Suppose you have had one glass too many after a night out and get involved in an accident. Unfortunately, you are liable for the accident, so the insurer of the other vehicle involved will not compensate you.
Fortunately, you have an omnium insurance policy, but is your omnium insurance required to compensate you for the damage? Especially when you were steering in a state of punishable alcohol intoxication or drunkenness?
We offer the answer to this question in this Wanted Fact.
The policy conditions of omnium insurance
In the policy conditions of your omnium insurance policy, the insurer will often stipulate that above a certain percentage of alcohol, the cover lapses, and therefore they do not have to pay for the damage. In most contracts, the percentage is 0.5 or 0.8 pro mille, but insurance companies are free to choose which percentage they include in their policy conditions. However, if the insured can prove the absence of causal link between the state of intoxication and the accident, it can claim coverage.
In other words, if you have been drinking, the omnium insurer will not compensate your damage unless you can prove that the accident was in no way caused by you having had too much to drink.
The causal link
The burden of proof is not so simple. In fact, it is easier to provide positive proof of the causal link between alcohol intoxication and an accident than negative proof.
However, this burden of proof, regarding the causal link, has evolved over the years through some Court of Cassation rulings.
In 2007, the Court of Cassation ruled that the clause, which places the burden of proof of the absence of causal link between the intoxication and the claim on the insured, creates an imbalance between the rights the duties of the parties (Cass. 12 October 2007, C.05.0520.F).
Consequently, the Court of Cassation ruled that the exclusion clause was void and that it was up to the insurer to prove a causal link between the alcohol intoxication and the accident.
Moreover, the Court of Cassation ruled in 2016 that such clause, which excludes coverage in case of alcohol intoxication or drunkenness, is not an exclusion clause but a lapse clause. The Court considers drunk driving by the insured as a shortcoming. This makes article 65 of the Insurance Law applicable. This stipulates that there must be a causal link between the shortcoming and the claim. In addition, it is up to the insurer to prove the causal link between the alcohol intoxication and the claim (Cass. 11 February 2016, C.15.0180.N.).
This decision of the Court is especially beneficial for insured persons. If the Court had held that it did constitute a ground for exclusion, no causal link would have to be shown. The mere fact that the insured is in a state of alcohol intoxication would then be enough for the insurer to refuse coverage.
Conclusion
So when your omnium insurer refuses to provide cover, they must clearly justify why they refuse. Merely citing that you were drunk is not enough.
The insurer must indeed prove, on the one hand, that you were in a state of alcohol intoxication, but also, on the other hand, that the accident was due to this. So this is the causal link that must be shown.
Only if the insurer can prove the causal link, between drunk driving and the accident, only then may it refuse coverage.
Need more specific info?
Contact Wanted Law!