Are you aware of your responsibilities when concluding an agreement to insure your vehicle? Do you know that you would be in breach of contract if the vehicle is stolen as a result of your gross Negligence? The Ombudsman for Short Term Insurance made such a finding on some interesting facts:
The Facts of the Car Insurance Claim
Ms. S reported a claim to her insurer for the theft of her vehicle. The claim was rejected by the insurer on the ground that the nominated driver had immediately prior to the theft, been grossly negligent. The policy excludes cover under circumstances where there is gross negligence on the part of the insured or the nominated driver.
The nominated driver of the insured vehicle was noted as Ms. S’s boyfriend, Mr. J. On the evening of the incident Ms. S asked Mr. J to go to the shops in her vehicle in order to purchase a cold drink and cigarettes. Mr. J then left their home to go to the shop in order to purchase these items. Upon arriving at the shops, Mr J left the vehicle’s keys in the ignition and left the vehicle unlocked while he went into the shop. He did this because he was of the view that, as he only needed to purchase two items, he would not leave the vehicle at risk for a material length of time, and that it would thus be safe to leave the vehicle exposed in this manner.
Whilst he was inside the shop he heard the vehicle’s ignition start and ran out of the shop to see what was happening. He realized that the vehicle was in the process of being stolen and although he tried to prevent the theft, he could not.
The insurer was of the view that Mr.J was grossly negligent in leaving the keys in the vehicle’s ignition and not locking the vehicle whilst it was left unattended. The insurer also provided photographs of where the vehicle was left when it was stolen and advised that Mr. J would not have been able to keep an eye on the vehicle whist in the shop.
Ms. S was of the view that, even though Mr. J may have been negligent in leaving the keys in the ignition and the vehicle unlocked, this does not equate to her, as the insured, having been negligent.
Wording of the Car Insurance Policy
The policy wording that the insurer relied on for rejecting the claim states that:
“1. What the PolicyWords mean: 1.2 “Grossly negligent, illegal or criminal behavior” includes any action or activity that is not careful, honest and diligent or which is against the law.”
“2. Important exceptions:
We do not pay:2.1 If the loss was caused or contributed to by any grossly negligent, illegal, criminal r fraudulent act by you, a family member or a nominated driver at the time of or just prior to the loss.”
The insurer, therefore, advised that the claim was capable of rejection in terms of the exclusion relating to gross negligence as Mr. J’s actions caused and/or contributed to the theft of the vehicle. Mr. J was a nominated driver under the policy and accordingly, his actions fell to be considered in determining the validity of the claim.
Decision by the Ombudsman: What is Gross Negligence?
It was noted that Ms.S (and Mr. J) did not dispute that Mr. J had left the keys in the vehicle’s ignition and unlocked, whilst it was unattended, in a public area. Mr. J was clearly grossly negligent as a reasonable person would have foreseen the possibility of the vehicle being stolen under these circumstances and would have taken steps to prevent the loss.
As Mr. J failed to take such steps to prevent the loss from occurring, he was grossly negligent and the insurer was therefore entitled to reject the claim as Mr. J’s action did in fact cause and/or contribute to the theft of the vehicle.
The rejection of the claim was therefore upheld.
Also view:
Car Insurance Advice, Education and Road Safety in South Africa