thursday, 9th july 2015

An accident at a crossroad provided with tricolour traffic lights, with no witnesses and where each driver claims to have passed when the light was green. There is substantial material damage and one of the drivers is injured.

Who has to pay ?

According to the classical theory of liability, nobody has to. When not being able to determine who is responsible, insurers will be able to validly claim that their conditions of intervention have not been met. It is what we call the back to back.

A law known as “multiple-vehicle collision” has changed this. It is a 2002 law whose application has led to abundant jurisprudence because its conditions of application have been systematically disputed by insurers.

This new law stipulates that :

« (…)if several vehicles are involved in an accident and it is not possible to determine which one of the drivers caused the accident, the compensation for the injured person is shared equally between insurers covering the drivers of those vehicles against civil liability, with the exception of those who are undoubtedly not liable” (Article 19 bis- 11 § 2, Act of the 21st November 1989 related to compulsory insurance against civil liability in respect of motor vehicles).

It should be noted that two vehicles are enough to actuate this insurance compensation. This is in accordance with the ruling of the Constitutional Court of the 3rd February 2011 and has provoked strong reactions in the field.

Material damages as well as bodily injuries should be covered by the insurance companies when circumstances make it impossible to clearly identify who was responsible for the accident. A subsequent ruling of the Constitutional Court (4th December 2014) confirmed this !

As liability does not come into play, the application of this article does not generate any bonus/malus related to the third party car liability.

This new obligation has been imposed on insurers, irrespective of the injured person's liability or identity.

Thus the liability insurer can be obliged to compensate its own policy-holder.

This can lead to grotesque situations where the liability insurer is likely to find himself in a conflict of interest with his policy-holder as the back to back, favourable to his policy-holder, is likely to harm him.

Let's imagine that in this case, there is, on the one hand, a heavy goods vehicle and, on the other hand, a motorcyclist. On the one hand, scratches on the bumper and on the other hand, a severe form of disability... The insurer of the motorcyclist will want his client to be found responsible. So that it will only have to pay the painting, whereas if it is considered a back to back case, the insurance will have to assume half of the entire damage and in particular the after-effects of its policy-holder !

This is when having legal protection from a company that is not your liability insurer makes full sense.