is always up to the policyholder. Thus, the insurance company R. offered citizen Z. to repair the car damaged in an accident at the car service center G. The specialists of the said car service center drew up a preliminary estimate in the amount of 27,600 rubles. But citizen Z. refused repairs at G.’s car service center and demanded monetary compensation; R.’s insurance company, referring to the appraiser’s conclusion, made a payment in the amount of 14,100 rubles. At the same time, in an oral conversation, an employee of the insurance company noted that it was necessary to contact the recommended car service. Z. had the car restored at another car service center, the amount of repairs was 34,400 rubles. After this, the citizen went to court demanding that the insurance company reimburse his repair costs in the amount of 20,300 rubles. As a result of an independent examination ordered by the court, this amount was confirmed. The court decided to satisfy the claim.

If the car is completely lost as a result of an accident, the policyholder has the right to receive the maximum amount of payment under compulsory motor liability insurance - 400 thousand rubles. In this case, it is he who bears the responsibility to prove that the car cannot be restored. As a rule, courts understand complete loss as absolute loss, impossibility or impracticality of carrying out repair work.

Refusal of insurance compensation

Situations often occur when insurance companies completely refuse to pay compensation under compulsory motor liability insurance. The insurance company may refuse to pay if:

The complete set of documents is not provided, or the documents contain errors. For example, when registering an accident, the traffic police inspector incorrectly indicated the insurance policy number.
The second participant in the accident has a fake insurance policy. In this case, you must apply for compensation for damage directly to the culprit of the accident, here you also need to go to court, but these legal relations already go beyond the scope of auto liability insurance. In this case, the insurer has the responsibility to prove that the policy is fake.
The insurance policy has expired. If the car owner did not take care of extending the insurance on time, then he must compensate for the damage in the accident himself. But recently there have been cases of fraud on the part of insurance agents: the client pays for a policy for a year, and the agent transfers data and money as if for insurance for a short period, for example, twenty days. When going to court, the car owner can prove that he purchased a policy for a year by presenting the policy itself and a receipt for payment of the insurance premium for the year. For the court, this is quite enough to recover insurance compensation under a compulsory insurance contract, since the insurance company is responsible for the unlawful actions of its employees.
Invalidity of the policy due to its loss by the insurer. Some insurance companies refuse to pay, citing the fact that the presented policy was lost by the insurance agent. In this case, if the insurer does not document the fact of loss of the policy, then it is obliged to make a payment. For the car owner, it is enough only to present a receipt for payment of the insurance premium certified by the insurer’s seal.
Self-repair of a damaged vehicle prior to inspection by an insurance company appraiser. In such a situation, you can receive an insurance payment only after going to court, the outcome of which largely depends on the circumstances under which the repairs were carried out. Firstly, if the car owner himself repaired the car and then presented it to the appraiser with documents for repair attached, then the burden of proving the damage received in the accident falls on him. As practice shows, the court will make a positive decision only if there is sufficient evidence of damage to the car and subsequent repairs. Secondly, the repairs were carried out after contacting the insurer, but the insurer did not assess the damage within the time limits established by law. In such a situation, the court is clearly on the side of the car owner and almost always satisfies the claims in full.
Link to the results of the traceological examination. The insurer, with the help of a specialist, establishes the circumstances of the accident in order to exclude fraudulent actions on the part of the insured. To refuse payment, it is enough for him to obtain an expert’s opinion that the circumstances of the accident cannot be established, for example, there is no opportunity to inspect the cars of other participants in the incident. Judicial practice in challenging refusals to pay on this basis is entirely on the side of the policyholder, since most such examinations are easily appealed.
The vehicle was not damaged as a result of movement. For example, the insurance company refused to pay compensation for damage, citing the fact that citizen K.’s car was parked on the lawn, where it was hit by a truck belonging to G.. K. filed a lawsuit demanding that the refusal of insurance payment be declared illegal and oblige to pay insurance compensation in the amount of 63,400 rubles. The court, citing documents from the traffic police confirming the fact of the traffic accident, satisfied the claims in full. Moreover, in this situation, it does not matter how this or that car was damaged. For example, as a result of a collision, a tree fell on a car, this fact is documented as an accident, therefore, there should be compensation under compulsory motor liability insurance.

These are the main reasons for refusal of insurance payment under compulsory motor liability insurance, but in each specific case other grounds for refusal are also possible. Current law enforcement practice shows that most refusals to pay do not have serious justifications, therefore, with competent participation in the judicial process, challenging such refusals does not seem problematic.

Advice: in case of refusal of insurance payment, the claim must be sent to the insurer immediately after receiving the decision of the insurance company. This will significantly reduce the time to resolve the dispute.

Civil liability insurance for vehicle owners is an effective means of quickly regulating most road conflicts. However, the stated goals can only be achieved with strict compliance with the current legislation by all participants in insurance legal relations. Insurance companies do not always act lawfully, and even fines from supervisory authorities do not eliminate violations in their work. Protecting your rights in these legal relations in the courts is justified and allows you to achieve the goal of compulsory motor liability insurance stated by the legislator. The accumulated judicial practice on motor third party liability insurance contracts contains examples of the application of legislation in this area in a variety of situations, which makes it possible to quickly resolve the most confusing issue regarding compulsory motor liability insurance.

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.

The Supreme Court summarized judicial practice in cases of compulsory motor liability insurance

On June 22, the Supreme Court (SC) approved a review of judicial practice on disputes related to compulsory motor liability insurance. The Supreme Court summarized the cases considered by courts of general jurisdiction and arbitration courts.

The 48-page document contains 5 chapters:

Procedural issues;
Insurance contract;
Subrogation;
Insurance payment;
Insurer's liability.

Most of the cases are presented in the “insurance payment” section. Disputes about the collection of insurance payments, about challenging the amount of the amount paid, about the collection of sanctions for failure to comply with the deadline for sending a reasoned refusal to pay, about the collection of a penalty for violating the payment deadline, about the collection of a fine for failure to voluntarily fulfill the demands of the victim form the main court cases.

For example, the Supreme Court of the Russian Federation clarified that the car owner has the right to recover the costs of conducting an independent examination of the vehicle from the insurer if he did not conduct the necessary research.

Situation (based on the practice of the Arbitration Court of the Moscow District, the Arbitration Court of the Ural District, the Lipetsk Regional Court):

Individual entrepreneur X. filed a claim against the insurance company for compensation in the form of the cost of restoration of the vehicle and the cost of assessing the damage.

The court of first instance partially satisfied the claims. The defendant had to reimburse the amount of the insurance indemnity. The court refused to reimburse the costs of conducting an independent examination. The argument is that these expenses are included in the insurance indemnity limit, and accordingly, they cannot be recovered. The appeal upheld the decision.

But the cassation court overturned the judicial acts of the lower instances and satisfied the requirements in full.

Based on the provisions of paragraphs 10-12 of Article 12 of the Law on Compulsory Motor Liability Insurance, in the event of damage to a vehicle, the victim, who intends to exercise his right to insurance payment, is obliged to submit an application for insurance payment and present the damaged vehicle for inspection, and the insurer - to inspect it, and in if necessary, organize an independent examination.

The plaintiff sent a telegram to the insurance company requesting an inspection of the damaged car and compensation for losses. The insurer did not conduct an independent examination within the required period and did not pay the insurance compensation.

The plaintiff independently entered into an agreement to conduct an independent examination. In accordance with paragraph two of paragraph 13 of Article 12 of the Law on Compulsory Motor Liability Insurance: if the insurer did not inspect the damaged property or its remains and (or) did not organize an independent technical examination, an independent examination (assessment) of the damaged property or its remains within the period established by law, the victim has the right to apply independently for technical expertise or examination (assessment) . Which is exactly what the plaintiff did.

In this case, the results of an independent technical examination or independent examination (assessment) independently organized by the victim are accepted by the insurer to determine the amount of the insurance payment.

Article 12 of the Law on Compulsory Motor Liability Insurance, which establishes the amount and procedure for reimbursement of expenses when damage is caused to the property of the victim, indicates that the cost of an independent examination (assessment), on the basis of which the insurance payment was made, is included in the damages subject to compensation by the insurer under a compulsory insurance contract ( paragraph 5 of article 12 of the Law on Compulsory Motor Liability Insurance).

At the same time, the costs of conducting an examination are not insurance compensation , since they must be incurred when the insurer carries out ordinary business activities.

The plaintiff had to bear the costs of the examination due to the fact that the defendant did not fulfill his duty. Consequently, the cost of an independent examination (assessment), on the basis of which an insurance payment should be made, is included in the losses subject to compensation by the insurer , and not in the insurance payment .

According to paragraph 1 of Article 393 of the Civil Code of the Russian Federation, the debtor is obliged to compensate the creditor for losses caused by non-fulfillment or improper fulfillment of obligations.

By virtue of Article 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount.

See the text of the review of judicial practice of the RF Armed Forces in cases related to compulsory motor liability insurance.

The Supreme Court sided with the owners of OSAGO. Review of five cases

What is allowed to policyholders from the point of view of the highest court

Moscow. November 27. INTERFAX.RU - At the slightest opportunity, insurers continue to evade payments under compulsory motor liability insurance policies, and courts cannot always recognize abuses, evidence from a new series of “insurance” litigation that has reached the Supreme Court (SC) of the Russian Federation. Experts note that the cassation authority remains in the position of protecting the interests of the weaker party—the policyholder—and partly neutralizes the influence of lobbyists on legislation. Industry experts, in turn, fear that the Supreme Court’s decisions open up new opportunities for abuse by “unscrupulous policyholders.”

Throughout November, the Supreme Court published a series of cassation rulings in cases in which car owners challenged insurance companies’ refusals to pay compensation under compulsory motor liability insurance. What these cases have in common is that in all cases the district courts satisfied the claims against the insurers, after which the decisions were overturned on appeal. The Supreme Court examined the errors of the courts of second instance and returned all five cases to them for review.

The insurer cannot dictate the terms of the inspection

The first of these five cases concerns situations where the owner has the right not to deliver the damaged car to the insurance company and order an assessment of the damage himself.

This is a pressing problem, experts say. Fraudsters often invite an insurer’s representative for an inspection to a populated area located hundreds of kilometers from the regional center, knowing in advance that no one will go there, Deputy General Director of IC MAX Viktor Alekseev told Interfax.

In the case considered by the Supreme Court, the owner of a Mitsubishi Pajero, whose glass was broken as a result of the accident, did not go to the office of the insurance company, despite two calls, ignored the invitation to come to coordinate an inspection, sent after sending the claim and conducting an examination. Rosgosstrakh did not pay on this basis.

This is unlawful, the Supreme Court judges decided. If the car is so damaged that it cannot be used (even if the glass is simply broken), then the insurer must organize an inspection at the victim’s premises within five days. The insurance company should not require the delivery of an emergency vehicle by tow truck, introducing additional expenses to its owner. Otherwise, in case of any damage to the car, the victim would be recognized as capable of transporting it to the insurer, which is contrary to the law on compulsory motor liability insurance, the Supreme Court noted in its ruling. And since the company did not bother to organize an examination, the victim has the right to independently apply for an examination, and the insurer will have to accept its results, the judges concluded.

Representatives of the insurance industry fear that this decision will create serious difficulties for them. “The victim was invited twice for an inspection, after which he was asked to come to agree on the date, time and place of the inspection - these are completely reasonable actions,” Andrey Makletsov, head of the loss settlement methodology department of the Russian Union of Auto Insurers (RUA), told Interfax. Now the auto lawyer could refer to the decision of the Supreme Court, pointing out that since the court returned the case, then the victim, who ignored the insurer’s offer, is right. “We cannot assess this decision as favorable for insurers,” he noted.

The lost right to examination has a few more months

The second case is also “Rosgosstrakhov’s”. The company refused to pay insurance compensation to the victim when he presented the results of an independently ordered examination of the damage. Rosgosstrakh considered that the owner of the car no longer had such a right, since on July 4, 2016, a ban on such actions came into force (Article 12 of the law on compulsory motor liability insurance), and the accident occurred on July 22, 2016.

This is the wrong approach, the Supreme Court pointed out. In such cases, the courts should pay attention not to the date of the accident, but to the time the contract was concluded, the cassation court explained. And this paper was signed before the amendment to Article 12 of the law on compulsory motor liability insurance.

Similar situations arise during periods of changes in relevant legislation, when both the insurer and the victim do not always understand which provisions of the law on compulsory motor liability insurance work depending on the dates involved in the case (date of the accident, date of conclusion of the contract, date of entry into force of changes to the law about compulsory motor liability insurance), according to RSA.

At the same time, the Union welcomes the approach of the Armed Forces. “The court’s decision will make it difficult to find loopholes between dates for making unlawful claims,” said RSA’s Makletsov. There are, he says, also honest misconceptions and misunderstandings of innovations.

“It is necessary to abandon amendments to the law on compulsory motor liability insurance in the current realities in order to allow the practice to become established and to avoid unlawful claims based on different understandings of innovations,” concluded the RSA employee. However, Anna Polina-Stashevskaya, director of the judicial and legal department of the Soglasie Insurance Company, believes that the decision of the Supreme Court in this case is clearly based on the provisions of the current legislation.

Damage can be justified directly in court

The third dispute centered on the refusal of the insurance company VSK to pay due to an incomplete package of documents sent by the car owner. In the subsequent lawsuit, the amount of damage was established, and the insurer did not dispute it. And if so, then the right to insurance compensation cannot be deprived, the Supreme Court decided. Only additional demands can be rejected: compensation for moral damage, penalties, fines, etc., follows from the cassation ruling.

“The Supreme Court made a reasoned decision,” says Polina-Stashevskaya. Alekseev from IC MAX does not agree with her, for whom the decision of the Supreme Court raises serious concerns. In his opinion, the court must establish not only the damage, but also document the fact of the accident itself, otherwise all “drunk” collisions with obstacles can turn into accidents.

“There have been abuses in such situations before, and against the backdrop of the cancellation of the certificate of road accident from October 20 (the so-called form No. 154 - IF), you can get a surge in falsified road accidents,” he warns. “The actions of unscrupulous policyholders can be very unpleasant,” the RSA fears. Representatives of the RSA see this as the basis for conflicts and an increase in the number of appeals to the court.

The insurer cannot refuse to pay in lieu of a bankrupt

In the fourth case, the culprit of the accident was insured by the Oranta insurance company, whose license was revoked on April 29, 2015. The victim turned to his insurer, SK Megaruss-D, for compensation, but was refused.

This cannot be done, the Supreme Court pointed out. The insurance company of the victim in such cases must pay, and then can apply for compensation to the professional association of insurers, it follows from the cassation ruling.

This is already an established practice. If the person at fault for the accident was insured by an insurer, whose license was then revoked, we send an application for acceptance, and then submit a demand for payment to the RSA, says Alekseev. According to him, there was no case when RSA refused compensation.

According to the law on compulsory motor liability insurance, in this case the victim applies for direct compensation for losses, and the insurer then applies to the RSA. This practice has existed since 2014, when the corresponding amendments came into force, the union of insurers notes: “About two-thirds of all compensation payments are paid in this way - without any courts, simply according to the law.”

Power of attorney is also ownership

The fifth case arose due to the refusal of the Helios insurance company to compensate the car owner for damages from an accident in which two of his cars were involved. A Toyota car, where the owner was driving himself, hit a Mercedes, which was driven by proxy.

The courts of two instances supported the insurer on the grounds that the creditor and the debtor in the event of such an accident are one person, but the Supreme Court sent the case for a new trial. He pointed out that the driver of the Mercedes owned the car at the time of the accident and, therefore, was subject to all responsibilities associated with ownership. “When refusing to satisfy the claims, the courts did not indicate any rules by virtue of which the insurer would be exempt from paying insurance compensation in the event of damage to the property of another person by the person whose liability is insured,” the Supreme Court said in its ruling.

Work on mistakes

This series of cases is united by the fact that insurance companies committed obvious abuses, and lower courts were unable to recognize them, experts say. “The Supreme Court as a whole remains in the position of protecting the rights of the policyholder as the weaker party,” lawyer Alexey Mikhalchik told Interfax.

Recently, under pressure from insurance industry lobbyists, legislation has been drifting not in favor of victims, he noted. “Requirements for policyholders are being tightened under the pretext of fighting fraudsters, but as a result we get wording of the law that de facto establishes a presumption of bad faith of the person applying for insurance payment,” Mikhalchik said.

But the practice of the Armed Forces, according to him, partly neutralizes this trend. “These judicial acts absolutely correctly explain that the fundamental circumstance for the insurer is the fact of damage, and not the accompanying formal circumstances,” Mikhalchik noted.

“These decisions of the Supreme Court stop the abuses committed by insurance companies,” said Tatyana Manakova, head of the legal department of the Padva and Epstein law office. At the same time, according to her, they are almost entirely based on the explanations that the Supreme Court gave in Resolution No. 2 of January 29, 2015 “On the application by courts of the legislation on compulsory civil liability insurance of vehicle owners.” This means, Manakova summarizes, we should not expect changes in judicial practice.