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Take responsibility for your actions

23 April 2015 Jonathan Faurie

Alcohol is a major contributing factor when it comes to road accidents in South Africa. While no firm statistics have been released as yet, the Department of Transport is already pointing to the majority of deaths on South Africa’s roads over the Easter season to be related to alcohol abuse.

While this is admittedly a problem in society, we need to be aware that the driving under the influence (DUI) clause in insurance policies can often be an issue of contention, and that at times it can be argued that the insured has been dealt a very harsh hand.

A case of one too many?

The office of the Ombudsman for Short-Term Insurance (Osti) recently dealt with a case of DUI and discussed the case in its official communiqué, the Osti Briefcase.

Mr G (insured) submitted a complaint against his insurer for damages to his motor vehicle which arose out of a single vehicle accident. According to the insurer’s rejection letter, the claim was rejected as the driver drove the vehicle whilst under the influence of alcohol, which is specifically excluded in the policy wording.

In their first response, the insurer advised that the accident took place at approximately 23h30 when the vehicle hit a pavement and crashed into a wall. The insured advised that he lost control of the vehicle. At claims stage the insured advised the insurer that prior to the loss he had attended a function where he had consumed one glass of wine. After leaving the function he had a nap and thereafter went out to purchase food which is when the loss happened.

Not exactly CSI evidence

According to Osti, the evidence that the insurer relied upon on was that of the tow truck driver and the South African Police Services arresting officer. Both the tow truck driver and the arresting officer confirmed that they could smell alcohol on the insured’s breath and further stated that he could not talk properly and was uncooperative.

The arresting officer confirmed that the driver was arrested at the accident scene and taken to the hospital for blood to be drawn for testing. The insured disputed the claims made by the tow truck driver and the arresting officer.

The insured was charged for driving under the influence of alcohol. However, the insured had advised that the criminal charge had been struck off the roll and that he had therefore been acquitted on the charge of driving under the influence of alcohol.

However, the Osti pointed out that the insured’s claim against the insurer was a civil claim and the insurer needed only demonstrate on a balance of probabilities that the driver drove the vehicle whilst under the influence of alcohol. This is done by taking all the available evidence into account.

The policy wording that the insurer relied on did not require blood or breathalyser test results in order to confirm the driver’s state of sobriety. Having regard to the relevant provisions of the policy wording, the insured was advised that Osti was in agreement that the insurer had shown, on a balance of probabilities, that the driver was under the influence of alcohol at the time of the loss and that this was material to the loss. The insurer’s repudiation of the claim was therefore upheld. Factors taken under consideration include the time at which the accident took place, the insured’s whereabouts prior to the accident, the manner in which the accident took place and the evidence of the witnesses

The ambit of dispute

While there is a very fine line that exists here, and we have to spare a thought for insurers who find themselves between a rock and a hard place. Insurers follow their policy wording guidelines when paying out claims because they cannot rely on governments follow through methodology to prove person’s level of intoxication. Test results are often delayed and at times compromised putting insurers in a position where they cannot trust them.

Clients need to take responsibility for their actions. Insurers should never be obliged to pay out claims where the person was drunk and negligent. If we know that there is a fine line when it comes to alcohol consumption, perhaps we should be explaining the insurers position when it comes to these cases and urge our clients to tread on the side of caution. Many insurers now have services where a driver will drive you home from a party or work function where there is alcohol involved. There is no excuse for clients to lodge claims with insurers where alcohol is a factor.

Editor’s Thoughts:
In an industry that is doing its best to offer added value service to customers, we simply cannot get behind the wheel of a car when we are under the influence of alcohol. We look at the statistics presented by the Department of Transport and ask: how can I make a difference? Well, don’t become a statistic. Don’t get behind the wheel if there is a chance that you are treading the fine line when it comes to alcohol. Maybe you should also encourage your clients to follow the same mindset? Please comment below, interact with us on Twitter at @fanews_online or email me your thoughts jonathan@fanews.co.za.

Comments

Added by Paul Chinchen, 11 Jul 2024
What should happen in the case where the car belongs to a company i.e. the vehicle does not belong to the driver who was under the influence of alcohol at the time of a collision?
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Added by Edsaid, 23 Apr 2015
Thanks Jonathan. Good article. When you crash your car negligently, you have just robbed society a part of it's wealth. Got it. Shame on you if you're this person
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Added by Craig A, 23 Apr 2015
I a surprised the broker wasn't sued for not informing the client about this clause in the policy. I had a very similar incident. Client was clearly drunk but got off on the criminal charge. Insurer repudiated (and OSTI agreed) and it cost the client R 350,000. And the car was financed! Quite a price to pay for a good night on the town.
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