Can my omnium insurance refuse cover if someone else causes an accident with my car under the influence of alcohol?
Imagine: after working hard and saving for a long time, you can finally buy your dream car. Because of the high cost, you decide to take out an omnium insurance policy, which covers you against damage that would be caused by your own fault or negligence.
A few weeks later, you lend the car to a friend (which is allowed under the insurance contract) so that he can go pick up his girlfriend from the airport. However, he ends up in a ditch on the way back, resulting in heavy damage to your car. Afterwards, it turns out that he was behind the wheel with a glass too many to drink.
You go to your omnium insurer, but he refuses to provide cover for the damage to your vehicle. He justifies this on the basis of a clause in the terms and conditions of the insurance contract signed. This states that cover is excluded if the driver causes an accident under the influence of alcohol, where the alcohol concentration exceeds 0.8 promille in the blood or more than 0.35 milligrams/l of exhaled alveolar air.
The insurer will not budge. Even though you state that you were not driving yourself and that your friend did not know that the damage would not be insured if he caused an accident while drunk.
But is this even possible? Can your omnium insurer deny you coverage as an insured if you were not the driver in an accident caused under the influence?
The answer is almost always no.... Although nuances are sometimes possible. We discuss this in this Wanted Fact.
The difference between an exclusion of cover and a lapse of cover
First of all, you need to distinguish between an exclusion clause and a lapse clause in an insurance contract.
You can compare the assessment of an exclusion to the work of the bouncer at a party: if you do not comply with the terms or dress code of the evening, you will not get in (read in our case: you will not get insurance cover). This is purely about defining the application of cover within the agreement. What is insured and what is not?
In the case of a lapse , you have already got inside the party and are already dancing, but you do something wrong that causes the bouncer to still throw you out. So, in insurance terms, you were covered by the insurance contract, but due to a clearly defined mistake or negligence, you lose that coverage.
Well, that last example just goes to show that the clause in the insurance contract we are looking at here is a lapse clause.
You are covered, but if you, the driver, have an excessive alcohol level when causing a claim, you lose that cover.
Although the insurer often interprets the clause it has about the accident in state of alcohol intoxication as an exclusion of coverage, this is not really the case, rather it is a lapse of coverage.
By viewing some situations as cases of exclusions, rather than lapse clauses (which they really are), the insurer is trying to escape a more difficult burden of proof that meets it otherwise.
The personal nature of gross misconduct
Only when the insurer succeeds in proving the causal link between the damage and the insured's fault can it escape compensation for the damage. So suppose you yourself were driving under the influence of alcohol (with a concentration of more than 0.8 promille) and parked your car in the ditch, the comprehensive insurer will most likely not have to compensate your damages.
However, the insurer cannot be obliged to provide cover to the person who intentionally caused the loss or, by analogy, to the person who caused the loss through gross negligence or misconduct. It follows from this, in the opposite sense, that if the insured did not commit the fault himself, the insurer must provide cover.
The thing that is special about the story is that the insurer therefore has to prove not only the link between the gross fault in itself (the alcohol intoxication) and the damage (the accident), but also the fact that you, the insured, committed this fault personally.
Indeed, both the intentional element and the gross misconduct have a personal character. Thus, in our example, the excessive alcohol concentration as gross misconduct must also be personal in nature for the insurer to refuse coverage. Therefore, if that fault was not committed by the insured, the insurer will have to pay out.
Conclusion
Thus, as applies to wilful misconduct, even in cases of gross misconduct, the insurer is only released from its obligations to the person who committed the gross misconduct himself.
In other words, your comprehensive insurer does have an obligation to compensate you as the insured person, who was not the driver (under the influence of alcohol) at the time of the accident, for the damage suffered. So your insurer will indeed have to reimburse you for the damage to your hard-earned new car.
However, the insurer, in turn, is entitled to recover this amount from the person who caused the accident.
Did you experience a similar situation? Is your insurer refusing to pay?
We will gladly advise you what your options are and assist you appropriately!