The recourse claim of the insurer: a contestable claim?

In a previous blog, we elaborated on the right to compensation of road traffic victims. Reference was made to the legal obligation to take out liability insurance for motor vehicles. As a result, only motor vehicles are allowed on the public roads if the civil liability to which they may give rise is covered by an insurance policy.

However, the question arises whether having insurance means that the driver of a vehicle will never have to pay for the damage himself?

The answer to this question is nuanced.

If there is a legally valid insurance policy in force prior to the claim in question, the insurer cannot refuse to compensate the injured person. However, the insurer may, after compensating the injured person for the loss, make a recourse claim.

A recourse claim allows the insurer that has compensated the injured third party, under certain conditions, to take recourse against the policyholder and/or the insured for the reimbursement of the amount paid out. This right of recourse is provided for in Article 152 of the Act of 4 April 2014 on insurance.

In order for the insurer to be able to make a recourse claim, the following conditions must be satisfied:

  • The insurer has to prove that the insured or policyholder is in a situation exhaustively listed by law. Thus, recourse may be taken if the insured caused the damage in a state of drunkenness[1]under the influence of narcotics, on purpose, etc.
  • The insurer shall inform the policyholder and/or the insured of the intention to make a claim on account of recourse. The lodging of the claim should take place as soon as the insurer is aware of the facts that justify this recourse claim. The purpose of the (timely) notification of the intention to institute a recourse claim is to enable the person against whom it is directed to prepare his/her defence in full knowledge of the facts.

It is up to the insurer to prove that it fulfils the conditions for making a recourse claim.

Does a successful recourse claim imply that the insured/policyholder has to repay the full amount?

The amount of the recourse claim is limited by a statutory ceiling as stipulated in Article 44 of the Minimum Terms and Conditions of Insurance Contracts covering Compulsory Motor Vehicle Liability, annexed to the Royal Decree of 5 February 2019:

  • If the insurer's payments are less than or equal to € 11,000.00, the recourse is full.
  • If the benefits amount to more than € 11,000.00 and less than € 51,000.00, the recourse shall be limited to € 11,000.00, whereby this amount shall be increased by half of the amounts that exceed € 11,000.00.
  • If the payments are more than or equal to € 51,000.00, the recourse is limited to € 31,000.00.

In other words, instituting a claim of recourse is not an easy task for the insurer. Since the recourse claim is often supported by the criminal conviction, it is extremely important for the insured that a thorough defence is conducted at this level as well. After all, a conviction for intoxication and an acquittal for the drunkenness charge can make an essential difference to the success of the recourse claim. For the insurer, it is essential that it is adequately demonstrated that the legal conditions for making a recourse claim have been met.

[1] Recourse is available in cases of intoxication, but not in cases of intoxication. Intoxication is measured by a breath analysis and/or blood test, whereas drunkenness is assessed on the basis of external signs (vomiting, not walking straight, not being able to talk, etc.). Drunkenness is more severely punished by the Road Traffic Act.