Insurers want to deprive auto lawyers who make money from payments under compulsory motor liability insurance from a piece of bread by prohibiting the client from going to court until the claims are considered by the insurance company. If the corresponding bill passes, insurers will be able to avoid fines and legal costs, and at the same time delay the resolution of disputes.

Thanks to the decision of the Supreme Court to extend the law on the protection of consumer rights to compulsory motor liability insurance, auto lawyers now have enough not only for bread and butter, but also for much more
Photo: Leonid Storozhev, Kommersant / buy photo

ELENA KOVALEVA

As Dengi has learned, the Russian Union of Auto Insurers (RUA) is now preparing a bill that will change the procedure for considering litigation under compulsory motor liability insurance. “To ensure that insurers and RSA do not incur additional legal costs, the union is developing amendments to the law on compulsory motor liability insurance to introduce a mandatory claims procedure, in which the policyholder will settle losses in court only if he was unable to resolve the issue directly with the insurance company,”— Pavel Bunin, head of the RSA, told Denga. According to current legislation, if the contract or the relevant law does not stipulate the procedure for resolving disputes, then the creditor has the right to go directly to court, bypassing the insurer.

With new amendments to the law on “automobile insurance”, RSA intends to fight against lawyers who outbid clients for claims for insurance compensation. “What is happening now: the victim, without even receiving the payment, conducts his own independent examination and goes to court. In most cases, this is done by the so-called auto lawyers. Or, regardless of what payment the victim receives, auto lawyers, using an assignment agreement, send claim to the court, they use the conclusions of their independent expertise. For example, almost all losses in Voronezh go through this technology. The courts in most cases decide in favor of auto lawyers,” says Deputy General Director of SK MAKS Viktor Alekseev.

The claims procedure will oblige any citizen and organization to first file a claim with the insurance company, receive an official response and a possible proposal for reconsideration, and only after that the victim or his representative will have the opportunity to go to court. “I assure you, the majority of citizens will agree to adjust the amount of payment, which will save insurance companies from legal markups and costs. This means that the situation with unprofitability, the dynamics of which sharply increased in 2012, can stabilize,” Viktor Alekseev is sure.

But the Confederation of Consumer Societies (ConfOP) believes that this initiative does not bode well for citizens: “If they want the client to first submit a claim to the insurer, then this is unnecessary red tape for the client. If a person has another 30 days to consider the claim, then he’ll just give a damn and repair everything himself,” says Dmitry Yanin, chairman of the board of ConfOP.

According to RSA estimates, about 90% of legal payments come from clients who do not contact the insurer at all, but go straight to a legal intermediary. “He pays the minimum amount to the car owner upon entry, and then takes on the insurer,” they say at RSA. However, a similar picture is not observed among all insurers. In Alliance, for example, “a total of 20 percent of all cases are transferred under the assignment agreement.” “The rest of the clients who do not agree with the amount of the insurance payment simply hire lawyers to help or go to court themselves. The share of those clients who go to court directly, bypassing us, that is, without even presenting the car to us for inspection, is small, less than 5 %,” said Andrey Antokhonov, Director of Motor Liability Insurance at Alliance Insurance Company.

According to Dmitry Yanin, citizens, in fact, have no other choice: “It’s difficult, to put it mildly, to come to an agreement with an insurance company. And our judicial system is structured in such a way that only a few can win cases without the help of a lawyer. That’s why people are forced to turn to help legal companies. And it doesn’t matter how exactly the injured citizen and the legal company interact - whether they sell their claims or not. The main thing is that the consumer achieves his goal and is able to repair the car with the proceeds."

Source of the problem

A wave of lawsuits hit insurers after the resolution of the plenum of the Supreme Court of the Russian Federation (SC) “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights” was issued in the middle of last year. It extended the scope of the consumer protection law to insurance relations. Therefore, citizens were able to recover from insurers, in addition to full compensation for damage, also moral damages and a fine in the amount of 50% of the damage. In addition, for each day of delay in payment, consumers were able to demand a penalty of 3% of the payment.

Another important change is that citizens have the opportunity to file claims at their place of residence, and not at the place of registration of the insurer, and not pay a state fee. As a result, insurers' payments in court increased by one and a half to two times.

Law firms helping citizens deal with payments under compulsory motor insurance and motor insurance have begun to grow like mushrooms throughout the country. Finding them is not difficult. The Internet is full of advertisements; on the websites of auto lawyers you can read many stories about how insurers are trying to get out of payments and what comes of it after going to court with the help of an experienced lawyer.

The cost of legal support in cases under compulsory motor liability insurance is on average 10-20 thousand rubles. depending on the volume of services provided. Lawyers are ready to take on your case without any advance payment, but for a percentage of the amount won. For comprehensive insurance, prices are higher - up to 30 thousand rubles. For a fee, lawyers even promise to speed up the process of transferring the awarded money to the applicant.

Insurers claim that up to 30% of payments under compulsory motor liability insurance are the result of court decisions. “In our company, legal payments already account for about 25% of all payments under compulsory motor liability insurance. And the dynamics, unfortunately, are positive,” confirms the Alliance. The RSA compensation fund also suffers from this, which, according to insurers, is about to be depleted due to a wave of insurance companies leaving the market. As Pavel Bunin reported, “as of March 18, the total volume of compensation payments to the RSA amounted to 18.272 billion rubles, of which payments by court decision accounted for more than 2.5 billion rubles, which is 13.7% of the total.”

One of the arguments of insurers in favor of refusing to apply the law on the protection of consumer rights in terms of compulsory motor liability insurance to them is the non-market method of setting tariffs in this type of insurance. “That is why insurers cannot take into account increased payments in insurance rates,” notes RSA. In addition, “according to the law on the protection of consumer rights, a consumer is a party to a contract, therefore, he cannot be a victim,” the RSA clarifies. Viktor Alekseev shares the same opinion: “The law on the protection of consumer rights, in fact, cannot apply to compulsory motor liability insurance. The insurance company does not have a contractual relationship with the victim, so in principle it cannot violate his rights. The opinions of the courts on this matter are different, in some regions the decision is made in favor of the insurers, in others - in favor of the victims. And this circumstance indicates the urgent need to provide an unambiguous interpretation of the approaches.”

Everything can change

In the draft law on compulsory motor liability insurance submitted to the Duma, the first reading of which was again postponed, insurers managed to make additions, according to which, in particular, the law on the protection of consumer rights will not apply to the “motor citizen”. However, as both insurers and deputies unofficially admit, it is too early to rejoice. By the second reading the bill will be significantly revised. It will not be possible to completely exclude compulsory motor liability insurance from the sphere of influence of the law on the protection of consumer rights. However, it is assumed that the two most terrible norms for insurers may still change by the second reading. The fine, which currently amounts to 50% of the claim amount, is planned to be tied to the refinancing rate (8.25%). In addition, the penalty will not be charged at the rate of 3% for each day of delay in payment, but at the rate of 1/75 of the refinancing rate. And if RSA’s proposals to introduce a claims procedure for challenging insurance payments under compulsory motor liability insurance in court are accepted, then the insurers’ costs could be significantly reduced.

If the insurance community can get all of these proposals adopted, auto lawyers will have to focus on voluntary insurance. The consumer protection law will continue to apply to motor insurance. In addition, a month ago the Supreme Court made another gift to citizens by issuing a “review of certain issues of judicial practice related to voluntary insurance of citizens’ property.” In it, the Supreme Court, in particular, noted that the market has developed heterogeneous judicial practice in resolving legal disputes. He ruled, firstly, that the popular refusal among insurers to pay for comprehensive insurance due to the failure of the policyholder to provide a title, or a vehicle registration certificate, or a set of keys, or a vehicle inspection certificate does not exempt the insurer from paying compensation for the theft of a vehicle. Secondly, insurers are obliged to compensate for damage even if the insured car was driven by a person not included in the policy. Thirdly, damages must be compensated without taking into account wear and tear. In addition, the loss of the marketable value of transport, according to the decision of the Supreme Court, is real damage and is subject to compensation under a comprehensive insurance contract, even if the terms of the contract exclude the loss of marketable value from coverage.

However, despite the position of the Supreme Court, last week the cassation instance of the arbitration court considered legal the clause in the rules of comprehensive insurance in the VSK company, which provides for payment taking into account wear and tear in the event of total damage to the car. As a result, VSK was able to challenge the half-million fine of the Federal Financial Markets Service for not bringing its rules into compliance with the law.

"Auto Citizen" with a claim