Presumably your point being that she was not negligent. So how was he negligent ? What did he do or fail to do which caused or allowed this incident to occur ?
I have just picked up on this thread, the principal here is that the Clio was legally parked on a public road, the insurance applicable to the Clio at the time might expect to pay out for fire, theft and damage sustained to the vehicle while the owner was not in it's vicinity, i.e. criminal damage or the the situation where the owner/drive comes back to the car and finds that another vehicle has driven into it and left the seen without reporting the accident and without anyone witnessing the accident.
On the other hand the the insurance applicable to the unfortunate old gents car which was being driven at the time of the accident might expect to pay for damage sustained to the insured vehicle (assuming comp ins) and for any damage or injury sustained to a third party caused by the use of the vehicle i.e. a road traffic accident, this is not dependant on the driver having to be proven to be negligent.
Therefore in such circumstances it will be concidered that the vehicle being driven was at fault because the other vehicle (or its owner/driver was not in anyway in a position to contribute to the cause of the accident or to be able to take steps to avoid the accident.
It is similar to the situation where a tile falls from my roof, lands on your head and kills you. If it was blown off a roof that I can show was well cared for and could be reasonably believed to be in good condition, then tough.
Irrelevant analogy, are you trying to say that the owner of the head might be liable for the damage to the tile? Come on now!
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>>Therefore in such circumstances it will be concidered that the vehicle being driven was at fault because the other vehicle (or its owner/driver was not in anyway in a position to contribute to the cause of the accident or to be able to take steps to avoid the accident.
Absolute stuff and nonsense.
>>are you trying to say that the owner of the head might be liable for the damage to the tile?
No, are you ?
You might be better wandering back to a subject you do know about.
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This really seems totally unfair.
One minute she has a Renault Clio, and the next minute, through absolutely no fault of her own, she has no Renault Clio and a check for a paltry £500.
What's she supposed to do with that?
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You're right, it is totally unfair. It would have been worse had she not had comprehensive insurance.
But the functions of an excess are many;
-Reduce the cost of your premium
-Reduce the likelihood of you claiming
-Reduce the costs of your claims
-Provide a handy "fault" indicator.
However, do bear in mind my earlier comments; this is just the sort of thing that an insurer might pay out on, even if they don't strictly need to - its completely the wrong sort of publicity.
Putting the claim in, not making a stink and letting it follow its course may well result in a happy, albeit slow, ending.
Never blink first.
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>>Therefore in such circumstances it will be concidered that the vehicle being driven was at fault because the other vehicle or its owner/driver was not in anyway in a position to contribute to the cause of the accident or to be able to take steps to avoid the accident. Absolute stuff and nonsense.
No it is not nonsence, suggest you try to help out the originator of this thread instead of scare monger.
>>are you trying to say that the owner of the head might be liable for the damage to the tile? No, are you ?
Perhaps explain to us all the relevance of the analogy then?
You might be better wandering back to a subject you do know about.
Mark, that is verging on the offensive!
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Lets assume that you're being serious...
For me to be liable for something there generally has to be negligence. This is not absolutely true, but its close enough.
A statement such as "this is not dependant on the driver having to be proven to be negligent" is wrong and ridiculous.
So, if my car hits your car, then you need to prove I was negligent.
If a tile from my roof lands on your head, then you need to prove I was negligent.
If you look up the enormously diffiult subject of negligence, you'll see that it is quite complex but basically means I did do something which reasonably I should not have, or didn't do something that I reasonably should have. (I know, I know, but that's close enough). The mere fact that these things actually happened and that it absolutely was not your fault is insufficient. It has to have been my fault through negligence. (or intent, I guess, but that's slightly different.)
In the examples above that might be "drove with heart attack symptons" and "didn't maintain roof".
Without that, you get nothing.
And as for scare mongering, then you need to reread the thread. I explained the reasons not to push it, and that left to its own course it might get paid anyway; you advised, wrongly, that there was no issue. I know which advice I would prefer.
>>Mark, that is verging on the offensive!
Sorry I had assumed that there would have been something. I withdraw that comment. And this one. Or at least, bits of it. 8-)
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Lets assume that you're being serious...
Under the circumstance - we are discussing a fatal RTF - let's not even suggest that any one is being anything other than serious!
For me to be liable for something there generally has to be negligence. This is not absolutely true, but its close enough. So, if my car hits your car, then you need to prove I was negligent. If a tile from my roof lands on your head, then you need to prove I was negligent. Without that, you get nothing.
Let's use a more relevant analogy, it the the car in question was well maintained, serviced and MOT'd though had suffered a track rod failure, unusual I know, (instead of the driver suffering heart failure) thus causing it to swerve into the Clio then the insurance that covers the vehicle is liable for the ensuing damage irrespective of proving the driver negligent. Likewise if I were to bump up the back of you at the lights due to the brakes failing on my otherwise well maintained, serviced and MOT'd car it would be my insurer that would be liable for the damage to your vehicle even though I could rightly claim to not have been negligent, I applied the brakes though they did not work.
In such circumstances the insurer could yake the matter up with the manufacturer of the vehicle, or of the relevant parts of the vehicle, or with the individual/organisation that last attended to the relevant part of the vehicle however we are now going way of course.
I epxlained the reaons not to push it, and that left to its own course it might get paid anyway; you advised, wrongly, that there was no issue. I know which advice I would prefer.
To advise not to push it is fair, to suggest that the Clio owner should not expect to get damage, excess etc paid in full is wrong.
Sorry I had assumed that there would have been something. I withdraw that comment. And this one. Or at least, bits of it. 8-)
"I had assumed that there would have been something", ? you have lost me there!
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Cheddar, you are wrong but you're clearly not going to take my word for it. Lets leave it there.
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just a last point....
a fatal RTF
A typo when you meant RTA or an acronym I don't know ?
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just a last point.... >> a fatal RTF A typo when you meant RTA or an acronym I don't know ?
Yes, I meant RTA.
Regards.
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Cheddar, you are wrong but you're clearly not going to take my word for it. Lets leave it there.
I could simply say the same to you, Mark, you are wrong but you're clearly not going to take my word for it. Though doesn't a comment like that have so little meaning in this context?
I believe I am right and shall continue to do so until proven otherwise, if you do not wish to continue this so be it. Therefore I agree, lets leave it there.
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Please allow me to offer my tenpenneth on this.
I have dealt with an incident which had exactly the same set of unfortunate circumstances. Having been contacted by one of the 3rd parties I found that the insurer of the deceased refused to pay third party claims. I was equally amazed and as such I did a bit of digging incuding a posting on this site and got some good feedback Mark (Brazil). Sorry if I lost the thread somewhere but is this the same person as Mark (RLBS)?
Firstly Accidents are now termed as RTCs (collisions) - bonus point for correct terminoligy!
Secondly the Police DO NOT sort out insurance claims thats the job for the legal professfion! However they do perhaps facilitate exchange of information to assist claimants ie in this case obtain details of the deceased's insurance rather than everyone banging on the relatives door.
Now to the RTC. It was my finding that insurance firsly covers liability of individuals/companies etc. Secondly it covers the vehicles that are the subject of the policy. With me so far?
As has been discussed the whole process revolves around negligence or omitance. Does having a heart attack at the wheel fall within this category? Deepends on history of the patient and you try getting access to medical records to prove a case or prove that someone who was feeling unwell was negligent getting into a car.
The next thing is at what point does the liability of the driver cease? If you are dead then your policy is no longer valid! Now it is my submission that death can only be certified by a doctor wether at scene or on arrival at hospital. Time of death would therefore be AFTER the time of the collision.
Anyway the end result was that the 3rd parties had to bear their own costs or their insurance companies did. If I remember correctly they maintained 'no claims' status as there was a 'no fault' claim.
All quite bizzare but true. Certainly a get out clause for insurance companies and another reason why you should always have Fully Comp with protected NCB.
However I do feel that if someone where to take it all the way they may well have a good chance at court against the insurance company.
I would welcome any other input or experience as this is only how I found it to be.
Fullchat
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Chedder
<< Let's use a more relevant analogy, it the the car in question was well maintained, serviced and MOT'd though had suffered a track rod failure, unusual I know, (instead of the driver suffering heart failure) thus causing it to swerve into the Clio then the insurance that covers the vehicle is liable for the ensuing damage irrespective of proving the driver negligent. Likewise if I were to bump up the back of you at the lights due to the brakes failing on my otherwise well maintained, serviced and MOT'd car it would be my insurer that would be liable for the damage to your vehicle even though I could rightly claim to not have been negligent, I applied the brakes though they did not work. >>
If a car suffers a track rod end failure or the brakes fail then it is NOT well maintained in the eyes of the law. Absolute offence. The owner/driver is therefore held negligent. Evidence of recent servicing, MOT, manufacturing defect would be mitigation or further counter claims.
Fullchat
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In a nut shell the question is as follows:
Will an insurer only pay out on a third party claim if the insured is proven to be negligent and accordingly refuse to pay a third party claim if the insured is proven not to be negligent?
While the example given by Fullchat seems to suggest that this is the case I do not believe that the matter negligence on behalf of the insured is as cut-and-dried as this, to the contrary, in the event of the insured being negligent to the extent that they had not noticed that they had a illegal tyre and this tyre was proven to be a factor in the accident then the insurer may use the insured's negligence as a reason not to pay.
Regards.
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>>then the insurer may use the insured's negligence as a reason not to pay.
Cheddar, you need to quit; you've got the wrong end of this stick as well.
He could have absolutely have known the tyre was bald, they still couldn't avoid the third party payments.
The insured's negligence, indeed mind-boggling drunkeness, will not give the insurer a way to avoid payment. They must pay for the third party liability if their insured is negligent.
If they believe that their insured is in breach of their policy terms and conditions, e.g. banned from driving, unroadworthy vehicle, drunk etc; then they have the right of recovery in that they may sue their own insured party to recover their payments and expenses.
I have dealt with these incidents myself; the last involved a new, but faulty, tyre.
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Cheddar, you need to quit; you've got the wrong end of this stick as well.
I have not got the wrong end of any stick, at the very least I am trying to point out that there is some contradictiotion, if not hypocracy, going on here. If you think you know it all Mark then answer the question:
"Will an insurer only pay out on a third party claim if the insured is proven to be negligent and accordingly refuse to pay a third party claim if the insured is proven not to be negligent?"
After all this is the implicit in the points you made further up this thread and, as it happens, it also seems to reflect Fullchat's exeperiences.
He could have absolutely have known the tyre was bald, they still couldn't avoid the third party payments.
So I can drive around with four bald tyres, no brake lights, fraying seat belts etc etc and my insurer is still liable for the results of any accident caused, in whole or part, by failure to maintain my vehicle properly?
On the otherhand they would not be liable if I failed to maintain my body properly and, for instance, fainted at the wheel due to a vitamin deficiency?
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>>there is some contradictiotion, if not hypocracy, going on here.
You're too hard on yourself.
"Will an insurer only pay out on a third party claim if the insured is proven to be negligent and accordingly refuse to pay a third party claim if the insured is proven not to be negligent?"
That is indeed the principle. (Acknowledging that the question of negligence is complex).
>>After all this is the implicit in the points you made further up this thread and, as it happens, it also seems to reflect Fullchat's exeperiences.
I love that "as it happens" - what, do you think its a coincidence ?
So I can drive around with four bald tyres, no brake lights, fraying seat belts etc etc and my insurer is still liable for the results of any accident caused, in whole or part, by failure to maintain my vehicle properly?
Yes.
Although they can subsequently recover that money from you and are only compelled to cover thoses losses demanded by the RTA, which excludes any damages or losses suffered by you.
On the otherhand they would not be liable if I failed to maintain my body properly and, for instance, fainted at the wheel due to a vitamin deficiency?
That depends on whether or not you had been negligent. Had you suspected that there was something wrong with you but still drove, then you were negligent. If you had just left your doctor's office who had told you that you were completely healthy, then you probably are not negligent. If you are not negligent, then your insurer need not pay.
You're getting there.
So in the case we are talking about there are a couple of courses;
1) put it through and hope you get paid.
2) prove that he knew, reasonably expected, that there was something wrong with him and he still drove.
3) lose the money.
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You're too hard on yourself.
I love that "as it happens" - what, do you think its a coincidence ?
You're getting there.
Mark, this is verging on the offensive, I am getting rather pink fluffy diced with you patronising attitude here!
!!!
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Sorry, I missed out the word "again". I meant to say:
Mark, this is verging on the offensive again, I am getting rather pink fluffy diced with your patronising attitude here!
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I am getting rather pink fluffy diced with your patronising attitude here!
And I am getting rather annoyed at the amount of editing to remove all the swearing just lately.
DD.
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>>Mark (Brazil). Sorry if I lost the thread somewhere but is this the same person as Mark (RLBS)?
That's me. I was living in Rio at the time.
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Thats correct. But to make matters even worse Tescos have
also deducted the balance of the insurance (she had been paying monthly) so for a £1200 settlement she has ended up with500 quid... Reading the terms and conditions it does say that in some circumstances they will deduct the remaining installments from a total loss payout, but there doesn't seem to be any guidelines to this and the Customer services couldn't advise either. I wouldn't have minded so much if it was in all cases, but to say some circumstances is somewhat annoying.
Intersting, I wonder if they would have done this if she had protected bonus, I beleive in such circumstances they are obliged to continue cover, I am sure Mark will be able to tell us?
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to help settle the debate about "negligence" etc., here is a real case adjudicated by the ombudsman.
19.5 98/14177
Motor ? excess ? accidental damage ? parked car ? whether policyholder liable for excess.
During a spell of windy weather, a slate fell from a building and damaged the policyholder's car. Her motor insurer paid her claim subject to deduction of the £150 excess. The policyholder complained that she should not have to meet the excess because the damage had occurred through no fault of her own. However, the owner of the building denied any negligence and asserted that the building had been well-maintained. The policyholder accepted that the owners or occupiers of the building were not legally liable for the damage to her car, but argued that the insurer was treating her as though she were responsible.
Complaint rejected
The policyholder could only recover her excess if it could be established that someone else had acted negligently and either caused the damage or allowed it to happen. Unless she could prove that the building had not been well maintained, the windy weather was the probable cause of the slate being dislodged. The policyholder had not discharged the onus of demonstrating otherwise. The insurer could not be required to reimburse her excess simply because she herself was not in any way to blame for what had happened.
so there.
as has been said before, pwf & gf need to go through the process and hope it all works out ok for them.
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>>Intersting, I wonder if they would have done this if she had protected bonus, I beleive in such circumstances they are obliged to continue cover, I am sure Mark will be able to tell us?
Sorry, wrong again.
Bonus, protected or otherwise, is not related to the principle of cancelling after a total loss. That is a policy condition which is stated within some and not within others. The bonus arrangements and other ocnditions such as this one are independant of each other and an insurer could choose to use any combination.
It used to be a fairly common condition although it started dying out and I thought was going. However it was stated by someone else a few weeks ago that it was on the rise again.
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Bonus, protected or otherwise, is not related to the principle of cancelling after a total loss. >>
So a hard earned protected bonus is worth a handful of KP if the insured vehicle is adjudged to be a total loss?
Doesn't sound fair and proper to me.
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So a hard earned protected bonus is worth a handful of KP if the insured vehicle is adjudged to be a total loss? Doesn't sound fair and proper to me.
Oh right, because you thought it was called the "protected return premiums or unexpired insurance term in the event of a total loss" bonus. I can see how the confusion could arise.
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I can confirm (via a neighbours episode) that a writeoff payout can terminate a policy. His protected NCB is intact, possibly with the provisio he reinsures with the same insurer.
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Oh right, because you thought it was called the "protected return premiums or unexpired insurance term in the event of a total loss" bonus. I can see how the confusion could arise.
If I had any sense I would not rise to your patronising bait!
No, I understand "no claims bonus" to mean a bonus appplicable when the insured does not make a claim, simple really! Accordingly I understand "protected no claims bonus" to mean a bonus applicable even when the insured does make a claim, also rather simple!
Accordingly if someone drives into my car and writes it off even though it is legally parked etc I would expect for my no claims bonus to be honoured, yet alone a protected bonus.
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Accordingly if someone drives into my car and writes it off even though it is legally parked etc I would expect for my no claims bonus to be honoured, yet alone a protected bonus.
I don't think "no claim" necessarily means the same as "no blame" - I was clobbered by a hit-and-run and I reckon lost NCD cost me about £700 over 2-3 years plus the £300 excess.
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I don't think "no claim" necessarily means the same as "no blame" - I was clobbered by a hit-and-run and I reckon lost NCD cost me about £700 over 2-3 years plus the £300 excess.
If you had had a protected no claims bonus it might have been different.
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ENOUGH! Please!
Good lord....... May I suggest that those who haven't worked extensively in the insurance industry STEP AWAY FROM THE SUBJECT! Conjecture and hyperbole don't add a lot to this thread, hmmmm?
No Do$h - Alfa-driving Backroom Moderator
mailto:moderators@honestjohn.co.uk
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>>If I had any sense I would not rise to your patronising bait!
I couldn't have put it better myself.
Your understanding of protected bonus and the fact that it protects your bonus after a claim is correct.
However, it is a no claims bonus, not a "no claims which were my fault" bonus. Therefore, usually [not always] if you make a claim and it is not established beyond doubt that it was not your fault, then you will lose your bonus [or other consequences if its protected].
Without any relevant agreement between the insurers this would be pretty easy to establish since it could reasonably be seen that whichever insurance company paid for the other's damages represented the at fault party.
Regrettably we do have various agreements - these, such as Knock for Knock, are nothing to do with blame but are essentially an agreement between insurers not to sue each other and to pay for their own damages. There are a number of reasons for their existence but it is partly to save money and partly to prevent one or more insurers causing another financial difficulty. It was absolutely firmly a no CLAIMS discount - if your insurer hadn't paid out, then you had done nothing wrong.
As the arrival of these agreements reasonably coincided with the spread of excesses, then it was felt that the easiest way to establish the situation moving forward could be based upon the recovery of uninsured losses. I'm not sure what the alternative might have been, but this approach is a right royal pita.
Firstly, you might only be talking £50 and not care very much, or at least insufficiently to bother sueing someone who is refusing to pay out. But you have to do so to protect your NCD.
Secondly, it makes it more difficult to prevent a claim. Whereas previously you could have decided not to pay out for the other person's car, and not repair your own, then this would prevent a claim which you regarded as non-fault to progress, now events can run away with you.
Previously your insurance company cared who was at fault, now they do not. If you are at fault they charge you more money. If you are not at fault they do not charge you more money. In both cases their payout is much the same (excl. TP uninsured losses) - so the only person wiht any motivation to establish who was or was not at fault is the innocent person - nobody else involved, including the insurers, cares.
One consequence of this is the confusion between no CLAIM and no BLAME.
There was a time when an insurance broker offered a service and he would have dealt with some of this for you. Sadly these days it is generally eprceived that an insurance brokers service begins and ends with offering you a cheaper annual premium than anyone else.
Then there is protected NCD. First thing to understand - it isn't. Second thing to understand - it doesn't matter. People worry about NCD which is the most irrelevant thing you will deal with. Only the net premium matters. £100 less 10% discount is a better deal than £1000 less 90% discount. Really it is, I promise. But which one does everybody buy ? Depressing.
Only the bottom line matters. I do not know what level of bonus I receive on any of my cars. I have genuinely no idea. However, when I took the policy out I obtained one quotation for everything as it it, and then a second quotation for everything as it would have been had I one fault accident. I compared those two figures and then for each insurer I was considering I knew what the effect of an accident would be.
I chose the best deal which was, as it turned out, an unprotected ncd deal. The cheapest premium was protected ncd but the policy loading they put on in the event of a claim increased the net premium significantly, even though the bonus level remained the same.
You should do the same for any potential change. If you think in 9 months you might want your 17 yr old to drive, then get a quote now. Ditto buying a newer/bigger/faster/better/more expensive car, ditto moving, ditto additional drivers, changes in cover, whatever.
But most people don't.
Separate to ALL of that. Not related. Nothing to do with it. Different bit entirely. Is the question of whether or not your policy will be cancelled after a total loss. That is within the policy Ts&Cs and will differ between insurers and even between policies.
And now I'm bored of this thread - so I think that will do.
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Regrettably we do have various agreements - these, such as Knock for Knock, are nothing to do with blame but are essentially an agreement between insurers not to sue each other and to pay for their own damages. There are a number of reasons for their existence but it is partly to save money and partly to prevent one or more insurers causing another financial difficulty.
Mark, Thanks for this comprehensive explanation, with regard to your point about knock for knock (above) the cynic might say that it is a way for the insurance industry to justify increasing the premiums of two, as opposed to one, of it's customers without incurring a greater collective cost.
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Sorry cheddar, Mark is right and you are wrong.
There are certain circumstances where liability is said to be "strict", ie it is not necessary to prove negligence. One example is an owner's liability for the acts of his animals. These circumstances are rare, and do not apply to a road accident like this. It is not enough for the innocent party to show that they were in no way responsible for the accident. It must be proved that the other party was negligent.
If the steering of a car fails, and it can be shown that the car was properly maintained/MOTed etc and there was no advance warning of the failure, the driver is not liable. The same principle applies to a heart attack.
Remember that insurance is there to indemnify a driver against the consequences of his legal liabilities. If the driver is not legally liable, his insurance company does not have to pay.
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Just trawled through all of this and have to agree with Marks last post too. Except for one thing. We as insurance brokers do not charge fees and we recover uninsured losses for free too because we regard it as part of our service. We do off back up legal protection but only charge £8.50 for this to encourage people to have it because it is worth it. So if you want proper personal service and not some faceless foreign call centre eage to get you off the phone then shop around for a good broker. Ask them what they can offer you and don't just go for the cheapest price.
If the author of this thread had done that he would have had it all explained to him in the first place.
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Remember that insurance is there to indemnify a driver against the consequences of his legal liabilities. >>
Sums it up nicely!
I understand the principal however in the event of car A (parked legally at the road side while the owner/driver is elsewhere) and car B (being driven past car A) colliding it seems quite reasonable that the driver of car B should be liable for the ensuing damage, after all they are the only one of the two parties who could have contributed towards or acted to avoid the resulting collision even if they were not deemed to be negligent in doing/not doing so.
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Reasonable ? Maybe. But still wrong. Totally wrong. Completely, absolutely and thoroughly wrong. Not right.
Even if you are not prepared to admit it publicly, do desist with the misleading advice - perhaps the following will help;
It does matter whether or not you are negligent.
It does not matter whether or not the incident was your fault, the other insurance company will only pay out if their insured is legally liable (negligent).
It does not matter whether or not you contributed to the incident or whether or not you were able to avoid the incident, it is down to the negligence or otherwise of the other party.
And insurance company cannot decline a claim just because you are negligent.
Protected NCD does not mean that your policy has to be continued after a total loss.
If I think of anymore I'll post them...
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Cheddar, I can see where you are coming from and why you see it the way you do. The best way to see it though is to seperate the concept of causation from the concept of negligence.
You can cause an accident without being negligent (ie by having a heart attack). You can be negligent without casuing an accident (teh near miss). In order to be legally liable, you have to have both causation and negligence.
In this case, the owner of car has been the victim of simple bad luck, although us lawyers have to give it a more fancy name ("the vicisitudes of life")
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Even if you are not prepared to admit it publicly, do desist with the misleading advice - perhaps the following will help;
To whom am I gving misleading advice, as I said further up this thread with regard to the Clio owner in question, to advise not to push it is fair, to suggest that the Clio owner should not expect to get damage, excess etc paid in full is wrong.
Lawman and yourself have pointed out that they may not get any joy due to the question of negligence however what would you advise anyone in their circumstances to do, roll over and capitulate or be bullish and put a claim in? I know what I would do.
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So if I've understood this correctly, if I was driving along in my car, and a wasp flew in through the window and stung which caused me to swerve and collide with a parked car, I (or my insurance company) would not be liable for the damage to the other vehicle, as I had not been negligent, as I could neither have foreseen or prevented the wasp from stinging me?
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Well after a month of phonecalls and waiting for police reports, the other drivers insurance company have now said that they are investigating his medical records - and if there is no history then they will not pay out.
So it looks like she will lose out bigtime
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