# Accident with substandard tyres, insurance company refusing cover. Options?



## unstacked

Hi, my husband was driving my car last week and rear ended another car.  He went to brake and his foot slipped off the pedal and he didnt have time to recover -so went into the cars rear. 
My car was a write off.  Husband was a name driver on my policy.  He did not have a policy in his own name as it had lapsed.  Car in front was a 04 and was also written off.
Last Friday I agreed for 4760 for my car with the assessor in Aviva ( my car was a 08 A4).

I did  not know that 3 of my tyres were under the limit. And this morning when I rang up to see about how long my cheque would be - I was told that the whole matter is in question now as they are looking at not paying out at all because of the tyres... and if there are any third party damages they will be against me. 

I dont have any money to replace my car and need the insurance money...is there anything I can do?


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## Leo

I've edited your thread title to summarise the issue at hand. 

If your insurance company refuse cover, then you will be out of pocket to the tune of your own car and potentially all the other party's costs also. They may have an appeals process for such circumstances, but most policies do call out that your cover is null and void if you fail to maintain your car in a roadworthy, and fully compliant manner.


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## unstacked

Last Friday they had reduced what they were giving me for my car by €240.00 for the tyres.
Now today its changed and there is no taking into account that  my husband might have been too close to the car, didnt even brake because it slipped etc.  I always thought that the insurance was meant to have your best interests at heart


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## Brendan Burgess

unstacked said:


> I always thought that the insurance was meant to have your best interests at heart



Yes, but they are not meant to compensate people for driving a car which was not roadworthy.

Brendan


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## unstacked

Thats just it no one knows how fast he was driving ( he drives up the back of cars all the time ) and drives too fast.  The one time he has a crash that is his fault its in my car.  You are meant to keep a safe distance from the car in front to allow you to slow down or stop.  He wasn't able to stop because his shoes were wet and they slipped off the pedal.  Should any of this be taken into account AND before you say it - yes I now know the tyres were not good.


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## Brendan Burgess

I have to admit that I am confused.

You seem to be arguing for the Insurance company now? 

Brendan


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## unstacked

Whats wrong with saying my husband is a dangerous driver?
I had reached an agreement for a settlement figure last Friday with the Aviva assessor
My husband did not use the brake in the accident
The tyre dept did not contribute to the accident


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## ClubMan

If you are not satisfied with the insurance company's handling of this claim then complain to them about it and ultimately get a final response letter from them then you can go to the Financial Services Ombudsman and make a complaint to them.

https://www.fspo.ie/

But, honestly, I'm sorry to say that I doubt that you have a leg to stand on there from what you've posted.


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## unstacked

Thank you ClubMan


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## MrEarl

Hello,

It might be interesting to see when the last NCT was done on the car, and if that identified the tyres as needing to be replaced.


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## Jim2007

unstacked said:


> Whats wrong with saying my husband is a dangerous driver?
> I had reached an agreement for a settlement figure last Friday with the Aviva assessor
> My husband did not use the brake in the accident
> The tyre dept did not contribute to the accident



You are missing the point, in order to be insured in the first place you are required to keep your car in a road worthy condition.  You did not do so and consequently they are arguing that you were not insured at the time of the accident.  It does not matter what happened at the accident, they are simply claimant you were not insured.


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## Jim2007

unstacked said:


> He wasn't able to stop because his shoes were wet and they slipped off the pedal.



You want to add contributory negligence to the mix as well....


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## unstacked

NCT was done early August 18


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## unstacked

1 tyre needed replacing


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## unstacked

I certainly wouldn't drive with wet soles...would dry them on car mat before setting off...maybe Im.just a careful driver


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## noproblem

unstacked said:


> Thats just it no one knows how fast he was driving ( he drives up the back of cars all the time ) and drives too fast.  The one time he has a crash that is his fault its in my car.  You are meant to keep a safe distance from the car in front to allow you to slow down or stop.  He wasn't able to stop because his shoes were wet and they slipped off the pedal.  Should any of this be taken into account AND before you say it - yes I now know the tyres were not good.



I'd advise you to never give evidence in court if you're trying to help anyone.


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## unstacked

Maybe I should play Stand by your Man

Point is they settled and agreed a figure  last week for the car.


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## Steven Barrett

I'm trying to figure out what you are trying to achieve? Your husband is insured under your policy, so when he was in an accident, he is covered too, so has a right to make a claim. As the owner of the car, you are responsible for the safe upkeep of the car. While it may not have been the cause of the accident in this case, it could have been in another instance. You could have also received penalty points and a fine if stopped by the gardai. If you are annoyed at your husband for crashing your car, just don't let him drive the next one and let him get the bus or walk.


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## Leo

unstacked said:


> Point is they settled and agreed a figure last week for the car.



The assessor would just have agreed the write off value of your car, that is not the same as an agreement to pay you that sum. The assessor rarely if ever has the authority to finalise a settlement. Had they actually settled, you would have had the cheque in your hand. Unfortunately for you, they are entitled to factor in all information they receive until the case is closed out.


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## ClubMan

ClubMan said:


> If you are not satisfied with the insurance company's handling of this claim then complain to them about it and ultimately get a final response letter from them then you can go to the Financial Services Ombudsman and make a complaint to them.
> 
> https://www.fspo.ie/
> 
> But, honestly, I'm sorry to say that I doubt that you have a leg to stand on there from what you've posted.


Just skimmed my own (Liberty) policy booklet and it has this section which, I imagine, is common to most or all policies (even if the punctuation is a bit odd here!):



> Disputes between you and us
> 
> You may refer any dispute between you and us about our liability for a claim or the amount to be paid to an arbitrator we both agree to, within nine months of the dispute arising.



It also has a "Duty of care" section which, I think, was mentioned by somebody earlier and which, among other things, says...



> You or any insured person must ...
> 
> ... make sure that the vehicle is kept in a roadworthy condition ...



I know that you seem to be arguing that the bald tyres in this case are irrelevant to the accident because the accident was caused by other factors (your husband's bad driving and the fact that his foot slipped off the brake pedal thus resulting in the brakes NOT engaging) but I'm not sure how much ice this will cut with the insurer.

Ultimately if you feel that you are not getting treated fairly then I have outlined two ways that you can pursue the matter.

Hope this helps.


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## DirectDevil

If the insurance company is going to repudiate liability under the contract they must justify their position.
I base this argument on a dictum from several years ago in the Supreme Court in Superwood -v- Sun Alliance and others.

I would ask the insurers for a detailed written decision with specific reasons for the proposed declinature of indemnity.
IMHO repudiating liability over the telephone is both unprofessional and lazy.

Much of the answer lies in the actual contract wording.
I see one Aviva product that is so specific as to make it a condition that tyres are maintained to the correct tread depth.
That strikes me as an unreasonable contract term for a person to adhere to with the absolute degree of strictness implied if the tyre depth was slightly off standard as distinct from being way off the mark. Curiously enough the specific condition covering this and related issues contains the preliminary phrase requiring the taking of *reasonable* steps to prevent loss and so on. So, which standards of contractual construction and interpretation are AVIVA seeking to apply within the one condition or different parts thereof ? Are they applying the reasonable standard or the absolutist (and arguably unreasonable) standard ?

Where OP goes from here depends on the specifics of the letter of repudiation which needs to be specific.


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## LS400

DirectDevil said:


> I would ask the insurers for a detailed written decision with specific reasons for the proposed declinature of indemnity.



How detailed a letter do you need... to state the obvious

Slightly off, a little more than slightly off, where do you draw the line. 

They tyres were not road worthy. This car should not have been on the road with tyres in this condition. There are a hundred ways of saying the same thing.

This is personal responsibility again, where we try to dilute the blame away from ourselves.

Anyway, most insurers will discount 25% of the claim per worn tyre, ie  4 tyres, 100% decline.


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## michaelm

If my insurance company said I wasn't insured due to tread depth I would argue my case if I did not believe that the tyres affected the outcome.  For example, if I didn't brake or if the road was dry.  Given that we pay 7% (was 5%) government levy I'd tell the 3rd party that my insurance company were refusing to pay and that they should claim from the MiBi.


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## cremeegg

LS400 said:


> This is personal responsibility again, where we try to dilute the blame away from ourselves.



The OP is not trying to "dilute the blame away" (sic). She knows she/her husband was at fault. 

That what we have insurance for. To pay out when we are at fault.


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## Dermot

What degree of fault would you attribute to the worn tyres ?.


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## Leo

Dermot said:


> What degree of fault would you attribute to the worn tyres ?.



If the policy is voided for failure to abide by the conditions, then fault doesn't enter the equation.


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## Leo

DirectDevil said:


> I see one Aviva product that is so specific as to make it a condition that tyres are maintained to the correct tread depth.
> That strikes me as an unreasonable contract term for a person to adhere to with the absolute degree of strictness implied if the tyre depth was slightly off standard as distinct from being way off the mark.



All tyres now have thread wear indicators, cross bars that mark the minimum thread depth. These are easy to assess, and all road users should check these periodically.


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## DirectDevil

LS400 said:


> How detailed a letter do you need... to state the obvious
> 
> Slightly off, a little more than slightly off, where do you draw the line.
> 
> They tyres were not road worthy. This car should not have been on the road with tyres in this condition. There are a hundred ways of saying the same thing.
> 
> This is personal responsibility again, where we try to dilute the blame away from ourselves.
> 
> Anyway, most insurers will discount 25% of the claim per worn tyre, ie  4 tyres, 100% decline.



To state the obvious ;

1. OP and insurer are in a contract.
2. Insurer argues OP is in breach of contract condition.
3. Insurer seeks to repudiate contract.
4. Stating a reason like the breach of a policy condition is a general statement.
5. Insurer needs to explain the exact facts relied on to ground the contractual repudiation.

If this went to court the insurers would have to present the evidence on which they seek to repudiate the contract.

Where do you draw the line ? 

That would start with the contract wording and the relevant evidence.
Some contract terms are so absolute as to be almost indisputable.
Some are modified by qualifying phrases.
You also have to consider the reasonableness of the contract terms and whether there is any legal ambiguity on which to argue contra proferentem ? 


Tyres were not roadworthy ?

Any quantitative and or legal reference on this as to what constitutes an unroadworthy tyre ?
I distinguish this point from the axiomatic issue of prescribed minimum tread depth.


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## jim

But if the OPs car was certified as roadworthy by the NCT and this was still in date then how can the OP be at fault? If you are getting your NCT done then arent you making sure your car is roadworthy. What else should one be doing (within reason and assuming there isnt an obvious problem with the car)?


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## RedOnion

jim said:


> But if the OPs car was certified as roadworthy by the NCT and this was still in date then how can the OP be at fault?


An NCT certificate proves the vehicle was roadworthy at the time of the test. Nothing more.


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## jim

Id say theres a fine line though between what is roadworthy and what isnt...if tyres are blatently crap then i coukd understand the insurance denying liab.if the tyres are reasonable then it seems unfair to me.

This is why its important that the insurance provides a formal report to the OP outlining why they deny liab. Its not sufficient to just verbally state it esp as the sum is significant


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## LS400

DirectDevil said:


> Any quantitative and or legal reference on this as to what constitutes an unroadworthy tyre ?
> I distinguish this point from the axiomatic issue of prescribed minimum tread depth.




Well, unless Im mistaken, a standard minimum thread dept was agreed upon by legislators at 1.6mm for general road users, as opposed to professional users, ie Taxis etc which is greater than 1.6mm. It either was at this limit, above, or below this limit.

Why do we need to dissect the very obvious, to the point of making a mockery of what all agreed to.

If your tyre is below 1.6mm at Nct examination and your car fails the test, do you protest that you have been unfairly treated, no you dont, because you accept this is a failure, an agreed safety measure for the protection for all concerned.

Yet when something like this, what has happened to the OP becomes reality, law books come out, and every angle is explored to try and avoid the very consequences of the inaction.

Now, if I were in court trying to diminish my responsibility of this subject post, I would like to have you DD in my corner protesting my innocence as your posts ave very informative and very well grammatically written, to the point of, this guy knows what he is talking about.

But, many qualified professionals are well versed in the dissection and reassembly of events, whether they are the actual events that happened, or what they want others to believe happened, is another thing.

What follows by above is also unfair, Im sure many have walked out of Court hard done by because unless you play games like above, the other side will contrive a completely different set of events, and while some situations need to be created to be believed, facts dont.

Was the tyre below the the agreed legal limit, Yes or No. Not nearly, or depending on the way you angle your head to view it.


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## Leo

jim said:


> Id say theres a fine line though between what is roadworthy and what isnt.



Most of the criteria assessed by the NCT, including tyres, have very clearly defined limits, any single criteria dropping below the minimum level results in the car failing to be regarded as road-worthy. 

With regard to their validation of road-worthiness, the NCTS do point out:



> The NCT is a check of basic requirements at the time of the test.  It assesses components which are visible and accessible. It does not replace or purport to replace your responsibility to ensure your car is roadworthy at all times or the regular maintenance that a mechanic needs to carry out on your car.


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## cremeegg

LS400 said:


> Now, if I were in court trying to diminish my responsibility of this subject post,



The OP is not trying to diminish her responsibility. She is trying to get the insurance company to pay out because of her responsibility. Thats what insurance is for.

If the OP was not responsible then she wouldn't have anything to worry about.

Car insurance is there to cover a drivers liability when the driver is at fault.

This "wonderful" insurance company sells insurance that will cover your liability when you are at fault EXCEPT it seems when you are at fault for having bald tyres, or who knows what other reason you might discover after you have had a crash.

What about if you are criminally at faulty for careless driving, will your insurance cover you then or have they some other opt out for that.

Many posters on here seem to think that motor insurance is there to protect innocent drivers i.e. those who are not at fault. That is simply wrong, motor insurance is there to pay for damage caused by drivers who are at fault, so that they do not have to pay themselves.

The law requires all drivers to have motor insurance. Not for the benefit of those who might need to make a claim, but for the benefit of those who might suffer from their fault.

Is it legal to sell motor insurance which does not include certain covers. Surely that defeats the point of the law requiring all drivers to be insured.


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## Palerider

The car had the Nct  in August 2018, the accident was in April 2019, the Tyres had 8 months more driving on them, this has nothing to do with the nct.

Appeal it internally as best you can, 

worn tyres are lethal in a wet road situation with added metres required to get stopped assuming you retain some control.


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## Leo

cremeegg said:


> This "wonderful" insurance company sells insurance that will cover your liability when you are at fault EXCEPT it seems when you are at fault for having bald tyres, or who knows what other reason you might discover after you have had a crash.



Do you think all other motorists should be subsidising those who drive substandard or dangerous vehicles? Every insurance policy comes with a clear set of terms and conditions that must be adhered to, if you fail to adhere to conditions such as maintaining the car in a road-worthy condition, then it's only right that your cover be reduced or withdrawn.



cremeegg said:


> What about if you are criminally at faulty for careless driving, will your insurance cover you then or have they some other opt out for that.



No, they do not! You can't insure against criminal liability. 



cremeegg said:


> Many posters on here seem to think that motor insurance is there to protect innocent drivers i.e. those who are not at fault. That is simply wrong, motor insurance is there to pay for damage caused by drivers who are at fault, so that they do not have to pay themselves.



I don't think that is what most people are saying, who has stated that? I would have expected most motorists would understand the difference between third-party and comprehensive cover being that the latter provides cover for your own losses in the event you are at fault.



cremeegg said:


> The law requires all drivers to have motor insurance. Not for the benefit of those who might need to make a claim, but for the benefit of those who might suffer from their fault.



The law requires third party insurance, this thread does not relate to a third party claim. Comprehensive cover is optional, and comes with many caveats. The insurance company will pay the claim of the other party here, and from the OP's contributions there does not seem to be any issue with that. If they can prove the OP was negligent in failing to maintain their vehicle in a roadworthy condition as per the terms of their agreement, they may well be entitled then to seek to recovery of those costs from the OP. 



cremeegg said:


> Is it legal to sell motor insurance which does not include certain covers. Surely that defeats the point of the law requiring all drivers to be insured.



Not sure what covers you mean here, but there is no law mandating any level of personal cover.


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## SparkRite

cremeegg said:


> What about if you are criminally at faulty for careless driving, will your insurance cover you then or have they some other opt out for that.





Leo said:


> No, they do not! You can't insure against criminal liability.



Ah, to be fair now Leo, yes they do and on the second point, yes you can and do.


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## Leo

SparkRite said:


> Ah, to be fair now Leo, yes they do and on the second point, yes you can and do.



Who provides cover for your own losses as a result of criminal activity?


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## cremeegg

unstacked said:


> Hi, my husband was driving my car last week and rear ended anot I was told that the whole matter is in question now as they are looking at not paying out at all because of the tyres... and if there are any third party damages they will be against me.
> 
> I dont have any money ...





LS400 said:


> If you contributed to this incident in anyway shape or form through negligence, how in all seriousness do you expect to be rewarded for this.



I don't expect the OP to be rewarded, I expect the Insurance company to make her whole, because she purchased insurance, against the risk that she might *through her own fault* damage her car.

Again insurance is for when you are at fault, you don't need it when you are not at fault.

For the insurance companies to split up the ways in which you can be at fault, damage caused by your careless driving (which is a criminal offence) is covered: damage caused by failure to maintain the car is not covered, in my opinion is underhanded.

People buy insurance in good faith, I am not sure insurance companies sell it on that basis.


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## MangoJoe

How is it a good thing that this person didn't even manage to brake before the moment of impact? What if he had hit 2-3 kids on bikes?

- It seems to me that failing to hit the brakes is being suggested as some sort of a mitigating factor in driving around with 3 bald tyres?!?!?

In my opinion every user on this site is at the greatest risk of suffering life-changing, devastating and traumatic injury through their ordinary, daily road use at the hands of dangerously incompetent drivers.

OP you have my sympathies that you're tied to a speeding, tail-gating, individual who's happy to drive unmaintained cars dangerously and at great speed in close proximity to innocent people without having the wit, intelligence and good judgement to stop said car during the course of normal traffic events…...

I see people like your husband driving in this fashion every day of the week and couldn't have less regard for them.


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## SparkRite

Leo said:


> Who provides cover for your own losses as a result of criminal activity?


Nobody AFAIK, but you have now changed the question that you answered above.
I never mentioned 'your own losses' , I was simply pointing out (re. cremeeggs question, "will your insurance cover you ...") that I disagreed with your answer to said question and that you are still covered whilst 'criminally' driving.


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## Leo

SparkRite said:


> Nobody AFAIK, but you have now changed the question that you answered above.
> I never mentioned 'your own losses' , I was simply pointing out (re. cremeeggs question, "will your insurance cover you ...") that I disagreed with your answer to said question and that you are still covered whilst 'criminally' driving.



Yeah, fair enough. I was focusing solely on the personal loss piece as this thread is only about the OP's own losses, there doesn't seem to be any issue with the 3rd party liability cover.


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## Palerider

As I said this has nothing got to do with the NCT.

It was suggested that passing the NCT should  ensure safety of Tyres but in this case the incident was eight months post test.


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## LS400

Cervelo said:


> This to me implies that the insurance company is not paying out at all, neither the policy holder nor the third party



1) The insurance will pay out for third party, there is no question of them not. They have done nothing wrong here. They may though look (unlikely though) to recover their losses from the OP. 

2) They (Insurance Company) would be quite within their rights to reduce comprehensive payment, if the tyres are found to be in un-roadworthy condition, and especially if they contributed to the accident resulting in an avoidable loss. They carry the risk, but in doing so, expect you to do your part in maintaining the vehicle to a roadworthy standard.


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## Seagull

cremeegg said:


> I don't expect the OP to be rewarded, I expect the Insurance company to make her whole, because she purchased insurance, against the risk that she might *through her own fault* damage her car.
> 
> Again insurance is for when you are at fault, you don't need it when you are not at fault.
> 
> For the insurance companies to split up the ways in which you can be at fault, damage caused by your careless driving (which is a criminal offence) is covered: damage caused by failure to maintain the car is not covered, in my opinion is underhanded.
> 
> People buy insurance in good faith, I am not sure insurance companies sell it on that basis.


Would you argue that the insurance company should pay out if the car had no NCT? Or if the driver was drunk? One of the requirements for your insurance to be valid is that the vehicle is maintained and roadworthy. Driving around with bald tyres is perfectly good grounds for the insurance company to reject a claim.


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## johnwilliams

could i jump in and ask a quick question ,does insurance companies have a tyre max age limit (how many years old)?


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## DirectDevil

Leo said:


> Yeah, fair enough. I was focusing solely on the personal loss piece as this thread is only about the OP's own losses, there doesn't seem to be any issue with the 3rd party liability cover.



Just a clarification if I may as this point does cause confusion.

Some acts of driving can be both simultaneously a criminal offence and a civil wrong (like the tort of negligence).
The insurers are indemnifying in respect of the tortious liability element and that is a contract which enjoys legality of purpose.

For example, D may be drunk, drive dangerously and smash in to another car. 
The insurers will provide indemnity in respect of the tortious act of negligence.


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## DirectDevil

unstacked, have you made any progress with Aviva on this issue ?


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## unstacked

DirectDevil said:


> unstacked, have you made any progress with Aviva on this issue ?


Sorry update - they didnt pay out for my car.  Third party claim for personal accident damages is coming against my insurance.  Even though I had Step Back and Bonus Protected - Insurance will greatly increase in October.  its all over now and I am taking it on board as an expensive lesson and obviously something that could have been much much worse than a written off car and bruised bank account.

This is the reply from Insurance:

"Please note we wish confirm that our investigations into policy cover are complete and regret to advise that we are not in a position to provide you with an indemnity in respect of this claim.

As previously advised your car was examined by an Independent Engineer following the collision it was noted on the engineers report that three of your tyres were below the legal limit. We further note that your husband has confirmed that it was raining & hail stoning on the day of the incident and therefore the road conditions were wet. This, together with the condition of the tyres greatly contributed to the accident.

As discussed, this constitutes a serious breach of your policy conditions:

The General Conditions of your motor policy state

Section 6 - Duty to take Care

You must take all reasonable steps to prevent accident, injury, loss or damage, and must keep your car in a roadworthy condition. While unattended, the car must not be left unlocked, or the keys to the ignition left with or in the car windows or sunroof left open. Personal belongings should be placed in the locked boot, glove box or closed storage compartment when your car is unattended. You must ensure that the car is kept in a roadworthy condition, which includes ensuring that the thread depth on your car tyres are within the legal limits and if required that your car has a current & valid National Car Test (NCT) certificate. You must ensure the car is properly compliant with all Road Traffic Legislation at all times. You must allow us to examine your car at any time.

Please note that you are in breach of the condition outlined above as your husband xxxxx   was driving with three of your four tyres below the legal thread depth at the time of the accident and therefore we are not in a position to indemnify you in respect of this incident.

We have informed our underwriters in relation to this. Please note that will not be making any offer of settlement in relation to damage to your own vehicle."


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## Brendan Burgess

unstacked said:


> You must ensure that the car is kept in a roadworthy condition, which includes ensuring that the thread depth on your car tyres are within the legal limits



That is crystal clear. 

I wonder how many people know this? 

I hope that they do renew your insurance for you. 

Brendan


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## Cervelo

Sorry but can you clarify if the insurance company are paying out for the third party claim??


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## Clamball

Thanks for coming back to do an update.  Greatly appreciated even if you still did not get a payout for your car.


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## SparkRite

Cervelo said:


> Sorry but can you clarify if the insurance company are paying out for the third party claim??



I take from this that they did :-



unstacked said:


> Sorry update - they didnt pay out  for my car. Third party claim for personal accident damages is coming against my insurance.


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## Cervelo

SparkRite said:


> I take from this that they did :-





unstacked said:


> Sorry update - they didnt pay out for my car.  Third party claim for personal accident damages is coming against my insurance.



I thought the same but then the OP quoted the reply from the insurance company which says



unstacked said:


> Please note we wish confirm that our investigations into policy cover are complete and regret to advise that we are not in a position to provide you with an indemnity in respect of this claim.



So are they covered in respect to the third party claim??


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## SparkRite

Cervelo said:


> I thought the same but then the OP quoted the reply from the insurance company which says
> 
> So are they covered in respect to the third party claim??



I'm sure the OP is,  else it would just make a mockery of motor insurance in its entirety.


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## unstacked

Cervelo said:


> Sorry but can you clarify if the insurance company are paying out for the third party claim??


As far as I know they are. I have had no correspondence since April.


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## unstacked

Clamball said:


> Thanks for coming back to do an update.  Greatly appreciated even if you still did not get a payout for your car.


Have to think it happened to prevent something much much worse happening...and  that is the only way to view it.  Even if car had an NCT for 7 months and was off the road for 3 of those 7...doesn't mean your tyres are ok.  Even though at the start I was fuming and blaming husband..I now count myself lucky...and own it.


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## DirectDevil

Thanks for the update.

There is confusion about a refusal of indemnity whilst simultaneously dealing with the third party claim.
The insurers are not indemnifying the OP in respect of the third party claim.
The insurers are dealing with the third party claim because they have to under statute.
This is a scenario where refusal of indemnity cannot deny a third party their entitlement to claim.  
Technically, the insurers could actually approach OP after settlement seeking recovery of their outlay on the third party claim.


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## DirectDevil

Brendan Burgess said:


> That is crystal clear.
> 
> I wonder how many people know this?
> 
> I hope that they do renew your insurance for you.
> 
> Brendan



The moral is that people must read and understand that colloquially termed "small print" and become aware of their contractual obligations.

It seems to me that wordings can vary between insurers.
I have a motor policy with a different company and it contains no such strictures beyond the more conventional one of requiring the policyholder to take reasonable precautions to keep the vehicle in good repair. There are certainly no severe limitations coming down to the level of detail quoted for that Aviva policy.

IMHO the Aviva contract wording seems very restrictive and unreasonable from the perspective of the reasonable customer. 
I still hold a lot of sympathy for OP on the merits.

An appeal to the Ombudsman perhaps ?


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## Brendan Burgess

I don't think that there is anything technical about it. 

From the very first post in the thread. 



unstacked said:


> if there are any third party damages they will be against me.


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## Brendan Burgess

DirectDevil said:


> The moral is that people must read and understand that colloquially termed "small print" and become aware of their contractual obligations.



I wouldn't consider that to be small print. 

But I do agree that people should be aware of their contractual obligations. 

Brendan


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## unstacked

DirectDevil said:


> Thanks for the update.
> 
> There is confusion about a refusal of indemnity whilst simultaneously dealing with the third party claim.
> The insurers are not indemnifying the OP in respect of the third party claim.
> The insurers are dealing with the third party claim because they have to under statute.
> This is a scenario where refusal of indemnity cannot deny a third party their entitlement to claim.
> *Technically, the insurers could actually approach OP after settlement seeking recovery of their outlay on the third party claim.*


Can you explain this further DirectDevil please?  Should I contact the insurance to get an update on the 3rd party claim?  At the time of accident, husband did not have own Ins on his car, he was named driver on mine, hence why the 3rd party claim is coming off my insurance etc


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## unstacked

Cervelo said:


> I thought the same but then the OP quoted the reply from the insurance company which says
> 
> 
> 
> So are they covered in respect to the third party claim??


I presume  'this claim' to mean my claim for car replacement - the 3rd party damages are a separate claim ???


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## DirectDevil

unstacked said:


> Can you explain this further DirectDevil please?  Should I contact the insurance to get an update on the 3rd party claim?  At the time of accident, husband did not have own Ins on his car, he was named driver on mine, hence why the 3rd party claim is coming off my insurance etc



Somewhere in the policy wording there is probably a condition that says that the insurer reserves the right to seek recovery from you of any outlays that they had to pay by virtue of law where they would otherwise not have had to pay.

This is on the basis that in certain circumstances if a motor insurance policy is inoperative the injured party will not be denied compensation. 
The insurance company that had "cover" on the vehicle will be obliged to pay the third party claim. 
As I recall it the technicality is that if there was a current certificate of insurance on the vehicle at the time of the accident that insurance company must deal with any third party claim as what is known as the "insurer concerned".
The policy condition then gives them the right to seek to recover that outlay from you on the basis that they had to pay solely because of law.
Whether they would actually seek recovery from you is a different matter.

To answer your other point the third party is not actually claiming from your insurance because your insurance is actually inoperative for this accident. The third party is actually claiming from your insurance company as if the insurance company was acting for the Motor Insurers' Bureau.


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## DirectDevil

unstacked said:


> I presume  'this claim' to mean my claim for car replacement - the 3rd party damages are a separate claim ???



The third party claim and the claim for damage to your own vehicle are indeed separate claims.


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## DirectDevil

mathepac, the core point I make is that the obligations imposed by the Aviva wording seem to be very onerous for the average reasonable person.
Not everyone actually has the facility of punctilious precision even though they may be reasonable and diligent about care of their vehicles.
However, on a "strict constructionalist" approach to contractual interpretation your are entirely correct in your endorsement of Aviva's position.
Having read a number of motor insurance contracts over the years it does seem to me that Aviva's terms are very tightly drawn comparatively but we will just disagree on that.

BTW, on another point, are you a fan of Richard Shakespeare's Henry VI ? i.e. "The first thing we do, let's kill all the lawyers".


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## unstacked

DirectDevil said:


> Somewhere in the policy wording there is probably a condition that says that the insurer reserves the right to seek recovery from you of any outlays that they had to pay by virtue of law where they would otherwise not have had to pay.
> 
> This is on the basis that in certain circumstances if a motor insurance policy is inoperative the injured party will not be denied compensation.
> The insurance company that had "cover" on the vehicle will be obliged to pay the third party claim.
> As I recall it the technicality is that if there was a current certificate of insurance on the vehicle at the time of the accident that insurance company must deal with any third party claim as what is known as the "insurer concerned".
> The policy condition then gives them the right to seek to recover that outlay from you on the basis that they had to pay solely because of law.
> Whether they would actually seek recovery from you is a different matter.
> 
> To answer your other point the third party is not actually claiming from your insurance because your insurance is actually inoperative for this accident. The third party is actually claiming from your insurance company as if the insurance company was acting for the Motor Insurers' Bureau.


April letter 1 states...in the event of third party claims ...Aviva reserve the right to pursue me or my husband for full recovery of all outlay incurred in respect of my liability for such third party claims  on foot of that obligation.
Letter 2 a claim for vehicle damage and injury has been made against you (me) by the claimant arising out of the incident.  We are attempting to resolve the claim..we shall let you know the final outcome....

Both letters in April...haven't heard from Aviva since.

Will Aviva pay out and my Bonus Protection kick in?....


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## DirectDevil

unstacked said:


> April letter 1 states...in the event of third party claims ...Aviva reserve the right to pursue me or my husband for full recovery of all outlay incurred in respect of my liability for such third party claims  on foot of that obligation.
> Letter 2 a claim for vehicle damage and injury has been made against you (me) by the claimant arising out of the incident.  We are attempting to resolve the claim..we shall let you know the final outcome....
> 
> Both letters in April...haven't heard from Aviva since.
> 
> Will Aviva pay out and my Bonus Protection kick in?....



Straight answer - I don't know.

There is a possible argument that Bonus Protection will operate on the basis that you have not received an indemnity under the policy in the normal sense. This could be argued as not being a claim under the policy. However, it remains to see what Aviva actually do with your renewal.


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## unstacked

DirectDevil said:


> Straight answer - I don't know.
> 
> There is a possible argument that Bonus Protection will operate on the basis that you have not received an indemnity under the policy in the normal sense. This could be argued as not being a claim under the policy. However, it remains to see what Aviva actually do with your renewal.


Renewal date 31st Oct, should hear from them soon. Worried now I'm going  to get a huge bill for damages because insurance wouldn't cover costs


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## unstacked

Renewal is €1295. No discounts allowed by Aviva. Because the claim is open. Bonus Protection & Step Back have no affect on Aviva hiking my insurance up because claim is open. No one else will insure me either for same reason. If claim closes mid year- won't get any rebate.


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## DirectDevil

unstacked said:


> Renewal is €1295. No discounts allowed by Aviva. Because the claim is open. Bonus Protection & Step Back have no affect on Aviva hiking my insurance up because claim is open. No one else will insure me either for same reason. If claim closes mid year- won't get any rebate.



Slightly puzzling if indemnity was declined under your policy and they have also stepped back or removed your NCD.
If indemnity was refused it occurs to me that there was actually no claim under the policy *as distinct from Aviva's statutory or other legal obligations to pay third party claims.*

On the issue of renewal it occurs to me that you were probably fortunate to obtain a quote.
As far as I know there is no obligation on insurers to offer renewal of annual contracts like motor insurance policies.


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## Brendan Burgess

Agree with DD that you are lucky to get a quote at all.



unstacked said:


> Bonus Protection & Step Back have no affect on Aviva hiking my insurance up because claim is open.



I don't understand this bit. Are they saying that if the claim had been closed that you would benefit from Bonus Protection and Step Back?

This is what the Aviva website says: 


*Step back No Claims Discount*
If you make a single claim or one arises against you during any period of insurance, we will reduce your No Claims Discount in the following intervals:
- A 50% discount is reduced to 20%,
- A 40% discount is reduced to 10%,
- A 30% or less discount is reduced to 0%.
So if your original discount was 30% or less, then they would be right to reduce it to 0%.  

Brendan


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## DirectDevil

And there is the issue.

Indemnity was refused under the contract.
How can Aviva simultaneously say that NCD is reduced in consequence of a claim under the policy ?

The third party claims will not be dealt with as a claim under the policy.
The third party claims will be dealt with in consequence of legal obligations outside of the policy (as "insurer concerned" I think.)
By definition, the refusal of indemnity affirms that there can be no claim under the policy.
Ergo, how can Aviva deal with OP as if this was a valid claim under the policy ?

As mentioned previously, Aviva may have rights to attempt to obtain reimbursement from OP for the paid claims but that is a distinct issue.


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## Luternau

Does this not fall under the "have you had any accidents, claims or convictions"  line of questioning? 
Even an incident that no indemnity was provided will change the assessment of the risk going forward.


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## unstacked

My premium is increased from 555 last year (bonus protected and step back ) to 1295 this year (BP and SB). 
My NCB was not reduced this year 
Still at 5yrs.
I have no discretionary discounts available to me to reduce the premium.
Because claim is 'open.
Aviva say average claims stay open for is 1.5yrs.
No one else will insure me because claim is open.
With all the protection, your NCB stays but they still hike premium up


DirectDevil said:


> And there is the issue.
> 
> Indemnity was refused under the contract.
> How can Aviva simultaneously say that NCD is reduced in consequence of a claim under the policy ?
> 
> The third party claims will not be dealt with as a claim under the policy.
> The third party claims will be dealt with in consequence of legal obligations outside of the policy (as "insurer concerned" I think.)
> By definition, the refusal of indemnity affirms that there can be no claim under the policy.
> Ergo, how can Aviva deal with OP as if this was a valid claim under the policy ?
> 
> As mentioned previously, Aviva may have rights to attempt to obtain reimbursement from OP for the paid claims but that is a distinct issue.



"By definition, the refusal of indemnity affirms that there can be no claim under the policy."
Should I attempt to fight this dirtdevil?


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## Brendan Burgess

unstacked said:


> My premium is increased from 555 last year (bonus protected and step back ) to 1295 this year (BP and SB).
> My NCB was not reduced this year
> Still at 5yrs.



Can you show the actual figures e.g. 

Last year 
Premium: €1,000 
NCB: 50% 
Net premium €500 

This year
Premium: €2,590
NCB: 50% 
Net premium €1,295

Brendan


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## Brendan Burgess

unstacked said:


> "By definition, the refusal of indemnity affirms that there can be no claim under the policy."
> Should I attempt to fight this dirtdevil?



No. Luternau explained it. 

The term "no claims bonus" is a misnomer. It should be a "no accident bonus". 

An accident where you were not covered is still an accident. 

Brendan


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## DirectDevil

Luternau said:


> Does this not fall under the "have you had any accidents, claims or convictions"  line of questioning?
> Even an incident that no indemnity was provided will change the assessment of the risk going forward.



Those considerations would indeed apply to the renewal of a policy or the seeking of cover elsewhere as they are material facts.
Aviva have notice of the material facts here so that is not an actual issue.

The sub-issue arising is that of Aviva's increase in premium.
unstacked has now clarified that the NCD was *not* reduced. Therefore,  Aviva seem to be in order on that specific point.

What now remains is for Aviva to explain to OP why the premium has been increased.


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## unstacked

Update since last time:
Have paid 3rd party costs.( vehicle, tow etc ) 
Claim will be closed
My insurance record will be clear. 3rd party not taking injury claim thankfully..(.I would have that to pay too and simply don't have that kind of money.).


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## Cervelo

Well done, I'd say that has lifted a lot of stress that you've been carrying around for the last few months
Now going forward, don't let your husband near your car


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## Seagull

Has closing the claim reduced the insurance renewal?


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## unstacked

Cervelo said:


> Well done, I'd say that has lifted a lot of stress that you've been carrying around for the last few months
> Now going forward, don't let your husband near your car


Absafrigginlootely right !!


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## unstacked

Seagull said:


> Has closing the claim reduced the insurance renewal?


Waiting on the documents to be finalised on the finance side.  When I get these I can shop around.  Will post my findings here.


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## SparkRite

Just bear in mind @unstacked , while *you* may be claim/accident free,  hubby is not accident free. 
Just in case you are thinking of adding him as a named driver to any future policies.


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## DirectDevil

SparkRite said:


> Just bear in mind @unstacked , while *you* may be claim/accident free,  hubby is not accident free.
> Just in case you are thinking of adding him as a named driver to any future policies.



Careful now.....

If OP is the car owner she has had a claim made against her.
Any claim like this is actually a claim against both the vehicle owner and the vehicle driver.
If proceedings had issued the owner and the driver would have both been joint tortfeasors and appeared as co-defendants.
The principle is that the driver would be regarded as the owner's agent for whose negligence the owner would be rendered vicariously liable.


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## SparkRite

DirectDevil said:


> Careful now.....
> <snip>
> Any claim like this is actually a claim against both the vehicle owner and the vehicle driver.



Yeah, I thought I had heard something along those lines before..........nasty isn't it?


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