"Hit-and-run" refers to the behavior of the parties to a road traffic accident who drive or abandon their vehicles to escape from the scene of the road traffic accident in order to avoid legal investigation. When escaping after a traffic accident, the insurance company's third party liability insurance generally takes refusal to pay compensation as an exemption. However, in practice, if the insurance company fails to fulfill the obligation of prompting the exemption clause, it should still be liable for compensation.
Case introduction:
2017 February 18 at 22: 24, Wang moumou drove a small car with the brand Lu Cxxxxx west to east along the central route of Boshan district. When overtaking in front of China Pacific Insurance Company on Zhongxin Road in Boshan District, it collided with an electric car driven by Yu Moumou (Zhao Moumou) driving in the opposite direction, causing injuries to Yu Moumou and Zhao Moumou and damage to both cars, resulting in road traffic accidents. After the accident, Wang abandoned the car and escaped, and was seized the next day. It was confirmed by the accident of Boshan Brigade, the traffic police detachment of Zibo Public Security Bureau: Wang was mainly responsible for the accident, and Yu was secondary to the accident. The small car Lu Cxxxxx has taken out compulsory motor vehicle third party liability insurance and commercial insurance in Zibo Central Branch of China United Property Insurance Co., Ltd. (hereinafter referred to as China Property Insurance Company). Yu Moumou sued the court for compensation for various losses of 6.5438+0.4 million yuan, and Zhao Moumou demanded compensation for various losses of 654.38+0.65438+0.0000 yuan.
Judgment result:
Judgment of the first instance: China Property & Casualty Company compensates certain losses within the compulsory insurance and the three risks: 13 104 1 yuan; China Property & Casualty Company compensated Zhao for various losses of 99,623 yuan within the scope of compulsory insurance and three-person insurance;
Judgment of second instance: the appeal was dismissed and the original judgment was upheld.
Controversy focus:
Whether the insurance company has fulfilled the obligation of prompting and explaining the exemption clause of hit-and-run
The insurance company believes that Wei Moumou insured in the name of Zibo Boshan Unicom Automobile Service Center, and Unicom Service Center stamped the insurance application form, so the insurance company has fulfilled its obligation of prompting and explaining to the insurance agent. Article 10 of the Supreme People's Court's Judicial Interpretation of Insurance Law (II) stipulates that the insurer takes the prohibitive provisions in laws and administrative regulations as the exemption reasons for the exemption clauses of insurance contracts. If the insured, the insured or the beneficiary claims that the clause is invalid on the grounds that the insurer has not fulfilled its obligation of explanation after the insurer prompts the clause, the people's court will not support it.
The plaintiff and the applicant believe that the business scope of Zibo Boshan Unicom Automobile Service Center is passenger taxis, and it is not qualified for professional insurance agency business. Therefore, the validity of the commercial three-insurance contract for the vehicle involved depends on the ratification of the insured. The defendant ratified the contract in the form of payment, so the insurance contract is legal and valid. Wei Moumou's ratification of the contract does not mean that the defendant China Property Insurance Company exempts the defendant Wei Moumou from the obligation to prompt and explain the exemption clause. Therefore, the defendant, China Property & Casualty Company, still has to fulfill the obligation of prompting and explaining in accordance with the relevant contracts.
The court of first instance held that:
Although Zibo Boshan Unicom Automobile Service Center insured the defendant China Property Insurance Company for the third party insurance of automobile business named Lu Cxxxx, the business scope of Zibo Boshan Unicom Automobile Service Center is passenger rental, and it does not have the qualification of professional insurance agency business. Therefore, the validity of the commercial third party insurance contract for the vehicle involved depends on the ratification of the insured. The defendant ratified the contract in the form of payment, so the insurance contract is legal and valid. Commercial third party insurance belongs to property insurance, and its insurance benefits are generally those enjoyed by motor vehicle owners or legal owners. According to the law, the motor vehicle owners and managers who have entered into an insurance contract with the insurer and have the obligation to pay the insurance premium according to the contract are the insured. In this case, Zibo Boshan Unicom Automobile Service Center has neither actual control nor business interests over the vehicles involved. It is neither the owner nor the manager of the vehicles involved, and it is not qualified as a professional insurance agent. Therefore, Zibo Boshan Unicom Automobile Service Center purchases insurance for many vehicles, including those involved, which is similar to a "group purchase" behavior. When insured, the payment invoice issued by the defendant China Property Insurance Company to the defendant Wei Moumou clearly recorded that the owner and the actual payer were the defendant Wei Moumou, which can prove that the defendant China Property Insurance Company knew that the actual owner of the vehicle was the defendant Wei Moumou. Therefore, the defendant China Property Insurance Company's obligation to prompt and explain the exemption clause should not be fulfilled by Zibo Boshan Unicom Automobile Service Center, but by Wei Moumou, the owner who enjoys the insurance benefits and pays the insurance premium. The second defendant, China Property Insurance Company, failed to fulfill its obligation to prompt and explain the exemption clause to Wei Moumou. At the same time, Wei Moumou's ratification of the contract does not mean that the defendant China Property Insurance Company exempts the defendant Wei Moumou from the obligation to prompt and explain the exemption clause. Therefore, the defendant, China Property Insurance Company, still has to fulfill the obligation of explanation in accordance with the relevant contract. China Property & Casualty Company failed to fulfill the obligation of clear prompt and explanation to Wei Moumou in accordance with the law, so the defendant China Property & Casualty Company should compensate him within the limit of commercial third-party insurance.
The insurance company refused to accept the appeal.
The court of second instance held that:
Commercial tripartite insurance does not require the insured to be the owner or manager of the insured motor vehicle, as long as it has insurable interests in the insured motor vehicle, so Unicom Center is the insured. According to the provisions of Article 10 of Judicial Interpretation of Insurance Law (II) of the Supreme People's Court, if the insurer takes the prohibitive provisions in laws and administrative regulations as the exemption reasons of the exemption clauses in the insurance contract, it will take effect only by fulfilling the obligation of prompting to the insured, and it will no longer have the obligation of clear explanation. Escape is a legal exemption. If an insurance company can prove that it has fulfilled the obligation of prompting the insured Unicom Center according to law, it can be exempted from liability according to law, otherwise it should be liable for compensation within the scope of the three insurances.
In this case, the policy receipt provided by China Property Insurance Company shows that the insured Unicom Center received the commercial three-insurance policy on April 12, 2065438. However, the policy of the commercial third party insurance involved shows that the time for fee confirmation, insurance confirmation and policy printing is 201April 6 13, that is, the commercial third party insurance involved is charged and insured on April 20 13, and the corresponding policy is also printed on 20 16. Although China Property & Casualty Insurance was interpreted as a clerical error, it failed to provide evidence to prove that it had fulfilled its obligation to remind the insured of the exemption clauses specified in Item 1 and Item 2 of Paragraph 1 of Article 24 of the Commercial Third Party Insurance Clause, and should still bear the liability for compensation in this case.
Judgment of second instance: the appeal was dismissed and the original judgment was upheld.
Lawyer Sun Baohua suggested:
An insurance company shall perform the obligation of prompting for the exemption clause of hit-and-run and fail to perform the obligation of explanation. Those who fail to fulfill the obligation of prompting shall still be liable for compensation.
In this case, although the insurance company bears the responsibility of insurance claims, the perpetrators should not take chances, and the criminal responsibility caused by traffic accidents will pay consequences.
Lawyer's suggestion: After the accident, we should actively rescue the injured, report the case and receive treatment.
Lawyer profile: Sun Baohua, a full-time lawyer of Shandong Bogang Law Firm, has served as a legal consultant for many governments and enterprises 19 years, engaged in traffic accidents, criminal defense, economic disputes and other cases. He has rich experience and skills in handling traffic accident cases. Tel (WeChat with the same number) 13070602009