The plaintiff signed a motor vehicle insurance contract with a property insurance company of the defendant on June 25th, 2004, and the insurance period was from June 30th, 2004 to June 29th, 2005. On June 3, 2005, the plaintiff's friend (with a driver's license) was driving the plaintiff's BMW, and the car chassis was damaged due to stones on the road. On June 4th, 2005, the insurance company assessed the damage of the car and determined that the repair value of the damaged part was 6 170 yuan. After that, the plaintiff carried out maintenance in BMW 4S shop, and the actual maintenance cost was 1 1268 yuan, and the inspection cost was 150 yuan. The plaintiff demanded compensation according to the actual repair cost, and the defendant only agreed to pay compensation according to the fixed damage value, thus causing disputes between the two parties. The plaintiff originally appealed to Yuhuatai District People's Court in Nanjing, demanding that the insurance company compensate for the repair cost of 1 1268 yuan and the inspection cost of 150 yuan, totaling 165438 yuan.
Lawyer's representative
Lawyer Zhang Taizhong is the attorney of the plaintiff in this case. Lawyer Zhang's opinions are as follows:
I. On the effectiveness of the list of damages unilaterally made by the defendant:
1 cannot be legally binding. According to the "Administrative Measures for Property Price Appraisal in Jiangsu Province", only qualified institutions and personnel can engage in price appraisal, and they should also avoid it when they have interests with the parties to the case. In this case, the insurance company, as a party, has a direct interest in this case, and can't provide evidence to prove that it has corresponding qualifications and qualified employees, but it clearly violates the above provisions to determine the car damage items and maintenance prices by itself, so the so-called list of fixed damage items has no legal effect.
2. There is no agreed effect. At the same time, only one repair item in this list was approved by the plaintiff, but the plaintiff did not approve other repair costs and repair methods. However, the defendant imposed all the damage assessments made unilaterally on the plaintiff, which obviously could not be binding on the plaintiff.
Second, the understanding of article 20 of the car damage insurance clause.
The clause reads as follows: "An insured vehicle damaged by an insured accident shall be repaired as far as possible. Before the repair, the insured shall check with the insurer to determine the repair items, methods and expenses through consultation. Otherwise, the insurer has the right to re-approve or refuse compensation. " Based on this, the defendant believes that after the accident, the plaintiff should negotiate with the defendant to determine the repair point. If it is not repaired at its recommended repair point, it will not pay the repair cost beyond the fixed damage range. The agent believes that the defendant's defense is neither reasonable nor legal.
First of all, Article 31 of the Insurance Law stipulates: "When there is a dispute between the insurer and the applicant, the insured or the beneficiary, the people's court or the arbitration organ shall make an explanation in favor of the insured and the beneficiary." The plaintiff believes that Article 20 of the vehicle damage insurance clause only stipulates that both parties shall "jointly inspect" the vehicle before repair, but does not explicitly stipulate that both parties shall unanimously determine the repair point. According to the defendant's logic, it is up to him to determine the damage assessment, what to pay and how much to pay, otherwise he has the right to "refuse to pay". This dual role of being both an athlete and a referee is obviously unreasonable.
Secondly, Article 40 of the Contract Law stipulates: "If the party providing the standard clause exempts its liability, aggravates the other party's liability or excludes the other party's main rights, the clause is invalid." The purpose of the insured is to be able to claim compensation in the event of an insured accident that meets the requirements of the policy. The defendant wrote in Article 20 of the standard terms of car damage insurance that "otherwise, the insurer has the right to re-approve or refuse compensation", which obviously excludes the other party's main rights, so this clause is even invalid.
In other words, the defendant's wishful defense, whether based on emotion, reason or law, is untenable.
The plaintiff has the right to choose a repair shop, and the repair expenses incurred shall be borne by the defendant.
1, the insurance contract stipulates that you can choose a repair shop. Article 25 of the car damage insurance clause stipulates: "After the insured accident occurs, the insured can negotiate with the insurer to determine the repair items, methods and expenses of the insured vehicle, and can choose a repair shop or a repair shop recommended by the insurer for repair." The BMW insured in this case is a high-grade commodity. As the owner of the car, the plaintiff chose BMW 4S shop and professional repair shop Nanjing Ningde Automobile Service Co., Ltd. (hereinafter referred to as Ningde Company) to repair the damaged car according to the above agreement. Its repair behavior is reasonable and understandable.
2. Code of conduct for repairing cars of maintenance enterprises. As an automobile maintenance enterprise, Ningde Company issued a formal invoice and a detailed list of working hours and material expenses after repairing the damaged vehicles, and its maintenance behavior fully complied with the relevant regulations of the automobile maintenance industry. The defendant also approved the project of vehicle repair and replacement.
3. The insurance contract has a clear agreement on compensation. Article 22 of the Car Damage Insurance Clause stipulates: "The insurer shall compensate in the following ways: when some losses occur, the compensation shall be calculated according to the actual repair cost." Now the plaintiff requests the defendant to accompany him according to the actual repair cost, and the defendant shall make compensation according to the contract.
To sum up, the agent believes that the facts of this case are simple and clear, and the basis for compensation is clear and sufficient. The defendant shall, according to the provisions of the law and the contract, fully compensate the plaintiff for the actual losses within the scope of the insurance amount.
court decision
After trial, the court held that the focus of the dispute in this case lies in the criteria for determining the amount of insurance claims. It is believed that in order to solve this dispute, the following two problems must be determined: First, how to determine the amount of the insurance company's loss? The court held that no matter from the procedure or conclusion of loss determination, the insurance company's loss determination violated the formal requirements stipulated by law, which was arbitrary and lacked basis; Second, how to understand Article 20 of the Car Damage Insurance Clause? The court held that the insurance company's loss list could not be used as the basis for claims settlement, whether it chose to make an invalid judgment or to make a statement against the defendant.
The final judgment of the court is as follows: the insurance company compensated the plaintiff for the vehicle repair fee 1 1268 yuan and the performance test fee 150 yuan at one time, totaling 165438 yuan.
Postscript of handling a case
This case is universal and typical. During the trial, many news media in Nanjing conducted live coverage. Almost all of Mr. Zhang's agency opinions were adopted by the court, which also shows that the lawyer's grasp of the facts of the case and legal understanding are thorough and accurate. In fact, in real life, there are many cases similar to this case. For example, powerful departments such as banks, telecommunications, railways and electric power are both "athletes" and "referees" from time to time, which requires us not only to dare to defend our rights, but also to be good at defending our rights, take up legal weapons and safeguard our legitimate rights and interests.
If you want to know more about insurance, you can go to >> "Raise more fish and talk about insurance" for free consultation!