Insurers don't have to 'prove' a driver was drunk to reject an accident claim
Here’s a sobering thought as the festive season kicks into overdrive — insurance companies reject a huge percentage of car accident claims on the grounds that the driver was drunk.
And they don’t need a positive test to do it.
The office of the Ombudsman for Short-Term Insurance (OSTI) has in the past few days warned motorists that while in criminal cases the state had to prove beyond reasonable doubt that a person was indeed driving under the influence, with insurance claims, insurers don’t have to depend on the results of a blood test or breathalyser.
"It is sufficient to produce circumstantial evidence to demonstrate that the driver was under the influence of alcohol … such as statements by police or emergency-service personnel at the scene of the accident, doctors or nurses who attended to a driver who was admitted to hospital, eye witnesses who were able to observe the driver’s demeanour, witnesses who can account for the driver’s whereabouts prior to the collision and who can attest to whether he or she consumed alcohol, security or video footage from restaurants or bars," OSTI said.
Cramwell Badla knows all about the power of circumstantial evidence.
On August 9 around 8.30pm he was involved in a serious car accident at Kuilsriver in the Western Cape, which left his three-year-old VW Polo a "write-off" and him unconscious.
He was transported by ambulance to hospital along with those injured in the other vehicle, a seven-seater.
Badla regained consciousness in hospital and went on to make a full recovery, but then came the devastating news — his insurer, New National, rejected his accident claim on the grounds that he was drunk at the time of the accident.
In approaching SowetanLIVE for help, Badla said the ambulance report noted that he smelt of alcohol, "and that information was transferred to the hospital report".
"When the insurance adjuster came to investigate, I told him I didn’t drink even a sip of alcohol that day. I gave him my whereabouts and names of witnesses and I asked him to obtain the accident reports of the others who were transported in that ambulance with me."
Despite his protestations, the claim was rejected.
In taking up his case with New National, TimesLIVE pointed out that as a laboratory chemist employed by a mine, Badla is subjected to mandatory breathalysing on his arrival at work every morning and thus never drinks on the night before a work day, as his work records would attest to if requested.
And given that Badla’s demeanour — gait, attitude and speech — could not be assessed due to him being unconscious, TimesLIVE asked the company what evidence it had relied on in coming to its decision to repudiate the claim, other than the alleged smell of alcohol.
Responding, New National’s strategic director Kalim Rajab said Badla’s file had been reviewed, and "we agree with you that while there is circumstantial evidence against Mr Badla, there are areas of doubt as highlighted by him. So from a client-centric perspective, we’ve decided to pay this claim".
The case serves to drive home the point that if you do take to the wheel when you’re over the legal alcohol limit, what others — and your bank statements — may reveal about what you got up to in the hours leading up to that crash, and at the accident scene, is enough to have your insurance claim rejected.