Car Insurance: Excess and Liability

jsh1988

Not sure if anyone will be able to advise on this one.

I had my car parked up outside of work in a designated marked bay, in a private car park.

While parked up someones motorbike had falling into the side of my car causing a fairly large dent.

As the motorbike was parked on the Pavement in unsafe conditions would he be liable for negligence, and given the evidence should my insurnace company pursue to make a recover from the third parties insurance company?

Also, with regards to an excess that my insurance are tring to charge me. It states "Driving, Or in Charge of" and a different excess for "Standard" Excess. (Over a certain age, and/or Un Attended)

because i was in the office at the time. should i still be liable for the "driving or in charge" excess?

Thanks in advance for any help

forgotmyname

If nobody else was in charge of your car then you were.

Because he put it on the pavement and not a marked bay doesnt automatically say he was negligent.

Unsafe conditions? Because it fell over or other reason?

Why did it fall over? Wind, Stand failed/broke or the owner didnt do it properly? Or a 3rd party caused it?

That maybe the issue, Was he actually negligent?

jsh1988

forgotmyname wrote: »

If nobody else was in charge of your car then you were.

Because he put it on the pavement and not a marked bay doesnt automatically say he was negligent.

Unsafe conditions? Because it fell over or other reason?

Why did it fall over? Wind, Stand failed/broke or the owner didnt do it properly? Or a 3rd party caused it?

That maybe the issue, Was he actually negligent?

The unsafe conditions that would make him negligent are leaving the vehicle broadside, with the wind pushing with the lean of the kick stand. Combined with being parked on a slanted pavement again going with the lean of the bike. And having a rain cover over the top.

The rain cover in the strong-ish winds acted like a tent and pulled the bike over. Another bike parked on the pavement without a cover parked in similar conditions and open to the elements such as the wind remained upright. The wind alone would not have blown the bike over had it been parked correctly.

Another 4-6 motorbikes parked in the designated bay on level ground parked mainly head on into the wind, again without covers remained upright.


Two main parts of the highway code he is technically in breach of


243

1. anywhere you would prevent access for Emergency Services
2. where the kerb has been lowered to help wheelchair users and powered mobility vehicles
3. where you would obstruct cyclists’ use of cycle facilities

244

You MUST NOT park partially or wholly on the pavement in London, and should not do so elsewhere unless signs permit it. Parking on the pavement can obstruct and seriously inconvenience pedestrians, people in wheelchairs or with visual impairments and people with prams or pushchairs.

Quentin

jsh1988 wrote: »

.....because i was in the office at the time. should i still be liable for the "driving or in charge" excess?.....

They are correct in charging the excess applicable.

But if you are able to prove the third party is liable you will be able to get all your excess back (by pursuing the third party insurer for it - or use any "uninsured expense legal cover" you have to do this for you).

paddedjohn

jsh1988 wrote: »

The unsafe conditions that would make him negligent are leaving the vehicle broadside, with the wind pushing with the lean of the kick stand. Combined with being parked on a slanted pavement again going with the lean of the bike. And having a rain cover over the top.

The rain cover in the strong-ish winds acted like a tent and pulled the bike over. Another bike parked on the pavement without a cover parked in similar conditions and open to the elements such as the wind remained upright. The wind alone would not have blown the bike over had it been parked correctly.

Another 4-6 motorbikes parked in the designated bay on level ground parked mainly head on into the wind, again without covers remained upright.


Two main parts of the highway code he is technically in breach of


243

1. anywhere you would prevent access for Emergency Services
2. where the kerb has been lowered to help wheelchair users and powered mobility vehicles
3. where you would obstruct cyclists’ use of cycle facilities

244

You MUST NOT park partially or wholly on the pavement in London, and should not do so elsewhere unless signs permit it. Parking on the pavement can obstruct and seriously inconvenience pedestrians, people in wheelchairs or with visual impairments and people with prams or pushchairs.

But does this apply to private property? To be succesful in a claim against the motorcyclist you need to prove negligence on their part, its not enough to say his bike caused you damage.

jsh1988

paddedjohn wrote: »

But does this apply to private property? To be succesful in a claim against the motorcyclist you need to prove negligence on their part, its not enough to say his bike caused you damage.

It is important to note that references to ‘road’ therefore generally include footpaths, bridleways and cycle tracks, and many roadways and driveways on private land (including many car parks). In most cases, the law will apply to them and there may be additional rules for particular paths or ways. Some serious driving offences, including drink-driving offences, also apply to all public places, for example public car parks.

Where i am stuck is the insurance company are not interesting in making any attempt to recover the losses.

As it stands going by the policy document they are going against the terms and conditions in relation to the excess they are tring to make me pay, If they fight my corner (what they are paid to do) I am happy to pay the set excess knowing i will more than likely get it back.

But if they are not willing to fight, it should go down as they state on the policy unattended damage at a lower excess.

Quentin

jsh1988 wrote: »

..........Where i am stuck is the insurance company are not interesting in making any attempt to recover the losses.

As it stands going by the policy document they are going against the terms and conditions in relation to the excess they are tring to make me pay, If they fight my corner (what they are paid to do) I am happy to pay the set excess knowing i will more than likely get it back.

But if they are not willing to fight, it should go down as they state on the policy unattended damage at a lower excess.

There is no reason why you cannot postpone your claim and pursue this yourself direct with the third party, and if this fails then continue with your own claim.

Get some legal advice on the prospects of winning before you embark on this though (your insurer not wanting to pursue the third party does look as though no negligence is involved).

jsh1988

Even though given them all the evidence, and being able to get a few witness statements to prove the way he was parked. My insurance stated "We cant force his insurance to get him to admit liability"

Also able to prove damage to his bike incase come inspection his bike has since been repaired...which i assume he is getting done at the moment)

I think they are not wanting to pursue as they have not taking into consideration all of the factors i have supplied.

a 200KG bike if parked securely does not fall over on its own accord even in slight winds 5-10mph - If the winds had been stronger 20mph+ then higher chance of bike falling would occour without the owner being negligent.

the way my insurance are going on i feel like giving up and paying the excess and taking the claim on my record just to shut them up and get the damage repaired

Quentin

Bear in mind that unless you have "protected NCD" you will see a big difference at renewal with this claim on your record (particularly if you are subject to a higher comp. excess already)

jsh1988

Dont think that will matter much.

Were i am stuck at the moment is the insurance company is unwilling to progress the claim and chase a recovery depite all the evidence i have provided...

jsh1988

Just to give a update,

Insurance company is going back to other side to "try" for a recovery.....totally different issue i need to fight with them about,

As for the excess they are still saying as i was "in charge"at the time of the accident the higher excess applies. Even though i was at my desk.

They are now saying it is because i was in possession of the keys, had the intent on driving away AND "Last In Charge"

As my policy does not state "Last In Charge" can they apply this term?

Also with the intent on driving away from the scene does this need to fall within a set time of the accident, ie accident occours at 1pm but the car does not get moved til 7pm.

from what i have looked up "in charge" by the courts for drink driving is "in possession of keys and recently drove" (if not driving...) How Recent, would recent be, a hour or two or could recently be anything the courts / insurance company with to pluck out of the air

This is not about getting out of paying a higher excess, i did have a claim a while back damage to my car only no third parties involved. and as i was "driving" i was liable for the higher excess.

Its about principle and the insurance company twisting the wording in their policy, Would trading standards and or Financial Ombudsman be able to assist?