Data from the Ombudsman for Short-Term Insurance (OSTI) exhibits that an growing variety of motorized vehicle accident insurance coverage claims are being rejected and disputed on the idea of the ‘reasonable precautions’ clause in insurance coverage insurance policies.
In reality, the OSTI not too long ago present in favour of an insurer, the place an professional calculated that the insured drove above the regulated pace, mentioned George Herbst, senior affiliate at Barnard Attorneys.
“The OSTI justified its choice by stating that the insured was reckless as a result of had he noticed the pace restrict, he would have been in a greater place to evaluate the highway situation.
“The OSTI correctly remarks that the insured has a duty to not act in a reckless manner and that the test for recklessness is largely a subjective test. Thus, the onus remains on the insurer to prove that recklessness, and to acquit itself of this onus, it may rely on objective evidence.”
The latest and growing reliance by insurers on digital downloads of information from motor automobiles to validate claims is beneficial in lots of circumstances, however insurers have to be cautioned to be circumspect about solely counting on this knowledge to reject claims primarily based on the reckless behaviour of an insured driver, mentioned Herbst.
“Firstly, the insurer should be sure that the one that downloads and interprets the information is a bona fide professional and that the information extraction and methodology of arriving at conclusions in regards to the driving behaviour of the insured, is credible and verifiable.
“It is not generally sufficient for an insurer to rely only on data from the vehicle if no cognisance is taken of the physical scene, the prevailing traffic conditions, the time of the accident and other physical factors. Also, the level of experience and typical driving behaviour of the insured are factors that should be considered.”
A rising difficulty being encountered in claims is the truth that sure specialists who obtain the information for the insurers, usually refuse to share with the insured, the precise knowledge obtain, which prejudices the insured to analyse and use their very own professional to confirm and validate the knowledge, and to remark thereon, Herbst mentioned.
This makes it virtually unimaginable for the insured to have a good engagement on the difficulty, he mentioned.
“The methodology stands to be tested in the South African courts, whereas in certain foreign jurisdictions, it has already been canvassed. It is always advised that those who find them in these situations consult their attorneys for assistance because the arguments about these situations are often technically and legally complex.”