The Non-life Insurance Division of the National Financial Ombud Scheme (NFO) says it has experienced a surge in complaints where motor vehicle accident claims have been rejected because the driver was found to be under the influence of alcohol or another intoxicating substance.
The biggest misconception among complainants is that the insurance company may rely only on the outcome of blood/alcohol or Breathalyzer tests to reject a claim, says Edite Teixeira-Mckinon, the Lead Ombud of the Non-life Insurance Division.
She said a claim against the insurer is a civil claim, and, unlike in criminal proceedings, the insurer needs only demonstrate on a balance of probabilities that the insured drove the vehicle while under the influence of an intoxicating substance. What this means is that the insurer has a lighter burden of proof than the State in criminal matters, and the insurer may rely on other evidence to reject a claim on this basis.
What constitutes other evidence differs from case to case. Some examples of the evidence that the Non-life Insurance Division has considered are:
- Evidence of witnesses at the accident scene describing the driver’s appearance and conduct which are consistent with that of someone who is under the influence of an intoxicating substance.
- The driver’s whereabouts before the accident – for example, at a shebeen, pub, party, or braai where alcohol was consumed.
- The vehicle’s tracking data and cellphone records disputing the driver’s version regarding their whereabouts before the accident.
- Bank statements confirming that the driver purchased alcohol before the accident.
- Video footage of the driver consuming an intoxicating substance before the accident.
- Evidence of paramedics and doctors who attended to the driver after the accident.
- The driver unlawfully leaving the scene of the accident.
- The time and day of the accident.
- The way the accident took place.
- The driver’s evidence about the amount of alcohol consumed before the accident.
Case study: Insurer’s rejection upheld
In a recent matter dealt with by the Non-life Insurance Division, the complainant disputed the insurer’s rejection of a claim for accident damage to his vehicle on the grounds that his son, the incident driver, was under the influence of alcohol.
The driver’s version of the incident was that the accident took place shortly after 1am when, while trying to overtake a third party, the third party moved into his lane, causing him to collide with the third party and losing control of the vehicle.
During the investigation of the claim, the driver said that on the day of the accident he met a friend at a shooting range. After their shooting practice, they each consumed a draught beer. Thereafter, the complainant’s son fetched his girlfriend from work, and they went to a café where they had a pizza and a milkshake. When leaving the café, at about 1am, the complainant’s son was involved in an altercation with the car guards during which he was stabbed.
To reject the claim, the insurer relied on the tow-truck driver’s evidence, which stated that the driver was severely under the influence of alcohol. In addition, the insurer obtained the son’s medical reports, which included notes compiled by the doctor who first treated him when he arrived at the hospital in an ambulance.
The doctor noted that the complainant’s son seemed agitated but oriented and under “EtOH influence” – EtOH is the chemical abbreviation for ethanol, the type of alcohol found in alcoholic beverages. The doctor told the insurer’s investigator that the complainant’s son was clinically intoxicated, and he reeked of alcohol.
The complainant disputed the doctor’s evidence, stating that his son used hand sanitizer after the accident, and his son consumed brandy after the accident, which would have attributed to the smell of alcohol that the doctor observed.
Having regard to the son’s whereabouts prior to the accident, the way the accident took place and the attending doctor’s notes, the Non-life Insurance Division upheld, on a balance of probabilities, the insurer’s rejection of the claim.
Case study: ‘Leading’ questions
Teixeira-Mckinon said the evidence of witnesses is not always conclusive when proving that an insured driver was under the influence of an intoxicating substance.
In another matter dealt with by the Non-life Insurance Division, there was no evidence of the complainant having consumed alcohol before the accident.
The accident took place when the complainant failed to stop at a stop sign and a third party collided with his vehicle. The insurer relied on the evidence of police officers who arrived at the scene of the accident shortly after it took place.
The police officers described the complainant as “tipsy”, and his eyes were red. However, it was pointed out to the insurer that although the police officers ascribed the complainant’s behaviour after the accident to his being under the influence of alcohol, the way the questions were posed to the police officers by the insurer’s assessor was “leading”, which presupposed and suggested the answers that the officers provided.
Further, no questions were posed to the police officers about the complainant’s head injuries and whether these could have contributed to his demeanour after the accident.
Teixeira-Mckinon said that after a thorough examination of the evidence presented by both parties to the complaint, a provisional ruling was issued for the insurer to settle the claim, which the insurer agreed to abide by.
Other policy exclusions
Even without evidence of a driver being under the influence of an intoxicating substance at the time of an accident, insurers often raise other policy exclusions to reject claims where it is suspected that the driver was under the influence, Teixeira-Mckinon said.
Some policies exclude cover where the insured unlawfully leaves the accident scene, which can hinder an insurer’s validation of the claim and lead to a possible rejection of the claim on this ground.
Another exclusion on which insurers rely to reject accident claims where it is suspected that the insured was under the influence of an intoxicating substance is the insured’s failure to provide true and complete information about the claim. For example, cellphone data or the vehicle’s tracking data places the insured at a shebeen or pub and the insured either fails to disclose or misrepresents to the insurer their whereabouts before the accident.
“The financial implications of a rejected accident claim are not just limited to the insured’s own vehicle damage but extend to the damage caused to a third party. Consumers are urged to ‘think before you drink, before you drive’,” Teixeira-Mckinon said.
