The client, as a motorist, was involved in an accident with a motorbike. The motorbike was travelling straight ahead and the client was turning. The general rule is that traffic travelling straight ahead on the same road has right of way. On the basis of this rule, the client’s own insurer fully accepted liability. However, the client did not agree with this and turned to us for help. After lengthy discussions with the client’s own insurer and the other party’s insurer, we achieved a successful outcome for both us and the client. Below, we will explain how, after years of discussion, we successfully represented the client’s interests.
Further investigation revealed that the motorcyclist had not been observing the prescribed speed limit. He was travelling at between 75 and 105 kilometres per hour on a road where the speed limit is 50 kilometres per hour. Furthermore, witness statements indicated that, prior to the accident, the motorcyclist had been riding on his rear wheel (performing a wheelie) for extended periods.
The client’s own insurer took the easy way out at the time and accepted 100% liability. The client could not agree with this decision. Under Article 6 of the Motor Insurers’ Liability Act (WAM), insurers enjoy a high degree of autonomy when settling disputes. In doing so, however, the insurer must take the insured’s interests into account. The client’s own insurer has a duty to make sufficient efforts to protect the insured’s interests. What exactly constitutes ‘sufficient efforts’ cannot be answered in general terms. Case law indicates that, on the basis of all the evidence, a judgement must be made as to whether the client’s own insurer could reasonably have reached such an acknowledgement of liability.
In our client’s case, we managed to convince their own insurer that, having considered all the evidence, they could not reasonably have reached such a conclusion. As a result, the client’s own insurer reinstated their no-claims bonus and refunded the excess premiums paid. However, the other party’s insurer stood firm and, despite the admission by our client’s insurer, refused to acknowledge the motorcyclist’s liability. The traffic accident analysis (VOA) shows that if the motorcyclist had complied with the traffic rules, this accident would not have occurred. The motorcyclist’s reckless driving is therefore the cause of this accident.
The other party’s insurer has stated that a full admission of liability is out of the question, as the client failed to give way to oncoming traffic. However, this reflects an incorrect interpretation of the law. After all, the client could not reasonably have been expected to accurately judge the movements of a motorcyclist travelling at approximately ninety kilometres per hour.
Article 12: SV procedure
At the time, the public prosecutor decided to drop the case. This was because the public prosecutor took the view that, given the severity of the motorcyclist’s injuries, he had already been punished sufficiently. At the time, therefore, no criminal proceedings took place. We are now considering, together with the client, whether, in addition to the civil proceedings against the insurer and the other party, we should also seek to hold them liable under criminal law. This can be done through proceedings under Article 12 of the Code of Criminal Procedure. In these proceedings, the judges will then consider whether the public prosecutor should proceed with prosecution after all. If the judges reach this conclusion and the motorcyclist is also found guilty under criminal law for his conduct, this will benefit the client in his civil proceedings against the insurer. Furthermore, the client may also join the criminal proceedings as an injured party and, through this route, obtain full compensation for his damages.
For readers without a legal background, the points mentioned above may be difficult to understand. In short, it boils down to the fact that the client’s own insurer and the other party’s insurer have disadvantaged the client by failing to conduct a further investigation. Both insurers merely considered the failure to give way and did not look into the motorcyclist’s reckless behaviour. This accident took place in 2018. After other claims handlers had been unable to assist the client effectively for two years, the client turned to us. Ultimately, the other party’s insurer accepted liability and the client received what he was entitled to. Do you feel that your own insurer has wrongly accepted liability, or that the other party’s insurer has wrongly rejected liability? Have you been working with a claims handler for some time now who simply cannot make any progress with your case? If so, please contact us free of charge so that, just as we did for the client mentioned above, we can be of service to you too.
