ADVISORY COLUMN: INSURANCE No redress for the powerless

Insurance Helpline, With Cedric Stephens

Question: I was involved in an accident on February 7, this year. I was driving from Claremont to Moneague. It was about 7:15 p.m. On reaching the Moneague main road, I signalled that I planned to turn right. I was going to pick up my daughter. The traffic was moving slowly. As I turned and was almost across the roadway, a vehicle came from behind, overtook other cars and collided with the right side of my car. I suffered injuries, but they were not serious. The passenger escaped injury. The driver of the other vehicle was a police officer. He appeared to be drunk. When other police came on the scene, I asked for a breathalyser test to be administered. I was told that the test was unnecessary as no one was killed. My insurers are now telling me that the third party's insurers are saying that I should bear 60 per cent of the cost of the claim and they will stand 40 per cent. What a wicked act! The cards appear stacked against me because the third party is a policeman. Can you help?

- L.G., St Ann's Bay PO, St Ann.

HELPLINE: Vehicle owners paid J$12 billion to insurers last year to obtain coverage for cars, trucks, buses and other means of transport. Some of that amount was to pay for insurance that is required by The Motor Vehicles Insurance (Third-Party Risks) Act.

The law was passed over 70 years ago. It was to compensate persons who were injured, or whose property was damaged in accidents. The system, which was set up by our former colonial masters, was supposed to be fair and run efficiently for the benefit of the society as a whole.

How well this system functions should be of interest to citizens in general, accident victims like you, and also to elected officials.

Persons from all parts of the society are killed or injured in motor-vehicle accidents. The social and economic costs amount to billions of dollars each year.

When was the last time that you heard an MP making a passionate statement in Parliament about the problems in the system; the burden that is borne by citizens as a result of the problems; criticisms about the performance of the insurance industry and the regulator or, more important, suggesting ideas for improvements?

Disgrace

Are the operations of JPS and the recently issued report into the Manatt-Christopher 'Dudus' Coke extradition issue the only things that affect 'poor people' in this country?

It is a disgrace that the third party's insurers should blame you for the collision.

This is especially after the rubbish that was dished out to you by the second 'squaddie' about the breathalyser test. The breath-testing equipment is used to find out if the blood-alcohol level of a driver is above the legal limits.

The test is applied to find out if drivers are legally drunk. The fact that no one was killed in your collision was simply an excuse by one policeman to avoid charging another colleague with drunken driving.

Decisions about blame in motor- vehicle accidents should be based on details and evidence.

The opinions of insurance-company employees, if not founded on facts, are irrelevant in determining liability. The Jamaican Learner Driver's Guide would be regarded as an authority on the subject of overtaking. This is what it says: "Passinbg another vehicle on the road requires care, skill and patience. Accidents in these circumstances are frequently caused by the imaptience on the part of the driver of the overtaking vehicle. The conditions of over-taking are:"

First, see the road ahead is clear for a great-enough distance to for a great-enough distance to permit the car to complete the act and then to draw again to the left side. Second, make sure that there are no other vehicles coming from behind to prevent the operation. If the driver has any doubts that these two conditions are fulfilled, it is wiser not to overtake. Never overtake at a road junction, a corner or bend" (pages 11-12).

The Jamaican Road User's Guide says the same thing, almost word-for-word. It also advises drivers to "overtake on a straight stretch of road" (page 41).

The third source of my information is found in sections 162 to 169 of The UK Highway Code. This code is very rich in details. It provides advice about what drivers should and should not do when overtaking.

Here are a few extracts from it that our home-grown experts have not discussed:

1) take extra care at night and in poor visibility when it is difficult to judge speed and distance;

2) stay in your lane if traffic is moving slowly in queues;

3) do not overtake where you might come into conflict with other road users, for example, approaching or at a road junction;

4) do not overtake where traffic is in a queue at a road junction; and

5) do not overtake when a road user is indicating right, even if you believe the signal should be cancelled; do not take risks, wait for the signal to be cancelled.

All three sources share one thing in common. They place the burden on the driver of the overtaking vehicle to take steps to ensure that it is safe to overtake before attempting to do so. Much of the advice that is listed is what reasonable drivers would do in the ordinary course of things. It is in this general context that I have found the actions of your insurers and those of the third party to be unacceptable. They ought to know better than to blame you for the accident.

Send a copy of this article to your insurers and ask them to explain why you should accept most of the blame, given the facts of the case and the police report. If the matter is not satisfactorily settled within the next 21 days, consider hiring a claims professional to negotiate a settlement or, find a good lawyer.

Cedric E. Stephens provides independent information and free advice about the management of risks and insurance. Email: aegis@cwjamaica.com. SMS/text message to 812-7233.