Module
Insurance
23
23-1
THE NATURE OF INSURANCE
An insurance policy is a contract between an insurer and the insured, by which the insurer, in return for a premium paid by the insured, agrees to pay to the insured an indemnity usually a sum of money, in certain agreed circumstances, for example, loss or damage to property, personal injury or death. Most insurance contracts are based on the principles of in-demnity, by which the insurer indemnifies (ie, covers against loss) the insured for the actual loss they suffers.
An indemnity insurance restores the insured to the position they were in before they suffered their loss.
The insured cannot make a profit out of their insurance. Most insurance in business and commerce is indemnity insur-ance which includes burglary, theft, fire and marine insurinsur-ance. Personal accident assurance however is a non-indemnity in-surance, in which the insurer agrees to pay a definite sum re-gardless of the actual financial loss sustained by the insured.
23-2
PRINCIPLES OF INSURANCE
For an insurer to agree to issue an insurance policy certain conditions must be met by the insured.
These include:
– insurable interest: the insured must personally stand to lose in some identifiable financial way from the loss or damage they insure against.
– the object of insurance must not be an uninsurable risk, one which the insurer cannot assess – eg, an insurer will not insure against loss resulting from changes in fashion, or which is against the public interest.
– utmost good faith: an insurance contract is a contract ‘of the utmost good faith’ – ie, it is made on the understand-ing that the insured discloses all material facts which must be true to the best of the insured’s knowledge but there is also an obligation to disclose all facts which are or ought to be within the insured’s knowledge which would influence an insurer’s judgement in accepting or declining the risk or in fixing the premium or terms and conditions of the contract. Further all questions asked by insurers relating to the insurance must be answered honestly and truthfully.
if it turns out that the insured has given false answers or withheld information, the policy may be void.
23-3
THE BASIS OF INSURANCE
The basis of insurance, and its principal advantage, is that a very large number of people pay small fixed sums (premiums) annually into a fund out of which those who suffer loss are compensated.
The small sum insures the person against a possible heavy loss which might ruin them financially.
it is a method of averaging the risks and spreading them. Total premiums usually exceed the total amount paid out. Premiums are calculated by actuaries on the basis of probabil-ities of total amounts likely to have to be paid out.
The surplus is used:
– to purchase investments to give stability to the fund; – to pay the costs of running the insurance company; – to pay dividends to shareholders in the insurance
company.
Thus it is an essential part of an investment in property, whether buildings, machinery, vehicles or goods, that it should be protected against loss or damage from fire, theft or accident.
it is also prudent, and in some cases required by law, to have protection against third-party claims for compensation as a result of injuries caused by an occurrence involving an employer, their servants (employees), their property (includ-ing vehicles), or their premises.
23-4
EMPLOYERS’ LIABILITY
INSURANCE
Common law and statutes require an employer to take ‘rea-sonable care’ for the safety of their employees.
This duty of care is to be met by ‘the provision of a compe-tent staff of men, adequate materials and a proper system of effective supervision’.
The employers’ liability (Compulsory insurance) Regulations 1998 amend the employers’ liability (Compulsory insurance) Act 1969 and lay down that all employers must insure against liability for personal injury and disease sustained by their em-ployees arising out of, or in the course of, their employment. Compulsory insurance is not required for:
– immediate family relatives employed;
– employees not normally resident in GB, who are working here for fewer than 14 days;
– domestic servants employed solely to assist in the running of a private household.
The amount of insurance cover must now be a minimum of £5 million for any claim arising out of one occurrence, although in practice most policies give cover up to £10 million.
Copies of the Certificate of insurance must be displayed for the benefit of all employees at each place of work, with the additional proviso that Hse inspectors can ask to see certifi-cates from previous years. Certificertifi-cates must be retained for a period of 40 years upon their expiry.
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in addition, the national insurance (industrial injuries) Act 1965 (amended by the social security Act 1975) consolidat-ed earlier Acts which introducconsolidat-ed a comprehensive state insurance scheme against personal injury or death by accident arising out of or in the course of a person’s employment, and against certain prescribed industrial diseases. This insurance and not the employer’s motor insurance would cover a driver injured whilst on duty in their vehicle.
23-5
THIRD PARTY INSURANCE
With certain exceptions, all motor vehicles used on the public highway must by law be covered by an insurance policy against third party risks in respect of any liability:
– which may be incurred by them in respect of the death or bodily injury to any person due to the use of the vehicle on the road or any other public place;
– for payment for emergency treatment (eg, by a hospital or medical practitioner);
– for damage to a third party’s vehicle or property for a minimum indemnity of £250,000.
Drivers (only) of a vehicle, driven in the course of their em-ployment, do not have to be covered by the employer’s third party motor policy as this is covered by the employer’s liabili-ty policy. All passengers are covered by the third parliabili-ty policy whether or not they are company employees.
23-6
THIRD PARTY INSURANCE –
ALTERNATIVES AND EXEMPTIONS
some operators of very large fleets may elect to cover third party claims from their own resources. To do so, the operator must proceed as follows.
– either apply to the secretary of state at the Department for Transport for a warrant to deposit £500,000 with the Accountant General of the supreme Court. on deposit the operator obtains a Certificate of Deposit as proof of cover.
– or the operator may obtain the services of a guarantor – eg, a well-known insurance company which has deposited the £500,000 and issues Certificates of security to the operator as proof of cover. Thus the guarantor under-takes to make good any failure on the par t of the operator to discharge any third party liabilities arising from the use of a vehicle on the road.
Third party insurance is not compulsory for: – invalid carriages;
– vehicles owned by local authorities when being used under the owner’s control;
– vehicles owned by the police or being used for police purposes or under the direction of a constable;
– salvage vehicles used under the Merchant shipping Act 1894;
– crown vehicles.
‘Certificates of ownership’ are issued to vehicles owned by such bodies as proof that they are owned and operated by an exempt organisation.
23-7
GENERAL INSURANCE
Vehicle insurance is not of course the only insurance which a vehicle operator will take out. They must insure against em-ployers’ liability and if they are wise they will also insure themself against the risk of damage or loss to other property – eg, buildings, workshops, stores, goods, by fire, theft or accident; against risks of injury to the public on their premises, and against loss resulting from bad debts and certain financial losses resulting from dishonesty or fraud.
The main forms of general insurance relevant to the vehicle operator – as an operator, as an occupier of premises, as an employer and as a businessman – are as follows.
Fire (and other perils, such as storm and tempest): protection against damage to or total
destruc-tion of goods and property. A ‘fire insurance policy’ normally includes a clause in respect of consequential loss – eg, as a result of fire damage.
Theft: protection against loss or damage as a result of
violent or forcible entry to or exit from a property.
Fidelity guarantee: cover against fraud or dishonesty on the
part of employees whose duties involve handling cash or goods.
Goods in transit: cover for damage or loss of goods being
carried on a vehicle.
Employer’s liability – a legal requirement: cover for
li-abilities for bodily injury or disease contracted by employees during or arising from their employment.
Public liability: cover against liabilities to third-parties for
bodily injury or illness or damage to their property arising from the insured’s business activities.
An example of this would be where there is an injury to a third party as a result of the defective loading of a goods vehicle or, possibly, giving the wrong first aid treatment to an injured third party.
All risks: broad cover for property covering all damage
ac-cidentally caused unless specifically excluded by the policy.
Consequential loss: cover against the loss of profits – eg,
the consequences of a fire.
23-8
FIRE INSURANCE
Usually covers loss or damage: – up to a specified amount;
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in addition, it is wise to be protected against claims for com-pensation made by others (‘third par ties’) who receive injuries to themselves or damage to their property through some accident involving the equipment, property, vehicles, employees or premises.
in the case of motor vehicles, despite the wide range of insur-ance available, the law requires only certain coverage. it is an offence to use or cause or permit another person to use a motor vehicle on a road unless the use of the vehicle is covered by insurance in respect of third party injury risks. This requirement is covered by the Road Traffic Act 1988, but is now extended by the Motor Vehicles (Compulsor y insurance) Regulations 2000 to cover public places other than roads, such as car parks.
in addition to compulsory third party insurance, unlimited passenger liability insurance for motor vehicles is compulsory to cover against liabilities for death or injuries to passengers carried in vehicles and, also insurance covering damage to a third party’s vehicle or property for a minimum indemnity of £250,000 available for any one accident. Most policies will provide cover which is unlimited for personal injury by any vehicle and for property damage caused by cars and up to £5 million for property damaged caused by commercial vehicles. if an employee driver is charged with not complying with basic insurance requirements, it is a valid defence if they can prove that the vehicle did not belong to them and that they had no reason to believe that it was not insured.
23-13
PASSENGER INSURANCE
Passenger liability insurance for motor vehicles is compulsory. This requirement covers all vehicles which require compulso-ry third party insurance and extends to authorised passen-gers, and such ‘unauthorised’ passengers as hitch-hikers and others who are given lifts.
The practice of displaying a notice in a vehicle or cab saying ‘no unauthorised passengers’ or ‘no liability in the event of accident’, does not exempt the operator from insuring against passenger injuries.
Vehicle owners displaying such signs are not fully indemnified (ie, excused) from claims by unauthorised passengers. The law requires that such liabilities are covered.
23-14
INSURANCE – PENALTIES
The penalty for using a motor vehicle uninsured (or unse-cured) against third party liability is a fine (level 4), a driving licence endorsement and, at the discretion of the court, dis-qualification from driving for a specified period.
– within a specified period;
– caused by lightning, and possibly by earthquakes, riots, storms, floods, collisions and other perils.
it may also cover:
– loss of profits (consequential loss or business interrup-tion) and other expenses resulting from the fire – eg, ar-chitect’s and other professional fees, debris removal.
23-9
THEFT INSURANCE
Covers:
– risk of loss by theft involving forcible or violent entry to or exit from premises, but does not usually cover larceny, if there is no evidence of damage or visible signs of entry or exit.
23-10
FIDELITY GUARANTEE
Covers criminal acts committed by employees such as: – dishonesty – ie, theft;
– fraud.
The guarantee can cover holders of certain posts (eg, those involving the handling of cash) or all employees, or certain specified individuals.
There are three basic policies available. 1 individual guarantee – for a named person. 2 Blanket guarantee – for all staff.
3 Collective guarantee – covers a group of staff. Generally provided for a specified sum.
Details of employees will be required by the insurer and also evidence of an internal checking system.
23-11
PUBLIC LIABILITY
INSURANCE
An employer is liable for the payment of damages to any member of the public who suffers injury as a result of their or their employees’ negligence in the course of their business ac-tivities, or where a visitor is injured on company premises. A public liability insurance policy can cover this liability.
23-12
INSURANCE IN RESPECT OF
VEHICLES
There is obviously good sense when investing in equipment, property or vehicles to protect them by insurance against possible loss, theft or damage from fire or other accidents.
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They must also give information about the identity of the driver of a particular vehicle at any time, or information which may lead to the identification of the driver.
When an insurance policy is cancelled, the relevant certificate(s) of insurance must be returned to the insurer within seven days of the date of cancellation.
23-16
INVALIDATION OF
INSURANCE POLICIES
it is important that steps are taken to ensure that a policy is not inadvertently invalidated by failing to meet the conditions contained in it.
The main ways in which an insurance policy may be invalidat-ed are:
– the use of vehicles in a defective or unroadworthy state; – the employment of unlicensed drivers, or drivers with the
wrong class or type of licence, or under age;
– allowing persons to drive who are not covered by the policy;
– failure to report traffic accidents.
23-17
NOTIFICATION OF
ACCIDENTS TO INSURERS
An insurer should immediately be notified of any accident in-volving a vehicle for which they provide cover.
Within a specified time limit, usually seven days, this must be followed by a completed accident report form to accompany any claim. Failure to advise within the time limit could lead to invalidation of the policy.
Various forms are in use, such as the european insurance Committee’s (CeA) ‘Agreed statement of facts on a motor vehicle accident’ and forms devised by insurance companies or brokers.
once the insurer has received the report and claim form, they can take steps to decide who was to blame and author-ise repairs to be carried out following a vehicle assessor’s in-spection.
23-18
THE MOTOR INSURERS
BUREAU (MIB)
All insurers who wish to write motor insurance in the UK must be members of the Motor insurers Bureau.
The Motor insurers Bureau:
– operates the Green Card system (covered in the CPC international Course);
23-15
INSURANCE CERTIFICATES
A valid insurance certificate, as long as the ‘conditions’ are being observed, provides proof that the motor vehicle is insured. The policy itself, payment receipt or proposal form are not sufficient.
A certificate of insurance (or temporary cover note) must be delivered to the insured for a policy to be valid.
The certificate must be in the possession of the insured and not just ‘being taken care of’ or ‘in the post’.
The certificate must be issued by the insurers not later than four days after the date of issue or renewal of the policy. The contents of a certificate of insurance must include: – particulars by registration number or specification of the
vehicle or vehicles covered (or in the case of a blanket in-surance, for example for a fleet of vehicles, a statement to the effect that cover is provided for any vehicle, owned, hired or temporarily in the possession of the insured); – name of the policy holder;
– the persons authorised to drive the vehicle(s);
– the dates between which the insurance cover is provided; – any limitation of use.
Any alteration of an insurance certificate by the holder with the intention to deceive anyone – eg, the police or the insur-ance company – constitutes the offence of forgery and it is ir-relevant whether the other party was actually deceived or not.
When applying for, or renewing, a vehicle excise licence, a vehicle owner must produce a valid certificate of insurance and not the policy itself. (owners who have arranged self-cover must produce a Certificate of Deposit or a Certificate of security.)
When applying for trade plates, a certificate of insurance does not have to be produced for requirements relating to the use of trade plates.
When requested by a police officer, a vehicle owner or driver must produce a certificate of insurance.
if it cannot be produced at once, it can be taken personally, or by somebody else, for inspection at any police station nomi-nated by the owner or driver, within seven days of the request.
The power to require production of a certificate of insurance is extended to any person who has reasonable grounds to do so, following an accident involving injury to another.
in such instances there are additional requirements regarding reporting to the police.
if requested by a police officer, a vehicle owner must give in-formation to help determine whether a vehicle was driven without third party insurance in force.
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– may require special conditions to be met – eg, overnight parking, security, especially with high value loads, the need for an approved anti-theft device where an ‘immobiliser clause’ is stipulated or, in the case of a ‘restrictive night risk clause’, either the fitting of an anti-theft device or constant personal attendance.
Where contract hire vehicles are used, it is wise for the Goods in Transit policy to be in the joint names of the hirer (the vehicle owner) and the user of the hired vehicle. Goods in Transit policies, in common with many other types of insurance policy, may incorporate an ‘excess’ clause. This means that the insured party will be liable for the first (perhaps £50/£100) amount of each claim that they make. This has two tangible advantages: (1) for the insurance company, it reduces the number of small claims made, and (2) for the client, it usually provides a discount from the normal annual premium.
Where a haulier sub-contracts a consignment to another haulier, both the original haulier and the sub-contractor are responsible for ensuring that the consignment is adequately covered by GiT insurance.
23-21
ADDITIONAL VEHICLE
INSURANCE
Loading and unloading risks Claims arising from the
loading and unloading of vehicles or the actions of employees involved in such work on a road as defined by the Road Traffic Act. This is normally covered by a comprehensive vehicle insurance policy. loading and unloading of vehicles in other circumstances is normally covered by a public liability policy.
Towing Damage caused to a vehicle being towed or to
goods being carried on a broken-down vehicle.
Windscreens Cover for replacement of broken
wind-screen or window glass and cost of repairing paintwork damaged by broken glass without application of policy excess or loss of no-claims bonus. (This is now fairly normal on ordinary motor vehicle policies, and gradually becoming more common on goods vehicle policies.)
Mechanical failure not insurable for vehicles under a
motor policy. some specialist engineering breakdown policies will cover breakdown risks for heavy engineering plant.
Defence costs Cover for legal costs in defending a driver
faced with charges of manslaughter or causing death by dan-gerous driving. Additional cover for defending prosecution is available from specialist legal expenses insurance policies.
Loss of use insurance Where a vehicle is out of service
following an accident, the operator may make a claim against the person who caused the accident that resulted in the ‘loss of use’ of the vehicle. such claims can be up to the amount of the loss of earnings and other costs, such as the hiring of a re-placement vehicle. The operator will need to be able to prove that the other party had been guilty of negligence.
– provides, by agreement with the Government, compensa-tion for people injured in motor accidents if they are unable to obtain compensation from any other source. These are cases where the person responsible for the injuries is uninsured or unidentifiable.
This function covers damage to property, subject to certain conditions.
23-19
RETENTION OF INSURANCE
RECORDS
The Motor Vehicles (Third Par ty Risks) (Amendment) Regulations 2001 now require every company by whom a policy or security is issued to keep a record of the following particulars in respect of the policy or security.
– The number of the policy or security.
– The name and address of the person to whom the policy or security is issued.
– either the name of every person whose liability is covered, or a description thereof.
– The registration number or description of every vehicle covered.
– A description of every specified vehicle sufficient to enable it to be identified by a police officer.
– The date of commencement and expiry of the policy or security.
– Any conditions.
such records are required to be preserved by the issuing company for a period of seven years from the date of expiry of the relevant policy or security. Furthermore, information contained in such records will have to be provided to the secretary of state or a Chief officer of Police, if requested. Also, copies of records may have to be provided to the Motor insurers’ Bureau.
23-20
GOODS IN TRANSIT
INSURANCE
This usually covers loss or destruction of, or damage to goods in the course of transit from the time they are taken over, during loading and unloading until delivered, including tempo-rary housing during transit whether on or off the vehicle for a specified period while in the specified territorial limits. This cover also:
– usually stipulates maximum liability per vehicle. Cover will need to be adjusted for goods and loads of different values carried, though the liability of a carrier will often have been limited by the conditions of carriage under which the goods are carried;
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such claims can involve a great deal of expense and are seldom successful. For this reason insurance companies offer ‘loss of use’ insurance to cover such a situation.
23-22
INSURANCE – SUMMARY OF
COMPULSORY REQUIREMENTS
The law requires:
– third party cover – insurance against liability for death of, or bodily injury to third parties, including passengers, whether fare paying or otherwise and payment for emer-gency hospital treatment;
– third party cover for damage to property.
This, however, provides only minimum cover for the vehicle operator, who will, if they are wise, cover themself against a much wider range of risks.
The broadest cover is provided by a comprehensive policy. This can be without qualifications or the insured may agree to meet a certain specified amount of each claim (ie, they agree to an ‘excess’ clause) in order to reduce the premium.
