Can Highway 2000 operator be liable for some types of accidents?

Cedric Stephens, Contributor

Question: I have insured my vehicle with one company for many years. I had an accident in 2009 for the first time in 11 years. Initially, it was my fault. My vehicle got out of control during rainfall on Highway 2000 after it hit a sinkhole. I crashed into the divider wall on the soft shoulder at about 2:15 p.m. The front of the vehicle was damaged. Another vehicle stopped to assist. Both vehicles were parked on the soft shoulder parallel to the divider wall. Persons in the other vehicle helped me to call a wrecker. The rain which had stopped resumed. As a result, we went into our separate vehicles. A Honda motor car ran into the same sinkhole and hit the two parked vehicles. The Honda's insurance ended at 10:22 a.m. that same day. I have had to pay the excess for the damage to my vehicle which amounted to $150,000. It has been over 19 months since the accident and my insurer has still not collected or sued to recover from the third party the financial losses that I suffered. We are insured with the same company. Can I sue the third party to retrieve my money or my insurance company?

R.T., Kingston 7.

Answer: The Financial Services Commission(FSC) - the regulatory body that supervises the pensions, securities and insurance industries - hosted an exposition (or show, to use a word that ordinary folks like you and me who don't have LLBs, LLMs, MBAs, PhDs or similar labels prefer) last week. Its theme was "Financial Planning: Pathways to Success." I carefully studied the information the FSC published in this newspaper to support its EXPO2010. I wanted to see if its writings provided any pearls of wisdom to help me to help you recover the money that you spent last year as a direct result of the events on Highway 2000. I had no success.

Is the regulator's strategy to carry out its mandate "to promote public confidence in and understanding of the operations of (the insurance industry)" by using an expo and a newspaper feature the most effective way to realise its goals?

A very trustworthy source in your insurance company gave me useful information. She wrote: "The third party is also insured with (us), but on the same day as the accident, he cancelled the insurance on the (Honda) Acura and substituted it with another vehicle. (He) said that he was not aware that he caused (another) vehicle to hit into (yours). He has paid for the damage to the (other person's) car. (The other insurer has) confirmed that the vehicle (they insure) was pushed into yours. We will communicate this. If no positive response is received, we will have our attorney write to him."

Two Accidents, Two Excesses

Your vehicle was involved in two separate collisions. The accidents occurred within minutes of each other. The first took place while you were driving. The second event happened while you were sitting in your vehicle awaiting the arrival of the wrecker when it was struck by another vehicle and/or the Honda, which you said also ran into the sinkhole. You and, possibly, the operators of Highway 2000, I believe, were the cause of the first crash. The driver of the Honda and, possibly, the operators of Highway 2000, I believe, were responsible for the second. Because there were two separate accidents, you would have had to bear two deductibles (or excesses), not one.

What The Toll Road Act Says

Sections 16 and 17 of the Toll Road Act, 2001, provide the clues why I think the operators of the roadway were partly responsible. Section 16 imposes a general duty on that entity "to maintain the toll road in good repair and condition and in accordance with sound engineering and operating practices". Section 17 is more specific. It says, in Subsection (4): "Every person who uses any part of a toll road which is closed to traffic does so at his own risk and the concessionaire shall not be liable for any injury, loss, or damage sustained by that person." It seems clear to me, even though I do not have a law degree - as I wrote before - that the presence of a sinkhole on the roadway at the time of the two accidents suggests that it was not in a state of "good repair". Further, provided that the roadway was not closed to traffic when the collisions occurred, the operators would be unlikely to escape some measure of legal responsibility.

It is also likely that you and the other driver, depending on the speeds at which the two vehicles were travelling before they hit the sinkhole, the visibility, and condition of the tyres of the vehicles, were partly to blame. Experts say that drivers should adjust the speed of their vehicles based on road conditions.

Can you sue your insurers or the third party to retrieve the money you spent? The answer will depend on a careful analysis of all of the facts and the evidence that you have. I have discussed my opinion with an employee in the insurer's claims department. Do the same.

I sincerely hope that I have given you an insight into some of the issues associated with the practice of motor insurance in the real world. I also pray that you are now on the road to recover the $150,000, plus what you spent.

Cedric E. Stephens provides independent information and advice about the management of risks and insurance. If you need free information or counsel to help you solve a problem, write to The Business Editor or contact Mr. Stephens directly at aegis@cwjamaica.com. You can also send him a text (SMS) message at 812-7233.