• Wed. Jun 29th, 2022

Two drunk driving insurance cases in South Africa that had two very different outcomes

Most auto insurance policies contain exclusions, which allow insurers to decline liability when an injured driver is under the influence of alcohol, or when a driver’s blood alcohol level exceeds the legal limit. , or when a driver fails a breathalyzer test.

New rules, under the National Road Traffic Amendment Act, will effectively introduce a total ban on the use and consumption of alcohol by all drivers of motor vehicles on South African public roads. The bill was presented to the National Assembly in May 2020 and is currently under deliberation by lawmakers.

For now, however, drivers can still drive a vehicle in South Africa if they have been drinking, as long as their blood alcohol level is less than 0.05 grams per 100 milliliters and the alcohol concentration in the vehicle. breath is less than 0.24 g / 1000 ml.

Despite this, insurers include very explicit exemptions in policies stating that motorists are not covered for incidents where the driver is clearly under the influence of alcohol and drugs, has a blood alcohol concentration. exceeding the legal limit or failing a breathalyzer test.

When rejecting insurance claims, the insurer has the burden of proving the exclusion.

With the onset of the Covid-19 pandemic, the use of breathalyzers has brought down the list of tests officers can administer at the scene of an accident. This had led insurers to rely on circumstantial evidence or witnesses to make decisions about claims.

The ombudsman for short-term insurers highlighted two case studies in the past year where he had to step in and smooth out the process and make an appeal based on the more limited evidence he had.

Both cases involved car accidents where the driver’s claims were rejected by their insurance companies and sent to the ombud for assessment. Without tangible evidence, the ombud had to rely on testimony and interviews to determine the truth.

Case 1

In the first case, a motorist was involved in a car accident, where he changed lanes with the car in front of him, forcing him to return to his previous position. However, that was when they were hit by a car behind them, which resulted in an accident.

With the insurance claim, the driver said he had not consumed alcohol. A breathalyzer could not be performed due to the Covid-19.

The insurer denied the claim, claiming the driver was in fact under the influence of alcohol. The insurer appointed an assessor to the case who interviewed four witnesses, all of whom said they could either smell alcohol on the driver’s breath or see them engaging in drunken behavior. They also claimed to have seen the driver throwing bottles of alcohol into the nearby veldt.

The insurer also had the scene assessed by an expert and determined that the driver was traveling at a speed of up to 190 km / h.

With only the testimony and the insurer’s assessment to prosecute, the ombudsman determined that, on the balance of probabilities, the driver was indeed under the influence of alcohol and that was the cause of his behavior. leading to the accident.

It confirmed the rejection of the claim by the insurer.

Case 2

In the second case, a driver stopped at an intersection and crossed after determining it was safe to do so. They were then struck by another vehicle crossing the intersection.

With the insurance claim, the driver said he had not consumed alcohol. A breathalyzer could not be performed due to the Covid-19.

The insurer denied the claim, claiming the driver was in fact under the influence of alcohol. The insurer relied on three testimonies from the scene, including the passenger of the other vehicle and two police officers who responded.

The passenger in the vehicle said the driver “appeared to be intoxicated”, was aggressive and smelled of alcohol. Police said the driver did not smell of alcohol, but was aggressive and appeared to be “intoxicated”, with a slight sway – although they remained steady on their feet. Officers admitted it could have been due to shock.

The insurer argued that the driver did not stop at the stopping street, therefore, the alleged alcohol consumption affected his ability to drive.

In handling the case, the ombudsman requested additional information from the driver and the insurer. The driver was successful in submitting a signed affidavit from the witness passenger, retracting his claim that he smelled alcohol on the driver’s breath. The passenger said his false testimony was based on the belief that insurance would pay for injuries sustained in the crash.

The driver also said they hit their heads in the crash, which made them dizzy, explaining their behavior.

While reviewing the appraisal tapes with the officers, the ombud also found that the insurer’s appraiser repeatedly asked the two officers leading questions that were interspersed with presupposed and leading answers.

The police did not provide their own explanation as to why they believed the driver was under the influence of alcohol, the ombud found, but instead led to the assessor’s conclusion.

The ombud overturned the rejection of the claim by the insurer.

How the ombud treats these cases

The ombud said in both cases he had to rely on witnesses instead of hard evidence to help determine the outcome – but a lot comes into being.

“OSTI considers all evidence presented by both parties to the dispute as well as the specific terms and conditions of the policy,” he said.

The insurer must prove:

  1. That the incident driver was under the influence of alcohol at the time of the accident.
  2. Whether the driver’s level of intoxication from the incident influenced or reduced his ability to drive.

“Evidence, such as blood test or breathalyzer results, may be submitted by the insurer. When the insurer is unable to provide such test results, it may rely on circumstantial evidence which may include, among other things, hospital records, statements from witnesses and / or police present. describing driver behavior.

OSTI stressed that considerations of justice and equity only apply in exceptional and justified cases. Often the applicable legal principles are adequate for resolving disputes.

“When applied, considerations of fairness and equity must be balanced, in favor of both parties. OSTI is not supposed to approach issues from a consumer-friendly perspective, as is often mistakenly believed, ”he said.

The ombud stressed that each case is treated on its own merits and that no precedent is set by the findings of the cases highlighted. “These case studies are intended to provide advice and insight into how OSTI deals with complaints,” he said.

Read: The types of businesses that receive the most consumer complaints: ombud