How to avoid regression. Drivers on the grounds and procedure for collecting recourse in civil liability insurance from the culprit of the accident. How to avoid recourse from insurance

There are already legends about OSAGO insurance among drivers. This is far from the instrument he intended to be. Today, car owners are actively opposed to any changes in legislation on this topic, since any changes in recent years have played far from in favor of the simple buyer of the policy. The problem is that in Russia the insurance business is entirely in the hands of large oligarchs who do not want to spend their money. This is not a secret, and it is unlikely that anything can be done with this fact. But if earlier insurance companies fought in the courts with the injured party of an accident, today the courts are also being conducted with the policyholders. What's the problem? The fact that insurance companies generally do not want to spend money on compensation for damages. Therefore, they are actively trying to absolve themselves of responsibility by any legal or illegal means. So the issue of compulsory motor third party liability insurance is becoming more and more complicated.

The secret is that insurance companies have smuggled several unpleasant laws through the lobbyists-deputies, the clauses of which are actively used in the courts for the so-called recourse. Recourse is the right of the insurance company to claim from the policyholder all costs incurred in compensating the injured party. That is, in simple words, this is an opportunity to take from the driver who bought the policy the full amount of money that the company paid to the victim. In such a situation, the entire institution of civil liability insurance is undermined, but the company is of little concern. Today, the wave of recourse lawsuits has grown to the scale of a tsunami, and it is time to do something about it. Of course, it will be very difficult for an ordinary citizen to prove his innocence in court, given the professional staff of lawyers and attorneys of large companies in the insurance business.

When can regression under OSAGO be applied at all?

The concept of recourse has been around for a long time, and today it is one of the main ways for negligent insurance companies to recover their costs. Insurers did not use this function before, since they had other levers of influence and used attempts to return their money only in a few percent of the total number of cases. But over time, the number of situations in which recourse can be applied in court has increased significantly, the law unties the hands of the insurance business.

Today regression can be applied in such situations:

• if the driver at the time of the accident, for which the company paid the damage to the injured party, was in a state of alcoholic or drug intoxication;
• if there was no insurance policy in the car during the accident, he could be at home or in any other place, but the driver did not have it with him;
• if during the recording of an accident the culprit was unable to provide documents for the right to drive a car, that is, the license was absent in the car at the time of the accident;
• if a gross violation of traffic rules was committed, as well as if the driver's actions can be considered intentional, the MTPL is not responsible for this;
• in the event that the amount of damage paid to the injured party turned out to be more than the maximum allowable limit under the OSAGO policy (this clause does not apply, since they are always paid according to the limit).

If you take a closer look at the fourth point above, you can see there are chances for a good lawyer to roam around. The driver will have to prove that he did not intentionally commit an accident or did not violate the rules with malicious intent. If you were driving at a red traffic light, then it is already obvious that you did it on purpose. The driver will not be able to prove that he simply did not see the traffic light, or some other circumstances interfered with his actions.

How is recourse court proceeding and when is it being filed?

Of course, insurance companies still do not file for recourse in all cases. Usually, they do not touch at all those drivers who have committed an accident through inattention. It will be difficult to prove anything here. Also, the practice of collecting amounts below 50,000 rubles is not very popular. It is obvious that paying for the services of lawyers and a lawyer will cost the insurance company more than the benefits received. So one shouldn't expect significant problems in such cases.

But they will almost always apply for recourse in such situations:

• the accident was not properly documented, they are especially actively filing for recourse when drawing up a European protocol, in which they usually make a lot of mistakes when registering an incident;
• almost always filed for recourse in a situation where another person was injured as a result of an accident, usually the amount of the policy is not enough to compensate for all types of damage;
• if you were drunk, without a license or without a policy, then there will be regression in one hundred percent of cases, and you will never be able to win the case, there is a huge practice and a whole list of precedents;
• if the circumstances of the accident are unclear, many insurance companies file for recovery from the culprit of all or part of the amount, sometimes it is possible to prove your innocence through the courts, but the chances are small;
• in the event of serious traffic violations, the lawyers of the insurance company can easily prove the intentional nature of your actions, and this will be one of the chances to demand money from you.

The limitation period for an accident is 3 years. This means that during this time the insurance company can send you a claim to reimburse the amount. This always happens through judgment. The case is heard by simple district courts, the appeal is standard, but usually it does not make sense. Even the highest courts will rely on the decision of the first court, and practice shows that the percentage of successful appeals is negligible. So you need to count all your hopes on the first court instance.

How can you fight off insurance recourse in court?

If the insurance company sues you, all is not lost. There are no statistics on lost and won cases, but lawyers say that in 30% of cases the claims of insurance companies are not legal. Therefore, the first thing you need to do is consult a good lawyer and ask him about the possible courses of action. Most likely, you will have to use the services of a lawyer, since you yourself will lose the court.

The following possible lines of behavior should be considered:

• it is the insurance lawyers who must prove that you are guilty in this situation, since the presumption of innocence is valid, no one can be recognized as a debtor if his guilt is not proven;
• you should use testimony that could prove that you unintentionally committed an accident, but simply showed insufficient care, this will help;
• it is important to use all the circumstances of the accident, draw a diagram and prove that there were some force majeure factors, so the only chance was to commit an accident;
• it is important to make references to the law on compulsory motor third party liability insurance, which more or less clearly spelled out the rules of recourse, but this should be done if you are really innocent in this situation;
• it is worth avoiding pleading guilty to at least something as much as possible, since any further courts will consider this as a reason for making a decision in favor of the insurance company.

There is no need to hope for appeals, they give nothing. You can drag out the time of the court session, postpone it for various reasons, use the services of lawyers, who, at a minimum, will reduce the declared amounts of recourse. Sometimes this does not make sense, since the services of a lawyer for 1 court in Russia will cost from 15-20 thousand rubles. Sometimes you will not get the same benefit from the actions of a lawyer. But it is still worth listening to the advice of an experienced lawyer and not deviating from the line of defense. Otherwise, you are guaranteed a loss.

What to do to minimize the risks of regression?

The court almost always awards the payment of obligations from the citizen's income. Therefore, if you understand that there will be a litigation with a person injured in an accident or an insurance company, then you can act ahead of the curve. The main task will be to take off all property that can be sold for the declared amount. This can be a car, garage or other purchases made per person. This property can be rewritten to relatives, there will be no claim against them.

• make sure that your personal income is not too large in official terms, it is best in this case for those who officially work for the minimum wage;
• provide the appearance that you do not have valuable property, so that the bailiffs cannot describe anything important at the place of your registration, many do not take this point into account, and then regret such a defect;
• in court, insist on the fact that you are ready to pay damages according to your income, so that the judge decides payments in equal parts in a certain percentage of your salary or pension;
• after a lost trial, a certain amount will be automatically deducted from you, which will go to pay off the debt to the insurance company, and you will not risk your property;
• in this situation, you can fight for your innocence in court, but only if the clauses of the law on recourse cannot really be applied to you, so this moment should be assessed immediately.

Regression is a very unpleasant moment in the insurance legislation of the Russian Federation. It should not be, as such, because the insurance company takes into account its risks and invests them in the cost of the policy. If you have already had a drunken accident, for example, the policy will cost you more than a person with a clean driving history. Therefore, regression is not an honest clause of the law on OSAGO. But, unfortunately, the courts often take the side of professional lawyers who beautifully prove the driver's guilt.

We offer you to watch a video about regression under OSAGO:

Summing up

In order not to get into an unpleasant situation with regressions from insurance companies, just be careful while driving. You should not violate the traffic rules, as even a minor violation can be considered intentional, and you may be denied compensation for damage. This means that you will have to restore the car of the injured party at your own expense or pay money to the insurance company in a recourse claim. Not a single motorist who is responsible for an accident is insured against this.

Nevertheless, the claims of insurers do not always correspond to the law on compulsory motor third party liability insurance. So you need to carefully understand the situation. It is possible that you do not have to pay anything, since your case falls under a standard situation where the insurance company must pay everything to the injured party. To prove that you are right, you will often need to rethink many laws and regulations, as well as talk to an experienced lawyer. But always see if it will not be cheaper for you to pay for the claim than to pay for the services of not very cheap lawyers today. Have you ever found yourself in a recourse situation from an insurance company?

Cases of insurers applying to the court for damages have become more frequent. Demanding regression under compulsory motor third party liability insurance from the culprit of the accident, they try to cover their losses associated with the payment of insurance to the injured person.

According to the law, the UK really have the right to receive compensation for their expenses, but only under certain conditions.

What is regression?

A special mechanism for reimbursement of losses is provided for by the current legislation for civil law relations in which a third party appears (Article 1081 of the Civil Code of the Russian Federation). It is she who is always the initiator of regression. With regard to the relationship between the insurer, the client and the victim, the following grounds will serve as the grounds for filing recourse claims:

1. According to the civil code, the obligation to compensate for the damage caused as a result of an accident is assigned to the perpetrator of the accident.
2. According to the law "On compulsory motor third party liability insurance" the insurance company bears the liability for compensation instead of the culprit.
3. The same law stipulates cases in which the insurer has the right to return the money spent by putting the opposite in court, that is, a recourse claim against its client. This mechanism can be applied only in a limited number of cases - all of them are spelled out in article 14 of the law "On OSAGO". These situations are in one way or another associated with a violation of the terms of the insurance contract or with a gross violation of traffic rules.

Regression is the right of the insurer to recover the amount spent on the victim in an accident from the client if he was the culprit of the accident and violated the insurance or traffic rules. Cases where this is possible are given in the law.

Grounds for recourse for compulsory motor third party liability insurance from the culprit of the accident

Regression of the insurance company to the culprit of the accident under the MTPL policy is possible after the insurer, having paid the victim compensation for damage, discovered serious violations of the rules on the part of its client - the culprit of the accident. These include:

1. Being in a state of alcoholic or other intoxication, including the state of "impaired attention", which is observed when exposed to drugs or psychotropic drugs.
2. Driving without a driver's license (just didn't have it with you). Also, driving without the right to drive, drive this vehicle. This includes cases, for example, when the driver is not entered into the CMTPL policy or got behind the wheel when the license expired, or at a time not provided for by the insurance policy - this is relevant in the case of issuing CMTPL for a specific period.
3. Not completed on time MOT - relevant for the owners of trucks and vehicles intended for the carriage of passengers.
4. The culprit left or tried to leave the crime scene.
5. If the accident is deliberately provoked or there was "malicious intent" - the desire to harm the victim.

All of the above grounds for the emergence of recourse under OSAGO are legal, only in these cases the insurer's rights to recover compensation from the culprit can be exercised. But only on condition that there is strong evidence of violation of the rules on the part of the client. For example, if we are talking about alcohol intoxication, there must be documentary evidence of this. There can be no other reasons for claiming compensation from the culprit, since they are not spelled out in Art. 14 FZ "On OSAGO".

Arbitrage practice

Judicial practice shows that the claim for reimbursement of expenses is not always put forward by the insurer on a legal basis. And although in the courtroom everyone is equal and each of the parties, including the defendant, has the right to defend their interests, the latter does not always manage to defend their interests.

Most often, to protect their clients, auto lawyers use defense tactics in court by challenging guilt. In most road accidents, both participants in the accident can indeed be considered guilty. If payments cannot be completely avoided, defenders switch to a different plan and try to reduce the amount of compensation. As practice shows, in 9 cases out of 10, this tactic gives a result.

How the collection takes place

The regression procedure is spelled out in Compulsory insurance rules (Art. 76)... This legal mechanism can only take place under strictly defined conditions, namely:

1. A claim for damages can only be made after the damages have been incurred. That is, after the insurance company has paid the victim in an accident a certain amount to compensate for the damage caused as a result of the accident.
2. A claim can be made only to the perpetrator of an accident, and, as you know, only a court can call a person guilty. The protocol on administrative violation is not enough.
3. The claim can be made within 3 years - this is the limitation period and its calculation starts from the day of the accident. Keep the accident documents so that you can confirm missing the statute of limitations in court.
4. The insurer is obliged to try to resolve the issue out of court - to issue an invoice to its client, and only in case of an outright refusal to pay the invoice, apply to the court with a recourse claim.
5. The amount of recourse must be the same as the costs incurred by the insurance company to pay for the damage caused to the injured client by the insurer.
6. The applicant is obliged to prove the fairness of his claims, that is, to prove the fact of violation of the rules by his client and justify every penny counted as compensation for the losses incurred.

A recourse claim cannot be filed against all clients of the insurer without exception, otherwise the point in concluding insurance contracts is simply lost. Recovery by way of recourse is possible only in cases where the client has violated the terms of the contract. This means that the insurance company may not fulfill its obligations under the contract, and if it did, collect the money spent.

Is it possible to recourse under the CASCO policy?

CASCO is insurance not of liability to victims, but of property. In the event of an insured event, SK makes payments to its own client so that he can restore his car. Regression in the case of CASCO is presented to the insurance company of the culprit. If the accident occurred through the fault of the client himself, but at the same time he did not violate the terms of the insurance contract, there are no grounds for filing recourse claims.

If the culprit turned out to be another participant in the accident (the owner of the MTPL policy), then he can receive a subpoena for a recourse claim, both from his own MTPL insurer, and from a third-party company in which the victim took out CASCO insurance. This is possible if any of those listed in Art. 14 situations.

What to do upon presentation of claims from the insurance

If the insurance company has put forward recourse claims to your address some time after the accident, in no case should they be ignored. If you fail to appear in court, the decision will be made in absentia, that is, with the satisfaction of all requirements. The more responsible you approach the solution of the issue, the less losses you will get out of the situation.

1. Check whether the statute of limitations has been met, whether the insurer has the right to make this claim.
2. Make sure that the requirements are set legally, that is, they fall under the cases described in Art. 14 of the Law "On OSAGO".
3. Calculate on your own according to the available documents the amount calculated by the IC that they are trying to collect from you. Even if you are guilty of an accident and improper compliance with insurance and traffic rules, there is still a chance to reduce the amount of the claim.

The price of the claim must correspond to the amount of the actually made payment to the victim in the accident. In case of doubt, the perpetrator of the accident has the right to try to challenge the calculated amount. The insurer can collect funds only in the amount of the actual damage caused to the victim, for example, the amount necessary for the complete restoration of the damaged car. Check the statement of the insured event, the vehicle inspection statement, the calculation of the cost of damage. Refer to the "Unified Calculation Standard", effective from December 1, 2014 - it contains uniform prices for parts, the cost of hours of repair work, developed by the Russian Union of Insurers. Contact the injured party and find out, if possible, how much money the insurance company transferred. It is not uncommon for companies to pay as little as possible, and try to recover from the culprit as much as possible.

In most cases, it is possible to prove the insolvency of claims either only on the basis of the documents provided, or by requesting an appropriate examination or by interviewing the injured party.

Hiring an experienced lawyer will help you win the case or get out of the situation with the least loss. The specialist will check all the arguments of the applicant and will definitely find a "gap" in them, if any. And if not, he will insist on conducting examinations, collect other necessary evidence.

If, nevertheless, the court ruled not in your favor, remember, you have the right to apply for an installment plan through the court, especially when it comes to considerable amounts in order to pay money monthly, while retaining at least 50% of your income.

How not to pay

Payments can be avoided only by observing all the rules of insurance and traffic rules. If the case has gone to court, it will be possible to avoid liability if the plaintiff misses the statute of limitations or if he does not have enough evidence. The latter is unlikely, because insurers are carefully preparing for the trial (the company always has a lawyer or even a whole team of lawyers on its staff). How can you avoid the consequences?

In order not to pay recourse to you, you will need an at least qualified specialist who will conduct a full legal examination of the evidence presented by the insurer. If there is not enough evidence, a lawyer will be able to protect you from payments or at least part of them. After a careful study of the case, the lawyer will choose the only possible defense tactics - challenging guilt. Sometimes it really is possible to prove that the insurance client is not the culprit of the accident (even if he was previously recognized as such).

Can an insurance company collect money from the person responsible for the accident? Maybe, but remember that the applicant must have good reasons for this. Reimbursement of expenses is allowed only in certain cases stipulated by law. As practice shows, the defendant, even in this case, is able to protect his rights and if he does not prove his innocence, then at least reduce the cost of the recourse claim.

The participation of drivers in the CMTPL program implies that their responsibility for an accident is "transferred" to the insurance company. However, in some cases, the paid amount of insurance may be collected from the car owner. Regression under OSAGO from the culprit of an accident is applied on the grounds specified in Art. 14 of Law No. 40-FZ.

The regression of the insurance company (ck) consists in filing claims against the perpetrator of the accident, if the amount of compensation has already actually been paid to the victim. It is impossible to claim recourse compensation before payment of the OSAGO policy. As a general rule, the guilty person will be obliged to reimburse the insurer for the entire amount transferred to the victim.

Law

If the insurance company reviewed the materials following the accident and paid compensation to the victim, recourse requirements will not necessarily be presented. The insurer has the right of recourse only on the grounds listed in Art. 14 of Law No. 40-FZ:

• if as a result of deliberate actions of the driver, harm to life and health was caused;
• if at the time of the collision the culprit is under the influence of alcohol, drugs, other intoxicating substances;
• if the violator did not have the rights, or was previously deprived of them;
• if the guilty participant fled the scene;
• if the citizen was not included in the OSAGO policy;
• if the insured event occurred during the period when the insurance contract was not valid;
• if the accident notification was drawn up with the participation of the traffic police, but the car was not presented for inspection by the insurer within 15 days;
• if, when buying an electronic policy, the car owner indicated inaccurate information about the car.

Another special case of recourse is provided for the absence or expiration of a diagnostic card for a vehicle, taxi, bus or truck. In 2019, clause g of Part 1 of Art. 14 FZ about CTP. He admitted prosecution for violation of the five-day deadline for filing a notification of an accident. Now regression is not applied for such a violation of the CMTPL rules.

Prior to the adoption of the Regulation of the Central Bank of the Russian Federation No. 431-P, the recourse procedure was carried out in accordance with Article 76 of the CTP rules. However, since 2014, Decree of the Government of the Russian Federation No. 263 was canceled, and bringing the culprit to justice is carried out only in accordance with Law No. 40-FZ.

Difference from subrogation

In the insurance system, not only the recourse procedure, but also subrogation can be applied. Their key difference lies in the different grounds for filing a claim. In a recourse process, such a right arises only upon actual compensation for damage by a person (insurance company) that did not cause it. there is only a transfer of claims for the original creditor (victim).

How to find out how much was paid to the victim

By way of recourse, only compensation actually paid to the victim may be recovered. If a referral was issued for repairs to a service station, this amount will be determined under an agreement with a car service, order-alongside. If the insurance company has filed a recourse claim, you can find out about the actually transferred compensation in the following ways:

• by written or oral appeal to the insurer at the stage of pre-trial settlement of the dispute;
• by requesting the materials of the insurance case in the litigation (if the insurer did not immediately attach them to the claim);
• by conducting an independent examination through an appraiser (if you have a report on a previously conducted examination).

Information about the actually paid compensation should always be in the insurance business. If such documents are absent, or are in doubt, the injured insured can be summoned to the court. If you received an SMS from an insurer, a claim or a recourse claim, immediately contact a lawyer for advice. Only in this case it is possible to dispute the claims of the insurance company, to choose the best option for protection.

How to avoid regression under OSAGO

The most obvious way to avoid recourse claims is to avoid an accident. Since it is nearly impossible to avoid road accidents, consider the following guidelines to eliminate additional liability:

• never drive in a state of intoxication, do not transfer control to drunk drivers;
• do not leave the scene of the accident until all procedural documents are completed;
• issue and renew the OSAGO policy in a timely manner, hand over the steering wheel only to the drivers included in the insurance;
• comply with the requirement to present a car for inspection by the insurer's experts.

If a non-contact accident happened, a recourse claim can be filed even if there is no external damage to your car. For example, if your guilty actions resulted in a collision of two other cars, you may not notice this fact, unintentionally flee from the scene of the accident. In this case, recourse will be legal. Pay close attention to the traffic situation to avoid such disputes.

How to appeal the recourse of an insurance company to the culprit of an accident

Accident regression goes through several mandatory stages. The pre-trial procedure consists in sending a written claim. If you do not pay, a lawsuit will be filed in court. Here are some recommendations that will allow you to defend your interests, challenge the court's decision:

• be attentive to the paperwork at the scene of the incident, ask for your objections and additions;
• take part in the inspection of the damaged car;
• receive documents by mail, subpoenas in a timely manner;
• when filing recourse claims, immediately contact a lawyer;
• be sure to participate in court hearings, file complaints against the decision in a timely manner.

Even if the court granted the claim, this is not a reason to give up and pay the insurer right away. An appeal can be filed within 30 days, a decision that has entered into force can be canceled through cassation and supervision... If these measures do not work, you can achieve a deferral or installment plan for payments. Such methods of protection also need to be taken through the courts.

How to reduce recourse requirements

If the insurance company paid money to the victim and asks for recourse compensation from you, you can try to reduce the amount of compensation. It is easier to do this if, immediately after the accident, you took part in the paperwork, in the inspection of the damaged car. You can use the following options to reduce the amount of recovery:

• get a vehicle inspection certificate, order an independent examination;
• check the list of damages and work performed at the service station, demand the exclusion of unnecessary spare parts;
• make sure that the amount of insurance paid out meets the requirements.

The Civil Code of the Russian Federation obliges the plaintiff to prove the size of the claims. Therefore, in the trial, the materials of the insurance case will be checked in order to avoid overstating the amount of the claim. The insurer has no right to refuse to transfer these documents at the request of the court. The defendant is given the right to file objections, present his own evidence. For example, you can request a forensic examination if you have doubts about the objectivity of the damage assessment.

How not to pay recourse

The insurance company will be denied the satisfaction of the recourse claim if the grounds under Art. 14 of Law No. 40-FZ. For example, if you prove that you did not drink alcohol before driving, that circumstance will prevent the recourse rule from being used. Payments can be avoided if your innocence is proven or the statute of limitations for filing a claim is violated. Cancellation of a judicial act is also allowed in case of procedural violations of the norms of the Code of Civil Procedure of the Russian Federation (for example, improper notification of the defendant).

Limitation period

To file a recourse claim, the insurer must comply with the statute of limitations provided for in the Civil Code of the Russian Federation. If the term of 3 years is violated, you can legally demand the termination of the civil case, the refusal to satisfy the statement of claim. The recourse statute can only be restored for valid reasons. In practice, it is almost impossible for an insurer to do this, unlike individuals.

Arbitrage practice

Compensation for damages by way of recourse has repeatedly been the subject of consideration by the Supreme Court of the Russian Federation. In particular, important procedural points were reflected in the Practice Reviews for Q3 2015 and Q1 2018. Let's highlight the most significant court decisions related to the recourse requirement for OSAGO:

• if the insurer has refused to pay the victim, he cannot make any claims against the perpetrator of the accident;
• cases when the insurance company did not initially involve the guilty person in inspecting the damaged car are considered an abuse of law;
• recourse requirements cannot be applied under DSAGO policies that are voluntary and do not fall under Law No. 40-FZ.

Another important prescription of the Supreme Court of the Russian Federation is the observance of the pre-trial procedure for resolving a dispute. The insurer does not have the right to file a claim in court until it sends a claim to the perpetrator of the accident, does not wait for the result of its consideration. The time for consideration of letters of claim cannot be less than 30 days, since this complies with the norms of the Civil Code of the Russian Federation. If the claim procedure is violated, the claim must be rejected.

If you are faced with the filing of a recourse claim from an insurance company under OSAGO, immediately contact our lawyers for a free consultation. The sooner you take protective measures, the more chances you are to avoid payment after an accident. At the consultation, you will receive an explanation of the norms of the law and judicial practice, and you will be able to order the execution of documents for the trial.