Ask an Expert

QUESTION:

A commercial client of mine has a Vehicle Fleet with approx 20 vehicles insured.

In December 2020, one of their staff was driving home on a Friday evening, having stopped at a friends house for dinner and a few drinks. On his way home, he hit some loose gravel on the road surface and lost control of the van, ending up colliding with a fence post. After gathering his thoughts and checking the vehicle over to ensure it was still safe to drive, he carried on home and reported the incident to our clients on the Monday morning.

Their Company policy is to report any accident immediately. However, the driver didn't do this as he's been with the company for 13 years, is a senior staff member and didn't want to disturb our client over the weekend, when the vehicle was driveable, albeit a little bit scraped & dented. 

Driver has been interviewed by our client & their HR team and line manager on four different occasions and the story is believable and accepted. He has been cautioned about the non-reporting but that is it.

Late February 2021 (3 months later), the insurer has put an investigator on the claim due to the circumstances and they are now intimating that the claim will be declined due to the following exclusion:

Broker Policy Wording

(v) being driven by any person who:

• is under the influence of any intoxicating substance or drug; or

My question is - what level of proof does the insurer need to be able to decline a claim on this basis? 

Can they decline on the 'balance of probabilities'? 

There has been no Police Report, no breath-testing nor blood tests taken and i'm very concerned that the insurer has intimated that they have a 'chart that sets out the approximate level of blood/alcohol' based on what someone has allegedly eaten and drunk over a period of time. Although based on science, it would / could never produce an exact measurement. I would have thought that to decline a claim, they'd actually have to have proof that the policy terms had been breached....rather than on a balance of probability?

We do have the option of invoking the Invalidation clause if needed, but our client is not keen on this, as they are supportive of their driver/employee and his version of events.

Would very much appreciate comment from those in the know?


Crossley Gates replies:

The onus is on the insurer to prove the exclusion applies. As any court proceedings are in a civil court, the standard of proof required is on the balance of probabilities - in other words, it is more likely than it is not that the exclusion applies. Some objective evidence is required, obviously, to get to 51%. The courts don't operate on supposition.

It is correct that a scientist can work backwards, adopting the most generous position in favour of the insured, to calculate what the least the blood/alcohol level would have been, based on volume of alcoholic drinks consumed and food eaten beforehand.

Your client must have given this information to the investigator (which the insured is entltled to insist on). From memory, based on scientific evidence, the courts have accepted that at a blood/alcohol level of 50 (legal limit being 80) a person is under the influence.

I suggest your client asks the insurer for a copy of the scientific report (or whatever other evidence) it is relying upon, if it has not already done so to see what it says.



June 2021

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