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Insurer rejects claim on the ground of contravening lockdown regulations. Are you covered?

06 September 2021 Kagiso Tshandu, Associate & Nokulunga Bulo, Legal consultant at Fairbridges Wertheim Becker Attorneys

Every South African (including the rest of the world) has been affected by the COVID-19 pandemic which we are still facing, and all have had to adapt to the various lockdown regulations which governments all over the world have had to utilise in order to respond and curb the spread of the infections caused by the corona virus.

Consequently, there has had to be an adaptation to the situation we all presently find ourselves in. This adaptation has had the effect of altering how we usually deal with what we would consider “normal situations”. The lockdown regulations prescribed by the Disaster Management Act (which have constantly been amended and its duration extended from time to time), have immensely changed how we deal or react to what most would deem ordinary circumstances so to speak.

Many individuals have found themselves on the short end of the stick by failing to adhere to lockdown regulations, such as the prescribed curfew times or the necessary permits required for provincial travelling. As a result, when one gets into a car accident which fall within the ambit of contravening the lockdown regulations, the pertinent question that arises is whether one will be covered by their insurer.

In a recent case study, the Ombudsman for Short-Term Insurance (“Ombud”) found in favour of the insured who whilst contravening lockdown regulations was involved in a motor vehicle accident. The insured alleged that he was involved in an accident which occurred after he received his work travel permit, as he travelled from one of his homes to another to obtain his laptop which he utilised for work.

The insured’s claim was rejected by the insurer on the basis that the accident occurred at approximately 18:00 when the insured and his passenger were travelling to his second home during alert level 5 when any type of travelling was severely restricted, and mostly only allowed under exceptional circumstances.

The insured’s work permit only allowed him to travel between his home and his work place. The insured admitted that he travelled between his two homes for reasons which didn’t fall within the requirement of essential services. As a result, the insurer rejected the insured’s claim on the basis that he contravened lockdown regulations. The insured submitted a complaint to the Ombud in respect of the rejection of his insurance claim by the insurer.
The insurer, justified its rejection of the claim by stating that it offered a payment holiday to its customers as result of the economic effects of the pandemic, as well as the fact their customers risk profile changed due to less motor vehicles and movement on our roads. Furthermore, the insurer contended that the customers who contravened lockdown regulations directly impacted the risk which they were guarding against by offering payment holidays. Lastly, the insurer contended that but for the insured breaching the lockdown regulations, the accident would not have occurred.

The Ombud found that the insured clearly contravened lockdown regulations which restricted every person’s movement. However, the Ombud contended that the insurer could not show how the motor vehicle accident was caused by contravening lockdown regulations. The Ombud held that there was no causal link between the accident which occurred and the contravention of lockdown regulations by the insured. Simply put, the breach was not material to the loss.

The decision made by the Ombud finds support in President Versekeringsmaatskappy Bpk v Trust Bank van Afrika Bpk en ‘n Ander [1989] 1 All SA 247 (A), which states that one must assess whether the “undisclosed information or facts are reasonably relative to the risk or the assessment of the premiums”. Adopting the aforesaid principle, it becomes clear that if an individual’s motor vehicle tyres were not roadworthy or an inordinate amount of time had lapsed from when the vehicle’s service date fell due (subject to relevant policy terms), and such an individual was crashed into from behind during curfew times or whilst travelling without the necessary permit, there is simply no causal nexus between the contravention of lockdown regulations and the accident.

Therefore, insured drivers should caution against failing to comply with the lockdown regulations, but should one find themselves at odds with their insurer for a motor vehicle accident which was found to have occurred whilst in contravention of the regulations, an insurer will have to prove a causal nexus between the two before rejecting one’s claim. The Ombud rightly cautioned against this determination being utilized as a precedent or a licence by the insureds to breach the relevant policy terms and lockdown regulations as the ruling was based of the facts of the complaint.

Quick Polls

QUESTION

Do you believe this is the toughest period for financial advice in many years?

ANSWER

Yes, it’s hard to navigate the challenges and difficult to adapt. I’m struggling.
No, I have managed to navigate the challenges and have adapted. I’m good.
50/50. I just feel like whether we like it or not, we have to ready ourselves for change… be resilient and scale for the future. It’s not about survival of the fittest anymore but survival of the quickest. We just have to move on with life.
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