Client neglects his obligation to give way, yet client is still entitled to compensation!
This client was involved in an accident with a motorbike as a car driver. The motorbike was going straight ahead and the client wanted to turn left. The main rule is that traffic going straight ahead on the same road has priority. Based on this principle, the client’s own insurer acknowledged liability in full. However, the client disagreed with this and turned to us. After long negotiations with his own insurer and the insurer of the other party, victory was achieved for us and our client. Below, we will explain how, after years of discussion, we successfully defended the interests of the client.
Upon further investigation, it emerged that the motorcyclist did not keep to the maximum speed limit. He drove between 75/105 kilometres per hour on a road where a maximum of 50 kilometres per hour is allowed. Witness statements also showed that the motorcyclist had been riding on his rear wheel (ie. a wheelie) for long periods before the accident occurred.
The client’s own insurer made things easy for themselves at the time and accepted full liability. This was a decision with which the client could not agree. Pursuant to Section 6 of the Motor Insurance Liability Act (WAM), the insurer is given a large measure of independence in settling disputes. However, the insurer must take the interests of the insured into consideration. The insurer has the obligation to make sufficient efforts for the insured’s interests to be taken into account. It is not possible to provide a general answer as to what “making sufficient efforts” exactly means. It follows from case law that on the basis of all the evidence, it has to be judged whether the own insurer could reasonably come to such a recognition of liability.
In the case of this client, we were able to convince his own insurer that, considering all the evidence, they could not reasonably come to such a conclusion. As a result, the insurer reinstated the claim-free years and refunded the excess premiums. However, the other party’s insurer stood firm and would not acknowledge the motorcyclist’s liability, despite the admittance of the client’s own insurer. The traffic accident analysis (VOA) shows that if the motorcyclist had adhered to the traffic rules, this accident would not have happened. The reckless driving behaviour of the motorcyclist is therefore the cause of this accident.
The insurer of the other party has indicated that there is no chance of a full recognition of liability, as the client did not give way to traffic going straight ahead. However, this is an incorrect interpretation of the law. After all, one should not expect the client to be able to properly anticipate a motorcyclist driving at approximately 90 kilometres per hour.
Article 12 Sv procedure
At the time, the public prosecutor dismissed this case. The reason for this was that the public prosecutor was of the opinion that, in view of the seriousness of the injuries sustained by the motorcyclist, he had already been punished sufficiently. At the time, therefore, there was no criminal prosecution. We are now considering, together with our client, to hold the other party liable by means of criminal law, in addition to the civil law procedure.. This can be done by means of an Article 12 Sv procedure. In this procedure, the judges then examine whether the Public Prosecutor should prosecute after all. If the judges come to this conclusion and the motorcyclist is also declared guilty under criminal law, this will benefit the client in his civil proceedings against the insurer. Moreover, the client can also join the criminal proceedings as an injured party and, via this route, receive full compensation for his loss.
For the non-legal reader, it may be difficult to understand the above. In short, it comes down to the fact that the client’s own insurer and the other party’s insurer have disadvantaged this client by not carrying out a more detailed investigation. Both insurers only looked at the fact that the right of way was not given and not at the reckless behaviour of the motorcyclist. This accident took place in 2018. After two years during which other parties were unable to effectively assist this client, he turned to us. Eventually, the insurer of the other party acknowledged liability and the client received what he was entitled to.
Do you have the feeling that your own insurer has wrongfully acknowledged liability or that the other party’s insurer has wrongfully rejected liability? Have you been seeing a legal advisor for some time now, who is unable to make any progress in your case? Please contact us, free of charge, so that we can also be of service to you, just like the client mentioned above.