I am the culprit in an accident: what to do with insurance

Publication date: 03/04/2019 Number of views: 5703

Author: Ermakov Andrey Valerievich Lawyer, partner of the Legal Agency of St. Petersburg Articles written: 20

The situation when an insurance company files a lawsuit against the culprit of an accident in order to recover material damage based on the compensation paid to the injured party is becoming more and more common every year. If previously relatively little-known organizations that had close ties with collection agencies committed similar sins, today you can get a claim for subrogation or recourse from almost any insurance company. Recently, there has been increased activity on the part of the insurance company, which is trying to compensate for its losses under CASCO or OSAGO contracts by filing lawsuits against those responsible for the accident. There is a trend: if the accident occurred in 2015 or 2021 (the statute of limitations is about to expire), and the amount of paid material damage exceeds 100-120 thousand rubles, you can expect a quick summons from the court. There are many explanations for this: the unstable economic situation in the country, a sharply increased number of vehicles, competition in the market, tightening legislation in the field of insurance companies. In order to somehow preserve their assets and not become bankrupt, they are forced to resort to subrogation and recourse claims. What to do if the insurance company sues the person responsible for the accident, what is the difference between recourse and subrogation, is it possible to reduce the amount of payments for a lawsuit and how to protect your property rights? Answers to these and related questions are provided by professional lawyers in the field of insurance law and civil law.

Conflict resolution by agreement of two parties

What to do if you do not have MTPL insurance. It is possible to resolve the problem by agreement of the two parties, without further litigation. This can happen if the damage caused to the car is minimal, there can be no hidden damage, the victims can independently determine the cost of repairs, both come to an agreement that it is easier for them to immediately agree peacefully and disperse.

According to Article No. 1064 of the Civil Code of the Russian Federation, losses caused in an accident are subject to full compensation for those responsible for this accident. Therefore, it is necessary, in the absence of an insurance policy, to be prepared to compensate for the restoration of the damaged car yourself. In addition, it will be mandatory to pay a fine for not having an MTPL insurance policy and driving a vehicle without insurance; claims for compensation for moral damages will be possible.

The best option is to pay the amount of compensation directly at the scene of the incident, but sometimes the culprit does not have the required amount of money, and he asks to wait and pay the money after some time. A person injured in an accident can take some valuable thing as collateral. All actions must be reflected in the receipt.

IMPORTANT !!! The passport of the perpetrator is not taken as collateral, because such an act is a gross violation of the law and is subject to criminal punishment.

If the victim cannot determine the cost of repair work, the cost of repair is determined by experts. An assessment of the damage caused can be done at a service station or independent experts. When receiving funds as compensation for restoring the damaged vehicle, the victim must write a receipt confirming receipt of the funds. To avoid further disputes, the entire process of contract and payment, writing the receipt should be recorded on video, or the DVR should be left on.

There is such a situation. There is more than one driver included in the OSAGO insurance policy for this car, and the car involved in the accident was driven by a driver who was not included in the policy. This situation is equivalent to the absence of a policy, but the OSAGO insurance company is obliged to make cash payments. If the culprit refuses to pay the amount for the restoration of the car, you must complete all the necessary documents within the established time frame and contact the insurance company or further to the courts.

Algorithm of actions for compensation of damage

The process of compensation for damages begins immediately after the accident. Once the mandatory traffic rules have been complied with, the parties must:

• correctly fill out the notification of an accident (according to the European Protocol, or with the participation of a representative of the traffic police);
• immediately notify your insurance company about the incident (this can be done by phone or at the company’s office);
• submit an application for an insured event and compensation for damage, submit a notification of an accident to the insurer;
• present the vehicle for damage inspection and damage assessment;
• submit documents on causing harm to life and health.

Even if the insurance company pays for property damage and personal injury, compensation for moral damage will still have to be recovered from the culprit. To do this, you need to file a claim in the magistrates or district court, justifying the degree of physical and moral suffering. As evidence, you can attach extracts from a medical institution about identified injuries, receipts and checks for payment for medicines and medical services.

The algorithm for payments under compulsory motor liability insurance is not significantly different for notifications under the European Protocol and with a call to the traffic police inspector. In the first case, the responsibility for the accident is determined and recorded in the notice by the drivers themselves. If they have a dispute on this issue, they need to call a representative of the road inspection. If a traffic police officer is called to draw up a notice, he will additionally draw up a protocol on traffic violations. This document confirms the guilt of one or both drivers.

Difficulties can arise if there is mutual fault in an accident.
Insurance companies cannot assess the degree of fault themselves, so they will compensate for damage on a 50/50 basis. If drivers do not agree with this calculation option, they can file a claim in court. By decision of the court, a different proportion may be established according to the degree of guilt (for example, 70 to 30, 90 to 10). To do this, the materials of the accident case are studied, and automotive technical and traceability examinations are carried out. In this case, the insurance company is obliged to compensate the amount of damage based on a judicial act. The person at fault for the accident does not have compulsory motor insurance. What will happen? Insurance payment in case of an accident.

Pre-trial claim

The second option is a pre-trial claim. This is done in the absence of a compulsory motor liability insurance policy and it is impossible to reach an agreement peacefully, by agreement of the two parties. Pre-trial proceedings are underway. An inspection employee records the fact of the accident. When drawing up a report at the scene of a traffic accident, information about the absence of an insurance policy at the perpetrator must be recorded.

The victim himself, without fail, retains information about the person responsible for the accident:

• Surname and initials,
• Place of registration and place of residence,
• Contact number.

In addition to recording the data of the person at fault in the accident, in order to file a pre-trial claim, it is necessary to prepare the following documents.

1. An independent examination report, which provides a detailed description of all, even if there is hidden damage to the car. A calculation is made of the amount of money needed to restore the car, that is, a calculation of the damage caused. In addition to the report on the examination, copies of permitting documents for the activities carried out by this organization, for example, a license, etc., must be attached. The cost of the examination is from 2000 to 7000 rubles.
2. In the event that damage is received as a result of which the machine cannot be restored, a report of lost marketable value is compiled. The cost of preparing such a report is 5,000 rubles.
3. Filing a pre-trial claim against the culprit of an accident without a compulsory motor liability insurance policy, the cost of filing a claim is 5,000 rubles. The claim can also be made by the victim himself. The document describes in detail the directions of movement of vehicles, the exact location of the accident, the time and date of the accident, and all related circumstances. But each point of the claim is supplemented with quotes from legislative documents and excerpts from an expert report on the calculation of damage caused. All this data must be consistent with the protocol from the scene of the accident drawn up by the traffic police officer, so it is important when drawing up the protocol to control what data is entered into the protocol. The final appeal shall indicate the amount of monetary compensation to be reimbursed. But, this amount may be greater than the amount indicated in the independent examination report, because it may contain an amount consisting of money spent on payment for the services of a technical service (tow truck), payment for car parking, payment for an expert assessment, payment for legal services, and the amount of moral damage.

To file a pre-trial claim, you must prepare a package of documents for the claim itself, which includes:

• A copy of the certificate from the traffic police about the incident.
• A copy of the resolution on the recorded offense.
• Letter notifying of an independent examination.
• Letter of invitation to visit.
• Copies of documents for the car
• A report with an expert assessment by an independent expert on the damage caused.
• Cash documents that can confirm the cash expenses for restoring the car.

All copies necessary for further proceedings are made and certified at the scene of the accident by traffic police officers who draw up a report on the incident.

ATTENTION !!! The completed claim letter should be sent to the postal address of the person responsible for the incident, in the form of registered mail with a return notification of receipt. Postage checks and receipts are retained. If the claim letter does not help to recover the amount of damage, you should draw up a statement of claim to submit to the courts.

In addition to information about the person responsible for the accident and the calculation of the amount of compensation for the restoration of the damaged car, information about the victim, contact phone numbers, postal address and email addresses are included. In addition, the time allotted for resolving the issue without trial is indicated. You should take advantage of the recommendation and pay monetary compensation within the allotted timeframe specified in the claim. When the case is brought to court, the perpetrator will need to pay both court costs and attorney fees.

IMPORTANT !!! If the person responsible for the accident does not have any property (real and movable property), or does not have a permanent job, such circumstances are not grounds for refusal to pay compensation, especially if the issue is resolved by court.

Non-standard case: accident with a moped

For driving vehicles whose engine capacity does not exceed 50 cubic meters. see, no license required. Such vehicles include scooters and mopeds, popular among teenagers.

Attention! A citizen who is involved in a traffic accident involving a moped should consider:

• Despite the fact that, in accordance with current legislation, citizens over 16 years of age can drive a scooter or moped, most often they are driven by persons under this age. If the moped that caused the accident is driven by a young child, compensation for the damage caused will have to be recovered from his legal representatives. In this case, the child himself cannot be held accountable;
• compulsory motor third party liability insurance for a moped or scooter is practically not issued;
• Most often, as a result of an accident involving a moped or scooter, the citizen driving it receives serious bodily injuries.

The damage caused by a moped or scooter to a car is most often minor. But to recover damages you will need to spend a lot of time and effort. Before starting the collection procedure, a citizen should ask the question: “Is it worth it?”

Vehicles with an engine capacity of up to 50 m3 do not require a license. These include scooters and mopeds.

The victim in the accident does not have MTPL insurance

If the victim in an accident does not have compulsory motor liability insurance, but the perpetrator has one, then compensation payments will be made in the full amount, according to the examination. But, in this case, an administrative decision will be made - a fine for driving a vehicle without compulsory motor insurance. The fine amount is 800 rubles.

If the person at fault in an accident is found to have a fake insurance policy, such an act is equivalent to a lack of insurance.

But the punishment for the culprit with a fake policy is much more serious:

• such an act is punishable by confiscation of the driver's license,
• the culprit bears criminal liability and administrative punishment,
• Serious fines are paid.

If the insurance, for some reason, was nevertheless paid after the discovery of a false insurance policy, the insurance company will subsequently demand the indicated amount of compensation from the person responsible for the accident.

To prevent such developments, you should:

1. Submit an application to check the compliance of the insurance policy with the RSA (Russian Union of Motorists).
2. File a pre-trial claim for the person responsible for the accident for the amount of monetary payment according to an independent expert assessment.
3. Upon receipt of a refusal to claim, draw up a statement of claim to the court, demanding compensation for losses incurred, including monetary costs for conducting examinations and preparing documents, and the work of lawyers.
4. Submit an application to the police department, enclosing a response to the request from the RSA, regarding the culprit for participation in the fraud.

Step-by-step actions of the culprit of the accident

When you are involved in an accident, you should not be afraid of responsibility. If you follow these steps, you will be able to save yourself from unfair punishment. Yes, you can reduce your liability, use the professional services of a lawyer, but first of all you cannot make mistakes.

• Stay;
• Perform a first aid;
• Call the state traffic police;
• Check and sign the protocol.

Actions in case of an accident are clear. Being the culprit of an accident, you need to take every detail of the incident seriously. Otherwise, the consequences will not be the best. Experienced lawyers often have to deal with cases where, after incorrect implementation of the rules, an independent examination after an accident showed fantastic results.

Important! The course of action at the time of the accident remains the main issue for the perpetrators if they do not want to face increased liability.

The victim of the accident has a CASCO insurance policy

The CASCO insurance company provides voluntary insurance to its clients against damage caused to the vehicle. The insurance does not include liability for transported cargo and the health of citizens. Liability for the health of citizens is insured by MTPL.

Let's consider a situation where the victim has CASCO insurance. Who will make compensation payments? What will happen to the citizens injured in the accident. The victim of an accident receives all payments according to the list of clauses in the insurance policy. But, in the event of injury to people, compensation payments are made only under the MTPL insurance policy.

To receive compensation for the restoration of health, you should negotiate peacefully, or go to court, to recover it from the person responsible for the accident who does not have compulsory motor liability insurance.

There are options when you may not receive payments for car restoration:

• the car is damaged or destroyed with the intention of obtaining insurance compensation.
• The car was driven by a drunk driver.
• the car was driven by a person who does not have a driver's license.
• the car was used abroad where the policy is not valid (in another country, etc.)
• operational capabilities have been exceeded.

IMPORTANT !!! To avoid such situations, do not give the car’s steering wheel to unauthorized persons or persons without a driver’s license, and do not overload the car.

In order to correctly and quickly resolve the situation created during a traffic accident, the driver - the culprit and the victim - should firmly remember

What not to do

The current legislation of the Russian Federation clearly establishes what citizens who have become participants in a traffic accident cannot do.

Participants in the accident are prohibited from:

• leave the scene of a traffic accident;
• change the location of vehicles;
• eliminate traces of the accident;
• provide knowingly false information to employees of the State Road Safety Inspectorate, doctors and insurance company representatives;
• give a bribe to law enforcement officers who arrive at the scene;
• refuse to receive materials prepared after the accident was registered by employees of the State Road Safety Inspectorate;

Attention! We especially note that the absence of a valid compulsory motor third party liability insurance policy among the participants in the accident will lead to the imposition of an administrative penalty, regardless of whether the participant is the culprit of the accident or the victim.

How to behave correctly during an accident

Every driver should remember the sequence of actions taken after an accident.

1. Turn on the hazard warning lights, mark the location of the accident, within 15 meters of the affected vehicles.
2. If people were injured during an accident, you should call an ambulance, call an ambulance if necessary, or perform first aid yourself.
3. Call the police and traffic police.
4. Interview those gathered to identify witnesses to the events that happened, ask them not to leave the scene of the accident until the traffic police inspectors arrive.
5. Exchange contacts with the culprit of the incident and try to resolve the dispute peacefully.
6. Wait for the inspection staff to complete all the documents as required in such cases. A traffic accident will be recorded. Please pay attention to the correctness of the information entered in the protocol and the presence or absence of an insurance policy.

If the damage caused exceeds 50,000 rubles, the statement of claim is sent to local district courts.

The following are attached to the statement of claim:

• original receipt for payment of state duty,
• copy of the statement of claim,
• power of attorney for a lawyer who will defend the rights of the victim in court.
• A copy of the pre-trial claim, and all documents from the list of pre-trial claims.

If the issue cannot be resolved amicably, by agreement of the two parties or by pre-trial claim, a statement of claim should be prepared in court. If damage is caused in an amount not exceeding 50,000 rubles, the investigation is conducted by a magistrate.

Drawing up a European protocol

In accordance with the current legislation of the Russian Federation, every owner of a motor vehicle is required to insure motor third party liability.

If the traffic accident leads to minor consequences, the participants in the accident can independently fill out the Euro-protocol.

The Euro protocol must be filled out with a ballpoint pen; it is automatically copied to a second copy. The person responsible for the accident keeps one copy of the Euro Protocol, and gives the second copy to the injured participant in the accident.

How to solve the situation?

If you get into an accident, you should prepare in advance for difficult actions. The driver will have to perform all the required actions so that, having said “I’m guilty,” he does not sign his own sentence. Now the legislation of the Russian Federation provides for several different ways to resolve the issue. Lawyers know how difficult each procedure is, but they regularly help their clients.

• The solution is in place;
• Peaceful agreement;
• Judgment.

When you get into an accident, you should immediately understand the situation. The culprit also has the right to a detailed assessment of the scene, so there is no need to worry about foul play. It is always possible and even necessary to participate in the inspection and carefully check the protocol before signing.

Important! All types of damage are considered in court, and it is better to immediately ignore proposals “on the spot”.

On-site solution

Drivers are involved in an accident and will have to decide what to do. Some car owners prefer to negotiate on the spot in order to leave safely and not waste time. Perpetrators usually believe that such actions are beneficial to them. Yes, it is possible to reduce wasted time, but the result is categorical.

The transfer of funds is a clear violation of the legislation of the Russian Federation. The procedure for any accident is precisely specified in the rules, so violation of it leads to additional administrative liability. A person who has found himself in a similar situation knows what it can lead to. This usually turns into a fine from the insurance company, as well as legal consideration of the violation.

Peaceful agreement

The peace agreement is another solution to a difficult situation. By admitting that “I am at fault,” the driver has the opportunity to sort things out before going to trial. If a person gets into an accident and understands, “I am the culprit,” it is not difficult to understand what to do. The victim should be contacted and a peace agreement offered. This approach remains the best because it helps reduce the time that is usually spent on endless legal proceedings.

By admitting, “I’m guilty,” the driver takes an important step towards an easy solution to the problem. Having received the independent examination data, he can freely pay an amount corresponding to all the costs of the victim, promising not to get into similar situations again. In such cases, administrative liability for violating traffic rules is even mitigated, but the procedure for action in case of an accident remains the same.

Judgment

If you get into an accident and I am the culprit, you should expect a court decision. The proceedings will begin without fail, with the insurance company becoming the main participant. She most often makes accusations, but the final conclusions are consistent with the legal framework.

When you are involved in an accident, the situation is thoroughly reviewed. The traffic police inspector draws up a protocol, and then an independent technical examination is carried out. But the process is often delayed due to lengthy checks. As a result, we have to wait a long time for final conclusions.