Would love your thoughts on a current claim we have had a declinature on.
Our client has arrived at their work site where they have parked across the driveway due to a Ute and trailer being parked in the actual driveway. The client was dropping off a few supplies for the job and only intended to run in and out as they had to move on to another job, and they have left their keys in the vehicle, with all windows wound up which are tinted.
However, when they have gone inside an employee has asked them questions and during this time of 5-10 minutes their vehicle has been stolen from the drive way. There were other tradies working in the driveway who didn't realise a stanger had jumped into the vehicle and taken it.
The insurer has declined the claim on the basis of believing that the client did not take reasonable care. We are curious to your opinion on this, as we believe this is a moment of lapse in judgement and they should be given the benefit of the doubt in this instance.
CROSSLEY GATES REPLIES...
The issue here is whether the insured has been merely negligent (covered) or reckless (not covered).
Determining which side of the line the insured is on requires a close analysis of all the facts. The greater the value of the item stolen and the smaller the effort required by the insured to avoid the theft, the quicker a court will be to find the insured was over the line and reckless. Another factor is whether the vehicle remained in the insured's line of sight the whole time. I will assume it didn't.
Here, the effort required by the insured to remove the keys from the ignition and take them with him was minor compared to the loss arising from the theft of the vehicle. Leaving the keys in the ignition when the vehicle can no longer be watched also counts against the insured.
I believe a court would probably side with the insurer and hold it was reckless. There is an English case where the owner of a Porsche left the keys in the ignition of his car when he went to pay for gas at a gas station, when the car was driven away by a thief. There is a New Zealand case where a pizza delivery driver left the keys in the ignition when he delivered a pizza to a house which involved him in losing sight of his vehicle, and it was driven away. In both cases, the court found the insured reckless.