VIC Can an insurance chase the other uninsured party?

Discussion in 'Insurance Law Forum' started by 457Visafraud, 3 October 2019.

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  1. 457Visafraud

    457Visafraud Well-Known Member

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    Ok car accident here, it was too long to write in the title.
    I'm the uninsured party and I believe that I'm not at fault.
    The other party is insured and she made a claim through her insurance company.
    They contacted me and read the script, she said I was at fault bla bla bla.
    I denied the fault and told them that I'll chase their client directly.
    I understand that I'll have to do this through the Magistrate Court (no more small claims court in Victoria for road accidents) after a letter of demand will fail.
    Can her insurer legally make a decision regarding who is at fault and chase me for damages?
    Can I chase the other party directly and avoid dealing with the insurer?
     
  2. Zerojay

    Zerojay Well-Known Member

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    Before taking action through the Magistrates Court, and if you are getting nowhere with the insurance company, a better option may be to seek independent review by the Australian Financial Complaints Authority (AFCA). This is a free service available to you with AFCA’s determination binding on the insurance company but not binding on you. In other words, if you don’t like AFCA’s determination, you can reject it and then commence legal proceedings.

    Also whilst the matter is under review by AFCA, the insurance company cannot undertake any recovery action against you.

    There is a set process to be followed.
    First step is to advise the insurer in writing that you are disputing their decision and wish to go through their dispute resolution process and if they do not change the decision you will then refer to AFCA.
     
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  3. 457Visafraud

    457Visafraud Well-Known Member

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    The woman has been misleading and hiding vital information to the insurer that she thinks I'm not aware of.
    I think she used the insurance trick so it doesn't cost nothing to her and she tried the good luck.
    The insurance asked me to draw the accident and to make a statement but I refused because I felt like they could use anything I said against me also I'm holding informations that I could use in a court case.
    And they already told me that "our client said you're at fault" even so, well I can't say much because this is a public forum.

    So I'm not a Lawyer but I think, I got no business with the insurance and they provided me no service while the woman owes me money so I sue her.
    I think the insurance might repair the other party's car (depending on what kind of cover she got) or they just wait and try to recover money first from me?
    I got a jack that the insurance is not aware of because their client has told (intentionally) a distorted version of what happened, most probably she was helped in this task.

    So is the insurance "lawfully" able to pursue the money from me? If so I'm not scared to go to court (all my notes are ready) also is less work for me instead of filling all these forms.
    Let it be, but they most probably will try the debt collector silly game (because these guys are unemployed and work on a no recover no fee scheme) to find out that there is nothing they can grab from me.
     
  4. Zerojay

    Zerojay Well-Known Member

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    The insurance company can seek recovery from you if her policy has covered the damage to her car. There is a legal principle called subrogation that applies to these situations and the insurance company can take over the policyholders right of recovery.
    If you sue her you will still have forms to complete and have no guarantee of success especially if there are different versions of the facts and no witnesses?

    Your choice of course, but I would try the free AFCA option first. Also you should provide your accident statement and diagram and receive her statement and diagram from the insurance company. This is expected process and nothing to worry about. Your information may convince the insurance company or AFCA that you are right.

    I stress that I do not give legal advice, just my opinion based on working for an insurance company for many years. I am now retired.
     
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  5. 457Visafraud

    457Visafraud Well-Known Member

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    "The doctrine (of subrogation) is not administered as a legal right, but as a principle that is applied to serve the ends of justice and to do equity".

    So an insurance company gets paid premiums and takes its risks (or gamble) in case a motorist has an accident so if no accident occurs, the insurance gets the money free and no one is prized.
    But when an accident occurs, the insurance wants to recovery the money they "gambled" on?
    I don't want to argue with what you said but this abrogation thing sounds to me like a corporation acquired rights, I didn't order them to gamble on their money.
    Anyway, I believe this thing will take time while the insurance most probably will sell (another gamble) this matter to a "desperate" no recovery no fees debt recovery agency.

    That is right but I only have to fill the Form 8A "notice of defence".
    You're right again, but I know the woman is lying to the insurance and she sent them after me because it's free and she might get the car repaired while the insurance fights me.
    But I have a piece of information I believe she thinks I don't have that she is hiding to the insurance but I'll use it if we go to the court.
    Why I'm doing this? That woman is trying to give me hard time and trying to have her car fixed for free at my expenses, also I'll have to fix my car too.

    Unfortunately the incident occurred in a place overlapping the Victoria and the New South Wales states so I'm waiting Police answer from both states.
     
  6. Rob Legat - SBPL

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    I think you're looking at this in a slightly skewed manner. The woman is not 'sending [the insurer] after you', the process doesn't work like that. What is probably the case:
    - Accident occurs.
    - Woman holds a policy of comprehensive insurance, so she makes a claim. As part of that claim process (assuming its covered by the insurer), via the doctrine of subrogation, any right of action for damages in respect to the accident is transferred to the insurer. In shorthand, this is because her damages have been rectified and the insurer is now bearing the damages. They have the right, as the 'injured party', to attempt to pursue the other party (i.e. you) in place of her. This process is a fundamental aspect of insurance. Without it, insurance just wouldn't work.
    - The insurer gets to determine what to do about the potential claim against you. They could absorb it if they so chose, or they can sue you. Sending a debt collector is relatively pointless. All you have to do is disclaim liability and tell them to sue you or leave you alone.

    If you sue her, she'll just send it to the insurer to deal with; as I'm assuming her insurance will have coverage for the damages you'll be able to claim.

    And, for the record, you'll need more than a 'Form 8A Notice of Defence'. To 'sue her', I assume you'll need to no only defend the claim against you by also file a counter-claim and pay whatever filing fees are applicable. I say assume, as I'm not familiar with the particulars of Victorian civil procedure - but that is the standard method.
     
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  7. 457Visafraud

    457Visafraud Well-Known Member

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    I said that because of the way she told her story plus hiding an important piece of information (that I'll use in a court case) to the insurance case so she is taking advantage of a free service and trying to get away with her mistake.
    I've no idea about how smart are these people working in the insurance but I had the impression that they relay on what their client said.
    There is a hand drawing by the driver which "presumes" that she was well out of a side street when I arrived at high speed and crashed with her car and so by telling the insurance that I didn't see her.
    The drawing doesn't show what happened but her car in the side street with her "intention" of going to the main street.
    I already told them that I do not agree with their decision so I believe later on they will start pursuing for the damage so I'll tell them to send the case to the court.
    I said that to replay to the previous user that if they sue me, I'll only have to defend with the form 8A.
    But then you are right because I need to counter sue, in the mean time I'm suing them, a bit complicate isn't?
     
  8. 457Visafraud

    457Visafraud Well-Known Member

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    Update: As I'm uninsured the AFCA will pay a damage up to $10,000 upon I provide the required information to them AND they decide that I'm not at fault.
    I just wonder what will be the relation between the other party and her insurance company once they discover that she was holding vital information and lying to them also I really wanted to see her red face in a Magistrate Court plus to pay Court costs, interests, expenses etc. etc.!
     
  9. Scruff

    Scruff Well-Known Member

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    Won't change a thing. It's your word against hers - and given that you withheld vital information as well and didn't co-operate with the insurer at all, you shouldn't be throwing stones.
     
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  10. 457Visafraud

    457Visafraud Well-Known Member

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    Maybe I wasn't clear enough, I'm in touch with the AFCA so it implies I'm providing "vital" information to them. Do you know what is the AFCA?
    It's not my word against hers but as I said "vital information" which are not words.
    The AFCA will decide who is at fault not the insurance company and I'm giving these tips here to help others who might find themselves in a similar situation.
     
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