Review of certain issues of judicial practice related to voluntary insurance of property of citizens (approved by the Presidium of the Supreme Court of the Russian Federation on January 30, 2013)

ON SELECTED ISSUES IN JUDICIAL PRACTICE RELATED

WITH VOLUNTARY INSURANCE OF CITIZENS' PROPERTY

A generalization of judicial practice on disputes related to voluntary property insurance has shown that the courts, in general, correctly and uniformly apply the norms of the current legislation governing these issues.

However, in a number of cases, courts commit violations of the law when resolving cases of this category, and also do not always take into account the explanations contained in the resolution of the joint Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 N 13/14 “On the practice of applying provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds."

In order to prevent such facts, courts, in particular, need to:

Properly prepare cases of this category for trial, excluding cases of illegal refusal to accept a statement of claim, as well as unjustified abandonment of statements of claim;

Consider cases on disputes related to voluntary property insurance, taking into account all legally significant circumstances.

In addition, the generalization showed that when resolving disputes of this category, courts have questions that require clarification by the Supreme Court of the Russian Federation in the form of a corresponding resolution of the Plenum.

Systematization Department

legislation and analysis

judicial practice

Supreme Court

Russian Federation

The voluntary property insurance market is currently characterized by an expansion of the range of financial services provided and insurance products offered by insurance entities, as well as an increase in the number of citizens using insurance services to protect their property interests. The Supreme Court prepared a review in order to ensure effective protection of the violated rights and legitimate interests of policyholders, beneficiaries and insurers.

A significant part of the review is devoted to disputes over voluntary vehicle insurance, so-called CASCO agreements. "Pravo.ru" studied the document and selected the most interesting of them.

Unjust enrichment of a car owner

The insurance organization paid Oleg Terentyev* an insurance payment in an amount that significantly exceeded the cost of restoration of the car, determined later court based on expert findings. In this regard, the insurer filed a claim in court for unjust enrichment. The first instance ruled in favor of the plaintiff and established that the amount exceeding the amount of damage must be returned as unjust enrichment.

The appellate court, on the contrary, indicated that since the payment was made within the framework of a contractual relationship, it cannot be considered unjust enrichment. The dispute reached the Supreme Court, and the civil panel ruled that when the obligation to pay insurance compensation was fulfilled in a larger amount than necessary, the excess amount paid must be returned as unjust enrichment (Definition dated October 18, 2016 No. 1-КГ16-23).

Poor quality car repair

As part of one of the disputes, the Supreme Court decided: in the event of poor-quality car repairs, that is, improper fulfillment by the insurer of the obligation to provide insurance compensation in kind, the policyholder can exercise the rights granted to him in paragraph 1 of Art. 29 of the Law on Protection of Consumer Rights. For example, demand compensation from the insurer for the costs of eliminating deficiencies in the repairs performed (Definition dated May 24, 2016 No. 78-KG16-22).

Fines and moral damages for voluntary payment

Mikhail Dudarin * insured his car with IC Megaruss-D and during the period of validity of the contract he was involved in an accident. The insurance company voluntarily made a payment for the insured event, but it did not cover all of the citizen’s expenses, and therefore he first turned to experts to assess the damage, and then, on this basis, to the court to recover the remainder of the damage.

The appellate court awarded Dudarin unpaid damages, but refused to collect compensation for moral damages and a fine, since the man did not contact the insurance company again after his assessment.

The Supreme Court panel pointed to the fact that since the courts awarded uncovered damage, it is considered proven that the insurance company did not fulfill its obligation in full. The absence of a repeated application by the insured for additional payment of insurance compensation does not in itself relieve the insurer, who was obliged to properly fulfill obligations upon the first application of the insured, from liability (Definition dated December 1, 2015 No.).

Penalty amount

IN Determination dated March 28, 2017 No. 18-КГ17-25 The Supreme Court recalled the resolution of the Plenum of June 28, 2012 No. 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights,” according to which the amount of the penalty collected on the basis of clause 5 of Art. 28 of the consumer protection law (consequences of violation by the contractor of the terms of provision of services), cannot exceed the amount of the insurance premium.

Replacement of beneficiary

Individual entrepreneur Gennady Gorin* insured the car, and later an insured event occurred. He reported this to the insurance company, and then entered into an assignment agreement with Leonid Budzinsky *, according to which the latter accepted the right to claim for damages caused to the car in an accident. The appellate court indicated that as a result of the assignment agreement, a change of beneficiary occurred, which was not allowed by Art. 956 of the Civil Code, and therefore Budzinsky has no right to demand payment of insurance compensation.

The Supreme Court Collegium for Civil Disputes pointed to a significant violation of substantive law committed by the court. The Supreme Court noted - Art. 956 of the Civil Code does not contain any provisions limiting the assignment by the beneficiary of the rights belonging to him after he submits a demand to the insurer for payment of insurance compensation (Definition dated October 4, 2016 No. 18-КГ16-148).

Repair or money?

Maxim Leonidov* got into an accident with his insured car and filed a claim with the insurance company, but they refused to accept the document. Then he turned to the official dealer for an estimate of the cost of repairs and, based on this estimate, filed a claim in court. The first instance found the fact of the occurrence of the insured event and the fact of Leonidov’s appeal to the insurer proven and satisfied the plaintiff’s demands. The judges in the appeal did not agree with this - they indicated that, according to the terms of the agreement between the parties, the insurance payment is made by repairing the car at a car technical inspection station at the direction of the insurer.

based on the results of generalization of review practice

district (city) courts of the Kaliningrad region

cases on disputes related to voluntary insurance, considered in 2013 – 2016.

In connection with the order of the Supreme Court of the Russian Federation, the practice of consideration by district (city) courts of the Kaliningrad region of civil cases in disputes related to voluntary insurance of property, liability risk and personal insurance was studied.

To summarize judicial practice, cases of this category, considered by district (city) courts in 2013 - 2016, were requested and studied (a total of 157 cases were received). Of these, 31 cases were considered in 2013, 53 cases in 2014, 47 cases in 2015, and 26 cases in 2016.

The largest number of cases were received regarding disputes regarding the collection of insurance compensation and penalties for refusal or delay in payment under vehicle insurance contracts; in disputes regarding the recognition of refusal to pay insurance compensation under personal insurance contracts as illegal and the collection of insurance compensation in favor of the policyholder and (or) the beneficiary; on disputes about the recovery of paid insurance compensation by way of subrogation, as well as on disputes about recognizing personal insurance contracts concluded in the order of joining collective insurance programs for borrowers for loans as invalid (not concluded), about early termination of these insurance contracts and recovery of paid insurance premiums.

In addition, a small number of cases were submitted for synthesis on disputes related to voluntary insurance of residential premises and property interests of a tourist, civil liability of a tour operator and a legal entity (contractor).

When resolving cases of the above category, courts apply the norms of Chapter 48 “Insurance” of the Civil Code of the Russian Federation, Law of the Russian Federation of November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation”, Law of the Russian Federation of February 7, 1992 N 2300-1 “On the protection of consumer rights” in the part not regulated by special laws, as well as the explanations of the Supreme Court of the Russian Federation given in the Resolution of the Plenum of June 27, 2013 No. 20 “On the application by courts of legislation on voluntary insurance of citizens.”

An analysis of the generalization of judicial practice in considering disputes related to voluntary insurance showed that, in general, the courts correctly establish the circumstances that have legal significance for this category of cases, in particular those related to the occurrence of an insured event and the emergence of the insurer’s obligation to make an insurance payment, and also provide an assessment essential terms of the insurance contract, including compliance of the latter with the requirements of the Law on the Organization of Insurance Business, and the norms of the Civil Code of the Russian Federation. In general, the courts correctly interpret and apply the rules of substantive law to disputed legal relations, calculate the amount of the penalty for delay in payment of insurance compensation and other penalties established by law for non-fulfillment or improper fulfillment of the insurer’s obligations under insurance contracts.

1. In disputes related to voluntary insurance of residential premises, the courts, as a rule, check whether the event relates to an insured event, upon the occurrence of which the insurer becomes obligated to pay insurance compensation, as well as the validity of the amount of insurance compensation to be collected. To resolve these issues, the terms of insurance contracts are examined, evidence confirming the amount of insurance compensation is assessed, and, if necessary, examinations are ordered.

So, Bogucharskaya I.Yu. filed a lawsuit against JSC IC Alliance for the collection of insurance compensation, citing the fact that the apartment she owned was subject to flooding, but the defendant did not pay the insurance compensation.

Resolving the dispute, the court found that in accordance with the agreement dated August 12, 2011, OJSC IC Progress-Garant, of which the defendant is the legal successor, insured the apartment (interior decoration and communications) in the amount of 100 thousand rubles, as well as the civil liability of the plaintiff for the amount of 50 thousand rubles. for a period until August 15, 2012. According to the management company’s act, on May 2, 2012, the plaintiff’s apartment was flooded from the apartment above. The plaintiff notified the insurance company of the flood, after which its representative on May 4, 2012, inspected the apartment and drew up a corresponding report. To the plaintiff’s statement dated May 12, 2012 and the claim dated August 13, 2012 for payment of insurance compensation, the insurer sent a response according to which the issue of settling the claimed loss cannot be resolved until the insurer is provided with information about the cause of the flood.

In accordance with clause 3.1 of the Insurance Rules, which are an annex to the insurance policy, the insurer undertakes to compensate the insured for damage caused as a result of damage to the insured property due to the following risk: 3.1.2 “flooding”, including the ingress of water from adjacent premises, in this case compensation for damage does not depend on the causes of the flood.

Under such circumstances, the court came to the correct conclusion that the insurer’s refusal to pay insurance compensation was illegal.

Since during the trial the defendant also disputed the amount of damage caused by the flood to the apartment, at his request the court ordered a construction and technical examination, after which the claims of Bogucharskaya I.Yu. partially satisfied. In addition to insurance compensation in favor of the plaintiff, the court also imposed compensation for moral damage and a fine. The court decision was not appealed (decision of the Central District Court of Kaliningrad dated March 20, 2013 in case No.).

Gamidova L.A. filed a claim against Soglasie Insurance Company LLC for the recovery of underpaid insurance compensation and compensation for moral damages, indicating that as a result of the fire, damage was caused to the insured property - a non-residential office building with a total area of ​​sq.m., located at the address: . The cost of restoration work to repair the building amounted to 2,772,451 rubles, but the defendant did not pay the insurance compensation in full - 1,918,500.34 rubles, and therefore asked to recover from the defendant the underpaid insurance compensation in the amount of 853,950.66 rubles, compensation for moral damage 100 thousand, fine in favor of the consumer - 426975.33 rubles.

When resolving the dispute that arose, the court found that on March 6, 2014, between SK Soglasie LLC and Gamidova L.A. a voluntary comprehensive property insurance agreement was concluded - the above building (structural elements and engineering communication systems and networks of the building, external decoration of the building, internal decoration of the building) within the insured amount - 7 million rubles. for a period until March 5, 2015.

According to the conclusion of the fire inspection department, the suspected cause of the fire is the ignition of flammable materials in the fire zone inside the building from an open flame source.

By the resolution of April 8, 2014, the initiation of criminal proceedings against minor Kh., born on DD.MM.YYYY, was refused on the basis of clause 2.part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation, due to not reaching the age at which criminal liability begins.

After the plaintiff filed a statement about the occurrence of an insured event and received a referral for appraisal work from Forensic Expertise LLC, a report was drawn up, according to which the cost of the damage caused amounted to 2,064,739.44 rubles.

The plaintiff, not agreeing with this assessment, submitted to LLC IC Soglasie a report from LLC Kaliningrad Assessment Center, according to which the damage was determined in the amount of 2,772,451 rubles.

On November 25, 2014, the insurance company paid the plaintiff an insurance compensation in the amount of 1,918,500.34 rubles. (based on the first report using a coefficient of 0.86 to the amount of damage for structural elements and utility networks of the building according to clause 5.5 of the Insurance Rules).

Since the plaintiff insisted on additional payment of insurance compensation based on the report of Kaliningrad Assessment Center LLC, and the defendant disputed the amount of damage, at the latter’s request, the court ordered a construction and technical examination, as a result of which the damage amounted to 2,330,483 rubles. The defendant agreed with this conclusion and made an additional payment to the plaintiff in the amount of 248,020.65 rubles.

Under such circumstances, the court refused to satisfy the demands for recovery of insurance compensation in the amount specified in the claim.

In addition, the court considered it possible to apply the provisions of the Law on the Protection of Consumer Rights to disputed legal relations.

Thus, the court noted that, despite the indication in the insurance contract of Gamidova L.A. building as the property of a legal entity, the case materials indicate that the plaintiff, having insured her property with LLC IC Soglasie, acted as a consumer of the corresponding services intended for personal household needs.

Since the court established that the insured property belonged to the plaintiff as an individual, was not used for business purposes and was not being used by anyone at the time of the fire, there is evidence that Gamidova L.A. is an individual entrepreneur or founder of a legal entity, not represented, the court awarded compensation for moral damage in favor of the plaintiff in the amount of 25,000 rubles. and a fine of 12,500 rubles. (the decision of the Central District Court of Kaliningrad dated August 26, 2015 was not appealed).

Meanwhile, in the opinion of the panel of judges, the court’s conclusion about the possibility of applying the provisions of the Law on the Protection of Consumer Rights to disputed legal relations seems incorrect, since the real estate owned by the plaintiff - an office building with an area of ​​\u200b\u200bone square meter for its intended purpose does not correspond to the consumer and everyday needs of a citizen. Such property was not used by the plaintiff for personal household purposes; moreover, precisely based on the purpose, properties and characteristics of the non-residential premises, the latter was insured under the terms of the Rules for Insurance of Property of Legal Entities. Considering these circumstances, the court did not have sufficient legal grounds to collect compensation for moral damages and a fine in favor of the consumer.

2. Cases on disputes related to voluntary insurance of the risk of liability for obligations arising from causing damage to the property of others during the operation of residential premises.

The courts, when considering the above category of cases, checked the legality of the reasons for refusal to pay insurance compensation.

Osadchenko Yu.V. filed a lawsuit against Rosgosstrakh LLC (3rd person Zaripova I.V.) for the recovery of insurance compensation, indicating that on December 31, 2012, the apartment belonging to him was subject to flooding from the apartment above, the owner of which is Zaripova I.V., civil the latter's liability was insured by the defendant, but the latter refused to pay insurance compensation.

Objecting to the claim, the defendant referred to the fact that, in accordance with clause 3.3.1 of the Insurance Rules, the insurer provides insurance protection in the event of damage to property by water as a result of an accident in the water supply, heating, sewerage systems, as well as the penetration of water from neighboring premises that do not belong to the insured . Since the damage to the plaintiff’s apartment was caused by a leaking water pipe due to a crack, this event is not an accident and is not included in the list of risks for which insurance is provided, and therefore cannot be recognized as an insured event.

Recognizing the defendant’s position as untenable, the court indicated that, according to the insurance policy dated September 19, 2012, Zaripova I.V. insured for a period until September 19, 2013 the apartment (interior decoration and engineering equipment) in the amount of 900 thousand rubles, household property in the amount of 310 thousand rubles, civil liability in the amount of 100 thousand rubles. (insurance under option No. 1 “Full package of risks”.

According to clause 3.3. of the Insurance Rules, the insurer provides insurance coverage in case of property damage as a result of the direct impact of the insurance risks specified in clause 3.3.1, or their combinations.

According to Option 1 (the full package of risks of clause 3.3.1 of the Rules) includes the risks: clause “c” water damage as a result of an accident of water supply systems, water supply systems, heating, sewerage; p. “d” penetration of water from neighboring premises that do not belong to the insured (beneficiary).

In accordance with clause 3.10.5 of the Rules, events that occur as a result of physical wear and tear of insured objects (structures, equipment, materials), violation of standard service life, production and construction defects of insured objects, poor-quality installation work, are not recognized as insured events, unless otherwise provided for in the insurance contract.

Having analyzed the above provisions of the Rules, and also taking into account that under option 1, damage caused by the penetration of water from adjacent premises is covered by insurance protection, and in clause 9.1 of the insurance policy, the events listed in clause 3.10.5 of the Rules are not specifically stated as not related to insured events, the court came to the conclusion that the claims were satisfied.

The court also imposed compensation for moral damage and a fine in favor of the plaintiff (decision of the Central District Court of Kaliningrad dated November 28, 2013 in case No., the decision was not appealed).

In another example, the court, having established that the insured independently compensated the victim for the damage caused by the flood, reasonably recognized the insurance company’s evasion from paying insurance compensation to the insured as illegal.

So, Medvedeva E.S. filed a claim against IJSC National Insurance Group for the recovery of insurance compensation, indicating that its liability for damage was insured under an insurance agreement concluded with the defendant. In 2014, the Leningradsky District Court of Kaliningrad considered the case of R.’s claim against her (E.S. Medvedeva) for the recovery of damage in the amount of 178,474 rubles caused by the flooding of the apartment, within the framework of which, at her request to participate in the case as a third party insurance company was involved. Subsequently, a settlement agreement was concluded between her and R., under the terms of which Medvedeva E.S. compensates for the damage caused in the amount of 80,000 rubles, and R. waives the claims in full. After the execution of the settlement agreement, Medvedeva E.S. appealed to the insurance company with an application for payment of insurance compensation in the amount of 80,000 rubles, but she was refused.

To justify the refusal to pay insurance compensation, the insurance company referred to clause 4.6.1 of the Insurance Rules, which do not include events related to the repair, re-equipment of buildings, structures and premises as insured events, as well as to the court ruling on approval of the settlement agreement, which established that the flood was caused by the actions of E.S. Medvedeva. for illegal redevelopment and reconstruction of an apartment.

The court found that on October 31, 2013, the plaintiff and the defendant entered into an insurance contract for general civil liability for compensation for damage caused to the property of the victims, up to 250 thousand rubles. Insurance is provided in connection with the operation of the apartment. An insured event is the fact of the occurrence of civil liability of the insured, recognized by him voluntarily with the consent of the insurer or established by a court decision, for obligations arising from damage to the property of victims as a result of improper actions (inaction) of the insured. Under this agreement, damage to the victim’s property means damage, destruction and (or) loss of the victim’s property.

The parties did not dispute that on December 12, 2013, R.’s apartment was flooded from E.S. Medvedeva’s apartment, located on the attic floor of a two-apartment building. Addressing the claim to Medvedeva E.S. on the recovery of damage caused by the flooding of the apartment, R. indicated that the latter occurred as a result of the work carried out by E.S. Medvedeva. apartment reconstruction.

Civil Code of the Russian Federation

• Chapter 48 "Insurance" (Articles 927 - 970)
• Art. 15 "Indemnity"
• Art. 310 "Inadmissibility of unilateral refusal to fulfill obligations"
• Art. 395 "Liability for failure to fulfill a monetary obligation"
• Art. 421 "Freedom of contract"
• Art. 422 "Treaty and Law"
• Art. 1064 "General grounds for liability for damage"

Law of the Russian Federation of November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation”

• Art. 9 "Insurance risk, insured event"
• Art. 10 "Insured amount, insurance payment, deductible"

Federal Law of 02/07/1992 N 2300-1 “On the Protection of Consumer Rights”

• Art. 13 "Responsibility of the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) for violation of consumer rights"
• Art. 15 "Compensation for moral damage"
• Art. 28 "Consequences of violation by the contractor of the deadlines for completing work (rendering services)"
• Art. 29 "Consumer rights when deficiencies are discovered in the work performed (service provided)"
• Art. 30 “Time frame for eliminating deficiencies in the work performed (service provided)”
• Art. 39 "Regulation of the provision of certain types of services"

Decree of the Government of the Russian Federation of April 24, 2003 N 238 "On the organization of independent technical examination of vehicles"

Federal jurisprudence

The basis for payment of insurance compensation is the fact of the occurrence of an insured event, and not the infliction of losses caused by the insured event.
(Paragraph 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N 20 “On the application by courts of legislation on voluntary insurance of citizens’ property.”)

Driving a vehicle by a person not specified in the insurance contract does not exempt the insurer from paying insurance compensation.
(Review of certain issues of judicial practice related to voluntary insurance of citizens’ property, approved by the Presidium of the Supreme Court of the Russian Federation on January 30, 2013.)

In the event of complete loss of property, that is, in the event of its complete destruction or such damage that it cannot be restored, the policyholder is paid an insurance indemnity in the amount of the full insured amount.
(Paragraph 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N 20 “On the application by courts of legislation on voluntary insurance of citizens’ property.”)

The insurer is responsible for the quality of the vehicle restoration carried out in accordance with the repair order issued by the insurer as part of the insurance compensation.
(Paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N 20 “On the application by courts of legislation on voluntary insurance of citizens’ property.”)

If, when concluding a voluntary property insurance contract, the policyholder was given the right to choose the method of calculating losses incurred as a result of an insured event (without taking into account wear and tear or taking into account wear and tear of the insured property), when resolving a dispute about the amount of insurance compensation, one should proceed from the agreed terms of the contract. In the event of complete loss of property, that is, in the event of its complete destruction or such damage that it cannot be restored, insurance compensation must be paid in the amount of the full insured amount in accordance with clause 5 of Art. 10 of the Federal Law of November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation.”
(Paragraphs 36, 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 No. 20 “On the application by courts of legislation on voluntary insurance.”)

Voluntary property insurance contracts for citizens, concluded for personal, family, household, household and other needs not related to business activities, are subject to the Law of the Russian Federation dated 02/07/1992 N 2300-1 “On the Protection of Consumer Rights” to the extent not regulated special laws.
(Paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 N 20 “On the application by courts of legislation on voluntary insurance of citizens’ property.”)

The legislation on the protection of consumer rights applies to relations with personal and property insurance only to the extent not regulated by special rules. Thus, only the general provisions of the Law of the Russian Federation “On the Protection of Consumer Rights” apply to such relations, and these legal relations do not fall under the special provisions of this Law.
(Paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights.”)

Practice of the Moscow City Court

The insurance contract refers to obligations, the deadline for fulfillment of which is determined by the moment of demand, and therefore the limitation period in these relations begins from the day of the occurrence of the insured event, entailing the insurer’s obligation to pay insurance compensation.
(Resolution of the Presidium of the Moscow City Court dated May 17, 2013 in case No. 44g-39/13.)

The insurer does not have the right to refuse to pay the insurance compensation to the policyholder due to the failure of the policyholder to provide a vehicle passport (PTS), since the law does not provide for such a basis for refusal to pay.
(Determination of the Moscow City Court dated March 19, 2014 No. 4g/6-2109/14.)

The policyholder has the right to refuse the vehicle repair service at the direction of the insurer and demand payment of insurance compensation in monetary terms.
Regardless of the terms of the insurance contract (payment of insurance compensation or issuance of a referral for repairs), the insurer in any case has a monetary obligation. The difference lies only in the final recipient of the funds (in the first case, the insurer itself or another person entitled to receive compensation under the contract, and in the second, the service station repairing the insured vehicle).
(Appeal ruling of the Moscow City Court dated December 24, 2013 in case No. 11-42863.)

If the insurer delays payment, interest for the use of someone else's funds is collected from him for the period from the moment the obligation to pay insurance compensation arose until the day of actual payment of such compensation.
(Appeal ruling of the Moscow City Court dated December 10, 2013 in case No. 11-40114.)

Briefly about the important

Claims .
Basics:

• on payment of insurance compensation.

Additional:

• on forcing the gratuitous elimination of deficiencies in the repairs performed;
• on the collection of interest for the use of other people's funds;
• on payment of a penalty for late payment or non-payment (payment not in full) of insurance compensation;
• on compensation for damage;
• on compensation for losses;
• on compensation for moral damage.

The insurer acts as a defendant in disputes related to the payment of insurance compensation, since in accordance with the terms of the insurance contract, it is the insurer who undertakes the obligation to compensate the policyholder for losses incurred by him upon the occurrence of an insured event (Article 929 of the Civil Code of the Russian Federation).

When participating in disputes of this category, it is necessary to keep in mind that relations related to liability for violation of the rights of citizens under a voluntary property insurance contract are not regulated by a special law - therefore, the Law of the Russian Federation “On the Protection of Consumer Rights” (Definition of the Supreme Court of the Russian Federation dated October 29, 2013 N 78-KG13-23).

When calculating the statute of limitations in a case of collection of insurance compensation, one should take into account the position of the Supreme Court of the Russian Federation, expressed in paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 20. The two-year statute of limitations for disputes arising from legal relations on property insurance (Article 966 Civil Code of the Russian Federation), is calculated from the moment when the policyholder learned or should have learned about the insurer’s refusal to pay compensation under the contract or about payment of such compensation in an incomplete amount, as well as from the moment of expiration of the period for payment of insurance compensation provided for by law or contract.

With regard to compensation to the policyholder for moral damage caused by the insurer's failure to fulfill or improperly fulfill its obligations, the following should be taken into account. When the court decides the issue of compensation for moral damage to the consumer, a sufficient condition for satisfying this requirement is the established fact of violation of consumer rights (clause 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 N 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights”) .

The insurer may be exempt from paying insurance compensation only in cases established by law (Articles 961, 963, 964 of the Civil Code of the Russian Federation).

According to paragraph 1 of Art. 943 of the Civil Code of the Russian Federation, the insurance rules approved by the insurer are an integral part of the insurance contract and should not contain provisions that contradict the law and worsen the position of the insurer in comparison with the rules established by law. Provisions of insurance rules that contradict the law are void (Appeal ruling of the Moscow City Court dated December 24, 2013 in case No. 11-42595).

It should be borne in mind that the absence of a valid agency agreement between the insurer and the insurance agent is not an absolute basis for refusal of insurance payment on the basis of an insurance agreement concluded with such an agent. According to the courts, in such a situation the fault of the insurer is seen, who, having issued the insurance policy forms with a seal and his details to the agent, did not show the due degree of care and diligence (for example, Cassation ruling of the Moscow City Court dated March 12, 2013 N 4g/2-1549/ 13).

According to the imperative norm of paragraph 1 of Art. 929 of the Civil Code of the Russian Federation, insurance compensation can only be made by paying out funds. This must be taken into account when drawing up a statement of claim. So, for example, it is inappropriate to demand that the defendant be obliged to repair a previously insured vehicle, whereas the requirement to pay money for repairs or transfer these funds to the person who will carry out the repairs complies with the law (for example, Determination of the Moscow City Court dated January 22, 2013 N 4g/6 -715).

It must be remembered that if the repairs were performed poorly, you can demand that the insurer eliminate the identified deficiencies free of charge (clause 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 27, 2013 N 20 “On the application by courts of legislation on voluntary insurance of property of citizens”).

The penalty for the insurer's refusal to pay insurance compensation or partial payment of compensation should be calculated from the day when the insurer refused to pay or paid partial compensation (Definition of the Supreme Court of the Russian Federation dated January 14, 2014 N 20-КГ13-33).

It is not recommended to indicate in the claim simultaneously a demand for the collection of interest for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation) and for the collection of a penalty (Article 28 of the Law on the Protection of Consumer Rights). The court may consider the requirement to apply two or more measures of liability to the defendant as an abuse of right and refuse to satisfy them (for example, Determination of the Moscow City Court dated 02/07/2014 N 4g/8-914, paragraph 6 of the joint Resolution of the Plenums of the Supreme Court and the Supreme Arbitration Court of the Russian Federation dated 08.10 .1998 N 13/14).

The insurer should not be required to reimburse the costs of paying the amount of the unconditional deductible, since the obligation to pay the unconditional deductible is assigned by the insurance contract to the insured (plaintiff) (for example, Cassation ruling of the Moscow City Court dated October 4, 2013 N 4g/2-7537/13).

If the insurance contract contains a condition that the theft of a car with the key or registration documents left in it is not an insured event, the court should draw the attention to the fact that such a condition contradicts the Civil Code of the Russian Federation and should not be applied (for example, the Ruling of the Supreme Court of the Russian Federation dated 08.10 .2013 N 78-KG13-20, Review of certain issues of judicial practice related to voluntary insurance of citizens’ property, approved by the Presidium of the Supreme Court of the Russian Federation on January 30, 2013).

Due to the fact that the Law of the Russian Federation dated 02/07/1992 N 2300-1 “On the Protection of Consumer Rights” is applied to relations under voluntary auto insurance contracts, when the court finds that the insurance company has violated the rights of the insured, expressed in the failure to satisfy his demands on a voluntary basis, the court recovers a fine from the defendant in favor of the consumer, regardless of whether a similar claim was made by the plaintiff. Nevertheless, we recommend including such a requirement in the statement of claim (clause 46 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17).

You need to know that if the insured property is destroyed or lost, the policyholder has the right to waive his rights to it in favor of the insurer and demand from him payment of insurance compensation in the amount of the full insured amount (Clause 5 of Article 10 of the Federal Law of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation").

In accordance with Art. 15 of the Law of the Russian Federation dated 02/07/1992 N 2300-1 “On the Protection of Consumer Rights” consumer - i.e. in this case, the policyholder has the right to demand compensation for moral damage caused by the violation of his rights by the insurer if the latter is at fault. Thus, it is advisable to include such a requirement in the statement of claim. It should be borne in mind that the amount of compensation for moral damage does not depend on the amount of compensation for property damage, is carried out regardless of compensation for property damage and losses incurred and is determined by the court.

To make a decision in favor of the plaintiff, it is necessary to prove the circumstances indicated in the table.

Statement of claim for recovery of insurance compensation under a motor insurance contract (hull insurance)

To ________________________ district court

Plaintiff: ___________(full name)____________

Representative of the plaintiff: ____(full name)______

address: _______________________________,
telephone: _____________________________,
email mail: ____________________________

Defendant: ________(name)_______

address: _______________________________,
telephone: _____________________________,
email mail: ____________________________

Cost of claim: _____________________ rubles

State duty: ____________________ rubles

Statement of claim
on the collection of insurance compensation under a voluntary motor insurance agreement (hull insurance)

"___" ________ ___, at the address _____________________________, a road traffic accident (hereinafter referred to as the accident) occurred involving a car __________________, state registration plate ___________________, driven by __________________________ and a car owned by me __________________________, state registration plate ___________________, driven by _________________________

"___" ___________ _____, a car belonging to me brand ________________________, parked at the address _______________, was stolen by unknown persons.
My car ______________ is insured under the comprehensive auto insurance program (hull insurance) at the insurance company ____________________, which is confirmed by insurance policy N __________________.

"___" ___________ ____ I contacted the insurance company ________________ (hereinafter referred to as the Defendant) with an application for payment of insurance compensation, attaching all the necessary documents. In turn, the insurance company:

• made a delay in insurance payment of insurance compensation, which is confirmed by: an insurance act dated "___" ________ _____ recognizing the case as an insurance/payment order dated "___" ________ _____.

According to paragraph 5 of Art. 28 of the Federal Law of 02/07/1992 N 2300-1 “On the Protection of Consumer Rights”, in case of violation of the established deadlines for the completion of work (provision of a service) or new deadlines assigned by the consumer, the contractor pays the consumer a penalty for each day (hour, if the period is defined in hours) of delay (fine) in the amount of three percent of the price of performing the work (providing a service), and if the price of performing the work (providing a service) is not determined by the contract for performing the work (providing services) - the total price of the order. The agreement on the performance of work (provision of services) between the consumer and the contractor may establish a higher amount of the penalty (penalty);

• illegally refused to pay me insurance compensation, since the fact of the theft of the car has been confirmed and the insured event has taken place, which is confirmed by: a resolution to initiate a criminal case dated "___" ________ ____

According to paragraph 1 of Art. 929 of the Civil Code of the Russian Federation, under a property insurance contract, one party (the insurer) undertakes to compensate the other party (the policyholder) or another person in whose favor the contract is concluded (the beneficiary) for the payment stipulated by the contract (insurance premium) upon the occurrence of an event stipulated in the contract (insured event). losses caused as a result of this event in the insured property or losses in connection with other property interests of the insured (pay insurance compensation) within the amount specified in the contract (sum insured);

• incorrectly determined the cost of restoration repairs, which is _____________ rubles, which is confirmed by: the assessment report dated "___" ________ ____

According to Art. 947 of the Civil Code of the Russian Federation, the amount within which the insurer undertakes to pay insurance compensation under a property insurance contract or which he undertakes to pay under a personal insurance contract (insured amount) is determined by an agreement between the policyholder and the insurer in accordance with the rules provided for by this article;

• illegally refused to pay the insurance compensation, citing an overestimation of the insured value of the car when concluding an insurance contract, which is confirmed by: the car purchase and sale agreement dated "___" ________ ____.

According to paragraph 2 of Art. 10 of the Law of the Russian Federation of November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation”, when insuring property, the insured amount cannot exceed its actual value (insurance value) at the time of concluding the insurance contract. The parties cannot dispute the insured value of the property determined by the insurance contract, except if the insurer proves that he was deliberately misled by the insured;

• issued a referral for car repairs, but the repairs were performed poorly, which is confirmed by: a conclusion based on the results of an inspection conducted by a specialized organization.

In accordance with Art. 29 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the consumer, upon discovering deficiencies in the work performed (service provided), has the right to demand, among other things, that the deficiencies in the work performed be eliminated free of charge.
Art. 30 of the Law of the Russian Federation “On the Protection of Consumer Rights” stipulates that deficiencies in the work (service) must be eliminated by the contractor within a reasonable time specified by the consumer;

• refused to pay the insurance compensation, indicating that the damage to the vehicle was caused intentionally in order to receive an insurance payment, but did not provide evidence of this.

According to Art. 963 of the Civil Code of the Russian Federation, an insurance company is exempt from paying insurance compensation or the insured amount if the insured event occurred due to the intent of the policyholder, beneficiary or insured person;

• refuses to pay the amount of insurance compensation, citing the fact that the specified amount was paid, although there is no evidence of this.

• refuses to pay the amount of insurance compensation, based on an expert’s opinion on the circumstances of the damage to the car, which does not correspond to the real circumstances, which is confirmed by: testimony of witnesses / materials of the case of an administrative offense / photographs from the scene of the accident.

According to paragraph 2 of Art. 9 of the Law of the Russian Federation of November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation”, an insured event is an event that has occurred, provided for by an insurance contract or law, upon the occurrence of which the insurer becomes obligated to make an insurance payment to the policyholder, the insured person, the beneficiary or another third party. persons;

• in violation of the insurance contract, did not issue the policyholder with a referral for car repairs, and also could not provide evidence of the issuance of such a referral.

According to Art. 929 of the Civil Code of the Russian Federation, under a property insurance contract, one party (the insurer) undertakes to compensate the other party (the policyholder) or another person in whose favor the contract is concluded (the beneficiary) for the payment stipulated by the contract (insurance premium) upon the occurrence of an event stipulated in the contract (insured event). losses caused as a result of this event in the insured property or losses in connection with other property interests of the insured (pay insurance compensation) within the amount specified in the contract (sum insured);

• refuses to accept the usable remains of the insured vehicle, which is confirmed by the testimony of witnesses __________________.

According to paragraph 5 of Art. 10 of the Law of the Russian Federation of November 27, 1992 N 4015-1 "On the organization of insurance business in the Russian Federation" in the event of the loss of the insured property, the policyholder, the beneficiary has the right to waive his rights to it in favor of the insurer in order to receive insurance compensation from him in the amount of the full insured amount .
The above actions of the insurer caused my moral distress, and therefore I believe that I also suffered moral damage, which is subject to compensation on the basis of Art. 15 of the Law of the Russian Federation dated 02/07/1992 N 2300-1 “On the Protection of Consumer Rights” and the amount of which I estimate at _____ rubles.
According to Art. 309 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with business customs or other usually imposed requirements.
In accordance with Art. 310 of the Civil Code of the Russian Federation, unilateral refusal to fulfill obligations and unilateral changes in its conditions are not allowed, except in cases provided for by law. Unilateral refusal to fulfill an obligation related to the implementation by its parties of entrepreneurial activity and unilateral change in the terms of such an obligation are also allowed in cases provided for by the contract, unless otherwise follows from the law or the essence of the obligation.
In accordance with the provisions of Art. 1064 of the Civil Code of the Russian Federation, harm caused to the person or property of a citizen is subject to compensation in full by the person who caused the harm. By law, the obligation to compensate for harm may be imposed on a person who is not the cause of harm.
In accordance with paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount.
According to paragraph 6 of Art. 13 of the Law of the Russian Federation “On the Protection of Consumer Rights”, when the court satisfies the consumer’s requirements established by law, the court collects from the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) for failure to voluntarily satisfy the consumer’s requirements a fine in the amount of fifty percent of amount awarded by the court in favor of the consumer.
In connection with the above, in accordance with Art. Art. 15, 309, 310, 929, 931, 1064 of the Civil Code of the Russian Federation; Art. Art. 3, 29 Code of Civil Procedure of the Russian Federation; Art. Art. 12, 14.1 Federal Law dated April 25, 2002 N 40-FZ; Art. Art. 9, 10 of the Law of the Russian Federation of November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation”, Art. Art. 13, 15, 17 of the Law of the Russian Federation "On the Protection of Consumer Rights"

To recover from the Defendant in my favor:

1. Insurance compensation in the amount of _____ rubles.
2. Expenses for conducting the examination in the amount of _____ rubles.
3. Penalty in the amount of _____ rubles/interest for the use of other people's funds in the amount of _____ rubles.
4. Compensation for moral damage in the amount of _____ rubles.
5. Expenses for paying a representative in court in the amount of _____ rubles.
6. A fine of 50% of the amount awarded to me.

Applications:

1. A copy of the insurance contract dated "___" ______ ____ city N ___.
2. Evidence of late payment of insurance compensation: a copy of the insurance act recognizing the event as an insured event/payment order for the transfer of insurance benefits.
3. Proof of the theft of the insured vehicle: a copy of the resolution to initiate a criminal case.
4. Evidence that the insurance company incorrectly determined the cost of restorative repairs to the insured vehicle: a copy of the damage assessment report for the insured vehicle.
5. Proof that the insured value of the car was not inflated when concluding the insurance contract: a copy of the purchase and sale agreement for the insured car indicating its price.
6. Proof that the repairs directed by the insurance company were carried out poorly: a copy of the conclusion based on the results of an inspection carried out by a specialized organization.
7. Evidence that the circumstances of the damage to the insured car are true: copies of the administrative violation case materials/photos from the accident scene.
8. Calculation of claims.
9. Copies of the statement of claim and documents attached to it to the Defendant.
10. Receipt for payment of state duty.
11. Representative's power of attorney dated "___" _________ ____ city N ___ (if the statement of claim is signed by the Plaintiff's representative).

"___" __________ ____ G.

Plaintiff (representative):
_________________________/_____________________/
(signature) (full name)

Judicial acts attached to the statement of claim:

• Determination of the Moscow City Court dated February 7, 2014 N 4g/8-914
• Determination of the Moscow City Court dated January 22, 2013 No. 4g/6-715
• Determination of the Moscow City Court dated February 6, 2014 N 4g/8-859