More car insurance claims are denied in South Africa because of this clause
Data from the Ombudsman for Short Term Insurance (OSTI) shows that an increasing number of road accident insurance claims are being rejected and disputed based on the ‘reasonable care’ clause in insurance policies. ‘assurance.
In fact, OSTI recently ruled in favor of an insurer, where an adjuster calculated the insured was driving above the regulated speed, said George Herbst, senior partner at Barnard Attorneys.
“OSTI justified its decision by stating that the insured was reckless because if he had obeyed the speed limit, he would have been in a better position to assess the condition of the road.
“OSTI rightly points out that the insured has a duty not to act recklessly and that the test of recklessness is largely a subjective test. Thus, it is up to the insurer to prove this recklessness, and to do so, he can rely on objective evidence.
Insurers’ recent and growing reliance on digital downloads of motor vehicle data to validate claims is helpful in many circumstances, but insurers should be warned to be careful not to rely solely on such data to reject claims. claims based on the reckless behavior of an insured driver. , Herbst said.
“First, the insurer must ensure that the person downloading and interpreting the data is a bona fide expert and that the data extraction and methodology for arriving at conclusions about the insured’s driving behavior are credible and verifiable.
“It is generally not sufficient for an insurer to rely solely on vehicle data if no knowledge is taken of the physical scene, traffic conditions, time of the accident and other physical factors. . In addition, the insured’s level of experience and typical driving behavior are factors to consider.
A growing problem encountered in claims is that some experts who upload the data for insurers usually refuse to share the actual data upload with the insured, which prevents the insured from analyzing and using their own expert. to verify and validate the information and to comment on it, Herbst said.
This makes it nearly impossible for policyholders to have a fair engagement on the issue, he said.
“The methodology is to be tested in South African courts, while in some foreign jurisdictions it has already been probed. Those who find themselves in these situations are always advised to consult their attorneys for assistance as arguments regarding these situations are often technically and legally complex.
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