why should I be out of pocket

InsideInsurance

Quentin wrote: »

Hire car and courtesy car excesses are generally higher than normal policy excesses.

You usually cannot choose what level of excess to pay

All you can do is take cdw.

As I say, previously we would cover the additional excess above what their normal excess is so that the TP is in the same position if they have a fault claim whilst in the hire car.

They were free to buy CDW to remove the excess but that would be at their own expense.

BertTheRaccoon

Cds is a recoverable uninsured loss

Quentin

BertTheRaccoon wrote: »

Cds is a recoverable uninsured loss

It's just a shame for the OP that Inside Insurance's "betterment" tosh is spouted in such a prolonged authoritative manner that he (and others reading the question) might have been deterred from the simple solution to his question.

BertTheRaccoon

Of course I meant cdw but my typing skills are a little inept on my mobile whilst half pickled ;-) there are some merits in II's argument though. But the caselaw does support recovery of cdw as the view of the court is that if you were using your own car you could effect temporary repairs or defer getting repairs carried out, whereas when you are in a hire car you have the immediate need to have the repairs carried out so the hire co can hire the vehicle again. A lawyer who knows what he is doing should be able to recover a cdw fee, despite the protests from the defendant insurer.

BertTheRaccoon

http://www.linkedin.com/groups/Collision-Damage-Waiver-1812834.S.164745894?qid=1daaf4b4-7398-467e-8bee-52e21f601b48&trk=group_items_see_more-0-b-ttl

BertTheRaccoon

Copied & pasted, oh the shame.....

Collision Damage Waiver

This one goes out for all those insurers who still believe that this is not a recoverable loss.

The Collision Damage Waiver, in most cases, reduces the hirer’s liability to zero.

The hirer takes out this cover to avoid being exposed to risks which he would not otherwise have faced, but for the third party’s negligence causing him to require and utilise a replacement vehicle.

These risks were detailed in the skeleton argument of Christopher Butcher Q.C , in the case of Bee –v- Jenson [2006] EWHC 3359 (Comms), with which The Hon Mr Justice Morison agreed, at p.15, namely;

“"The fallacy in [the Defendant's expert witness'] case on [collision waiver damage] is that whilst asserting the betterment of the nil excess, he disregards the detriment [Mr Bee ] suffered by being placed in a car belonging to a hire company. He treats Mr Bee as if on receiving the hire car, he was in the same position after the accident as he was before it. Obviously, he was not. He was not in his own car; he was in somebody else's. He was obliged to return the car in the same state as he received it. Were his own car damaged, he could defer repairs, perform amateur or temporary repairs or not bother with repairs. These would not be options with Helphire. Moreover, were [Mr Bee ] to blame for damage to that vehicle, he would be subject not only to a claim for the cost of repair, but also for Helphire's loss of profit whilst it was out of commission. In other words, by forcing [Mr Bee] into a hire vehicle, [the Defendant] was exposing him to risks which he did not previously face, such that his insurance needs were different. As such, it is impossible to portray the nil excess as betterment. It was a reasonable arrangement, consequential on the tort. "

At p.16, The Hon Mr Justice Morison then said;

“In any event, there is a decision on this issue in an unreported decision of the Court of Appeal given on 20 February 1985 Marcic v Davies. There, the court held that the claimant who hired a replacement vehicle and paid the waiver fee to achieve a nil excess when his own excess had been £150 was entitled to recover that fee since if there had been no collision the claimant would "never have come under any contractual liability to the car hire company". "It was entirely reasonable that he should pay the waiver fee to cover himself against a contractual liability which he would otherwise never been under." per Lord Justice Browne-Wilkinson. Mr Flaux accepts that this case is binding on me. I have no hesitation in following it for the reasons expressed above”.

It is often argued by insurance handlers that this cannot be claimed under the ABI GTA, but what they fail to grasp (and only God knows why), is that the cost of the CDW is NOT being claimed under the ABI GTA as part of the hirer’s credit hire charges; it is being claimed by the hirer as an uninsured recoverable loss, in law. Equally, his other uninsured losses would not be presented as recoverable under the ABI GTA.

The credit hire company is permitted to offer this product, and the ABI GTA even confirms this at section 5.5.