Preserving the integrity of centuries-old insurance ideals

Question: An accident occurred between a taxi driver and me in September as I tried to negotiate a landslide around a bend along Race Course Road. You wrote about this on October 3. When I went to renew my policy, the premium had gone up by 110 per cent - from J$79,000 to J$166,000. The third party, who you and I agree was at fault, is insured with the same company. His claim amounted to over J$100,000. This amount was to fix the right front light and fender of his 1999 Nissan Sunny. The company agreed to pay it and gave me 14 days to contest its decision.

The estimate for repairing the right fender and front door of my 2008 Suzuki SX4 was J$245,624.85. Is there any justice for persons like me? I am very upset that my insurer did not take the road code, road, and weather conditions into account before deciding liability.  Can you do anything to help me?

- rickangel_74@yahoo.com

HELPLINE: The United States Supreme Court decided in 'German Alliance Insurance Co vs Lewis, Superintendent of Ins. of the State of Kansas, 233 US 389', nearly 100 years ago, that the insurance business is "clothed with public interest".

State insurance codes there impose a duty "on all concerned (the insured, insurers and their representatives) .... to preserve the integrity of insurance".

One of the guiding principles in English law - which governs insurance practice in Jamaica - on which this type of business is founded, expressed similar ideas to those of the US Supreme Court, at least two centuries before, in the Latin phrase uberrima fides (the utmost good faith).

Your insurer is either unaware of these ideals, or ignores them in the way they have handled your claim.

Not surprised

I am not surprised that these time-honoured rules were ignored, or that you have ended up being the victim of this collision. As you may recall, I wrote: "... Could it be that the robot taxi owner/driver and certain Jamaica Constabulary Force members are engaged in a plot to blame you for the accident? If the plan succeeds, the taxi owner/driver could save nearly J$250,000, avoid prosecution, and retain the use of his vehicle. The law-enforcement officers could also benefit - under the table. You, on the other hand, are likely to end up the loser in what appears to be a three-card scam!"

It turned out much better than I had imagined. He collected a bonus of over J$100,000, which will come directly out of your pocket.

I sent a copy of your email and my previous article to a senior official at your insurer's Kingston office and posed a series of questions. The official replied that your premium rose from J$85,729 to J$151,824, an increase of 77 per cent.

In explaining why they adjudged you to be at fault, here is what they said:

" ... The accident occurred around a corner, therefore the third party approaching from the opposite direction (the taxi driver) would have been unaware of an oncoming vehicle. Unfortunately, we cannot prove it, as she states that he was speeding or operating a 'robot taxi'. As the driver encroaching on the Third Parties (sic) side of the road, she has a greater duty to ensure that it is safe to proceed. This, along with the fact that the police statement indicated she was at fault led to the claims department's decision to name Ms ... at fault."

The company has not disclosed whether it sought information independent of you, the third party, and the police report - like accident reconstruction - and physical evidence to verify the accuracy, or otherwise, of the written statements about how the collision actually occurred.

The actions that you took when you recognised the hazards - stopping, evaluating the situation, proceeding cautiously while continuously sounding the car horn - were ignored by your insurers.

Why hasn't the company provided full details of the other driver's statement and the police report? The Mandeville claims person, the police, and the insurance company official in Kingston discounted the local bible on driving, The Jamaican Road User's Guide, without any explanation.

Can they cite any other authorities to support their position or decision to ignore it? The company concluded that because you had encroached on the right side of the road that "you had a greater duty to ensure that it was safe to proceed ... ." Why have they ignored the prevailing road conditions and your statement that the horn of your car was continuously being sounded as you made your way around the corner? In the absence of additional information, their argument does not make any sense.

Your claim was not properly handled. That error resulted in a significant increase in your renewal premium. In an effort to preserve the integrity of insurance, I plan next week to give the company a final opportunity to address all of the issues that are raised in this article and to reply to my specific questions. Keep your fingers crossed.

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