Repudiation of Car Insurance Claims and Crash Investigation
With a rather dismal road safety record and hundreds of thousands of road crashes yearly in South Africa it is rather irresponsible to drive with a vehicle that is not insured. Car Insurance, even though sometimes seen as a “Grudge purchase” may save you from lengthy legal battles with other road users. Perhaps most important though is that car insurance will provide peace of mind that you will not be left to deal with severe financial hardship in having to replace your vehicle.
Well, this is part of the theory of it! All is however not that simple. The contract with your car insurer will also require you to fulfill YOUR contractual obligations to ensure that the insurer is not burdened with limitless liability. It would only be fair to accept that an insurer will only pay for those damages that could be foreseen – and not for damages caused by lawlessness such as drunk and reckless driving!
When an insured vehicle owner submits a claim to the insurer, the insurer will investigate the reason for the claim, contributing factors to causing the crash and whether the insured client was not in a breach of the contract that might lead to the claim being repudiated!
Understanding the Pitfalls of Claims Repudiation
A wise man once said that the law is not an exact science, that we should look after the facts and the law will then look after itself. Crash investigators may help us to find those facts that could ensure that the claim is treated in a manner that is fair and just. These investigators may, however, have a vested interest in ensuring that they present the facts to the insurer paying them that could be regarded as favorable, leading to further appointments for the investigator! With this in mind, it should only be fair to carefully balance their findings with the findings of other independent crash investigators.
We would like to share some insights from Crash and Forensic Investigator, Stan Bezuidenhout on the need for careful analysis of crashes in repudiated claims.
Is Your Motor Claim Repudiation Really Justified?
This piece is directed at a specific few who would understand its contents only too well. It was written out of frustration; the knowledge that right, wrong, honesty and dishonesty are not as clearly defined as we have always believed. It was written for the education of the “victims” of unfair motor vehicle insurance claim repudiations; those where the insurer repudiates because you “drive in excess of the speed limit, thus failing to take due care and reduce loss or damages.”
With experience over more than 17 years, investigating analyzing, reconstructing and testifying in courts at all levels, Stan Bezuidenhout from IBF Investigations reports a trend: “I have been in a Road Traffic Risk Analysis and Crash Investigation and Reconstruction industry for 17 years now. In this time, I have seen a tangible trend towards repudiation for ever-surprising reasons. Back in 2000, a repudiation came mostly in the form of extreme negligence or alcoholic intoxication. These days, people are approaching me with all manner of nothing less than horror stories about their repudiation experiences. In one case, my client was asked to come in and talk to his insurance, about his motor accident claim after another driver drove into him. He willingly went, under the – sometimes misguided – belief that honesty and openness is the best policy. Upon arrival, he found himself subjected to an interrogation more akin to a trial than the friendly chat he was expecting. One of the questions he was asked, among many others, was whether he had had anything to drink on the night of the collision. In honesty and believe in always telling the truth, he answered that he did have one beer much earlier in the evening. He was later mortified to learn that his claim had been repudiated because he admitted that he was under the influence of a drug – a clear policy violation. He was in material breach. His claim was never paid.”
Stan felt his frustration and that of many similar clients to follow. The trend had started. It is this – the repudiation of a motor insurance claim - the became catalyst for Stan’s contribution to this article. “I have suddenly – perhaps in the last year – been absolutely inundated with insurance claim repudiation matters – most based on speed, interestingly enough. People are contacting me as often as several times a week, asking me how I can help. Practically every one of them tells the same or a very similar story: They were involved in a collision, they submitted a claim, the insurer appointed someone to investigate and their report revealed that the client was driving at an excessive speed. The claim is therefore repudiated under the argument that the client failed to take due care and, in so doing, acted recklessly and/or negligently. This is considered material breach under the banner of the client’s duties to prevent loss or risk.”
What is one to do, when this happens? What if you know full well that you were not speeding? “In one case, the client’s husband was involved in a collision with a BMW M6, during a very intense rainstorm,“ Stan continues. The client reported to Stan that – when she called in to lodge her claim – she was told: “Oh wow. That is an expensive car. You must know that we will first investigate before the claim is paid.” And so it happened. There was an investigation done and an Expert Report compiled. Then the claim was repudiated under those very arguments of speed and due care.
Now – when your insurance repudiates your claim, you have the right to approach the Ombudsman for Short-Term Insurance (the OSTI), as this client did. She submitted her complaint and the OSTI gave the insurer 30 days to react to the complaint.
The insurer reacted by providing the “Expert Report” of course. It included some investigative work in the form of some measurements and some photographs. It also included one mathematical speed calculation that “proved” that the client’s vehicle was driving at an excessive speed. The repudiation was based on this result. The client was informed that the claim would not be paid.
When the client received her reply from the OSTI, she was given 7 days to reply. She was forced to find an expert who could investigate the case. She had to pay the expert, allow the expert to schedule the investigation, visit the scene, examine the vehicle, consider the evidence, review the Insurance’s Expert Report and compile a report with comments, within this restrictive time period. After anticipating challenges with this requirement, the client requested an extension to be able to address the report properly. She was granted two days’ extension. Nothing more.
This is where Stan got involved. Stan noticed several irregularities in the Insurer’s Expert Report and immediately visited the scene and examined the vehicle, despite the time constraints. Because the Insurer’s Expert Report included no reference information, Stan compiled a list of questions that the Insurer needed to get their expert to answer, before an answering report could be compiled for consideration by the OSTI.
When the list was sent to the Insurer, the Expert Report was supplemented by a second report. This report was essentially an admission of errors in the first report but still concluded that the driver was travelling at excessive speed. The original questions went un-answered though. The second list of questions was compiled and sent to the Insurer, via the OSTI. To this, the insurer mistakenly included the client in an internal e-mail wherein reference was made to a “connection” that could do a second report for the Insurer. The “connection” was appointed and was to examine the vehicle as well, for the purpose of compiling a new report. After some weeks, this third report was received and again – there were more questions than answers and Stan immediately identified several irregularities and even what seemed to amount to fraudulent references in the “connection’s” report.
When a new list of questions was sent to the OSTI and not satisfactorily answered, the OSTI declared the case “closed” and withdrew from the matter. The client’s claim has still not been settled, although the reports remain unjustified, to this day. A new application is being prepared for re-submission to the OSTI, with Stan’s complete and detailed report, to resolve this matter. The client is also considering legal action against the insurer and the experts that were called to investigate the collision.
In addition to this, per OSTI rules, if the client sought legal representation at any time, and once a legal process has been started against the insurer, the OSTI would withdraw in any event.
In another matter from 2014, another client drove her car in downtown Pretoria in a built-up area when – according to her – another vehicle encroached on her lane. She swerved to prevent a collision, left the road and collided with a wall. The insurer also appointed an expert who did a single-formula speed calculation and determined that the client was driving at an excessive speed. Same arguments, different case. In that case, the client sought legal assistance. The collision happened more than 3 years ago but the case has not even been finalized in court yet. In the meantime, the client is left paying for the car that was written off, for another car that she is now driving, for insurance for that new car and for all the legal and expert fees while the case is regularly postponed. This has cost the client much more than the cost of the car already – all because of the insurer repudiating on the basis of a speed calculation.
But Stan has additional concerns: “What I am starting to see, from this flood of repudiation cases, is that the same experts are typically involved. They consistently determine excessive speeding and – whether the car left the road in a single vehicle collision, rolled over, went through a wall, up to an embankment or through a fence, the same single formula is used in practically every case. This has gone so far that other experts in our industry started to discuss this concern with me and share my opinion: Speed is becoming the silver bullet of insurance motor claim repudiation.”
Stan has personally received as many as two new repudiation cases per week and other experts claim to have as many as 50 cases on their desks – all done by the same experts, appointed by different insurers, all using the same single formula, all-determining excessive speeding, all overlooking the same laws of physics, all failing to observe proper evidence collection protocols and all failing to refer to internationally accepted reference tables in favor of assumptions that are typically biased towards high speed determinations. A trend has developed, and Stan is very concerned about it.
“Look at this formula. I have gone as far as to put out a Twitter Post, telling people that – if you see this formula in an expert report - the chances are extremely high that the results are skewed against you or that the results are completely inaccurate.”
Stan has enough references available to justify this opinion. From his library of hundreds of books on crash investigation and physics, he refers to the formula and its value in the field of crash investigation.
He carries on: “Look at this… This is the Accident Reconstruction Manual from Northwestern University; the very institution that the experts I’m coming across claim to have received their training and qualifications from. Right here, on Page 71, that formula appears amid what is described as Basic Motion Equations. The book continues to make it clear that use of only these 12 equations reduces the confusion that beginning students often have! This, in itself, explains why I have an issue with results coming from this one equation or others like it,” says Stan. He is clearly irritated at the prospect that someone who has received training that would include this manual would not actually read its contents and then simplify a set of calculations that should precede or follow the use of the formula.
Stan continues: “See, this formula is – like any other formula – subject to accurate input values. You cannot arbitrarily plug in any values that yield the results you seek. But, in order for you to understand what I am saying, you need to understand what the formula is designed to achieve and what assumptions should be made before the input values can be used. The formula is designed to yield an initial velocity, when the end velocity, distance and deceleration rates are known. Take note – known. Not assumed or guessed. We will consider each in turn, to ensure that you can follow carefully.”
Stan grabs a model car and starts to illustrate its motion. He explains as follows, while he moves it over a distance: “See this car? As it moves across this table, you will see that the car is moving in a straight line and the wheels are rolling freely. Although very minimal, there is resistance to forwarding motion. If I now lock the wheels – put some tape to lock one or even four - and push the car and let it go, it will come to a stop quickly because there is some braking action now. If I know the distance it traveled over, the speed at the end – which is zero if it comes to stop naturally – and the deceleration rate, considering how many wheels are prevented from rolling, or how much it resists movement through friction, I can calculate what its speed was when I let it go. That’s the simple theory of what the formula is designed to do: It can give you the Initial Velocity, if the End Velocity (which is Zero, if the car comes to a stop), the Distance over which it moved and the exact deceleration is known.”
Now we have an idea of what Stan is saying. The Initial Speed of the car can be calculated, but only if we know exactly what the end speed is (for instance, if it stops, it will be zero), if we truly know how many wheels are locked and how much this will slow down the car and if we know the distance over which the car decelerated, right?
It is at this point that Stan lifts his finger and adds: “Ahhhh! But is it really that simple!?” Oh boy. Here it comes. We get flashbacks to the days in school, when our teachers explained mathematics while we followed every word – understanding less and less, the longer they tried to teach us… We can almost smell the classroom again. But Stan does not disappoint.
It is at this stage that we can see Stan is committed to not becoming too technical and that he is a true master of his craft. This stuff excites him to the point of tangible passion. His ability to simplify and explain the dynamics that should be considered leaves us impressed. We’re actually able to follow. OK –that’s a first…
Stan continues: “Let’s take one piece at a time, shall we? Let’s look at the one thing that we could all easily agree to – that we should agree to The distance over which the car moved (decelerated). See, the distance is measured along the path of motion of the vehicle. In order for us to agree on a distance, we should remember that we would likely not have been present when the collision happened. So, unlike me pushing a car on a desk, we will typically arrive on the scene and be left using clues to the distance over which the vehicle decelerated. The distance over which a car moved while decelerating, cannot be determined without there being any clues. A good example would be skid marks. If we can see the skid-marks left by a car – which was obviously decelerating, as it was braking – we can easily measure the distance from where the skid marks started to where they ended. You need to consider a bit more, like the wheelbase of the car and which wheels locked up, but let’s keep it simple.”
We agree to this. It is simple: Measure the length of skid-marks. Check. But Stan is not done yet.
“Not so quickly there! A typical motor vehicle, for this example, has four wheels. If a driver applies his brakes, one of many conditions could be achieved: All four wheels might lock up, only the front or rear wheels might lock up or only one wheel might lock up. This might leave us with one-, two-, three or even four different tires (skid) marks of differing length. Some might over-lap on top of others as the rear wheels follow the front and others might lock and skid only for part of the total distance over which the vehicle moved (decelerated). If a vehicle is fitted with ABS or if the driver does not break or only applies limited braking effort, there might not be any marks at all. A driver could also initially apply brakes and – while braking – see that he will not stop in time and apply more force, causing the wheels to lock up for only part of the distance over which the vehicle decelerated.”
Oh crap. So the distance measured is not simply the distance over which the vehicle moved. Now we’ve got it, thanks. But again – Stan continues…
“But this is simple only if the vehicle skids to stop on a single surface. But what do you think happens when it skids over several surfaces? Let’s say it leaves the road and goes onto the gravel and then onto the grass, as it is skidding? Is this still a single distance?”
Well of course. The vehicle “decelerated over a distance,” so surely this is a single distance – not so? We’re not so sure anymore…
Stan carries on: “No. It is not. If we were trying to use the single formula I spoke of, perhaps then it would be a single distance, and I see expert reports where this is done all the time. But if we refer to the Northwestern Manual again, we will see that – on Page 158 a specific example is used to illustrate exactly this. In that example, the problem where a vehicle moves over different surfaces, as it decelerates, is discussed – considering just two surfaces. When it comes to speed determination, the distance is not measured as a single value but rather broken up into sections, depending on the movements of the vehicle. Because the one part of this formula will be deceleration, the deceleration of the vehicle will obviously be different from when all four tyres are sliding on tar, for when only one is on gravel or for when two is on grass, and so on. So – for this formula to be used properly, each relevant distance must be measured individually, using the vehicle’s centre of mass as the point of reference. I see expert reports all the time, completely overlooking this aspect – this is why the formula is described as a basic formula. It is simply not that easy.”
Ok. So when you want to calculate a vehicle’s speed, the distance measurement cannot be just one value, if the car moves over different surfaces – there need to be individual measurements for each section of movement? Stan confirms. We feel our IQ increasing as Stan continues…
“Next, we need to consider the so-called Drag Factor, in order for us to calculate the deceleration. The same manual explains that the term Drag Factor will not be found in typical engineering mechanics or physics books. It has been used for many years in traffic collision investigation/reconstruction. Drag factor is defined as the force required for acceleration (or deceleration) in the direction of the acceleration (or deceleration) divided by the object's (vehicle's) weight. In short – how much of the weight of the vehicle is needed to move it across a specific surface. If a car weighs 1000 Kg and it takes 800 Kg to drag it across a surface, the Drag Factor can be described as 1000/800 or 0.8. So basically 80% of that car’s weight is needed to move it (drag it) across the surface. If we want to use the term deceleration – which is what is needed in the formula under consideration – we first have to determine the proper drag factor for a particular surface and, from that, calculate the deceleration rate.”
Oh. Ok. So the Drag Factor is 0.8. That makes sense. Can we calculate speed now? Again – we think we have it figured out: If you know the distance and the drag factor – which will be 0.8, you’re set! But Stan has more to say…
“Ahh! But again – it is not that simple. In order for us to determine the deceleration value to use in the formula, we need to accurately determine the Drag Factor. This is where we find most expert reports lacking the most. They grab a single value of (say) 0.8 and calculate the deceleration value, based on this. But now we need to be very careful: This is where even seasoned experts get it wrong almost all the time. Let’s go back to the car. If we locked all the wheels and pushed it across the surface, we would feel that it is harder to push than when the wheels were rolling. If we then lock only three, two or one wheels, we will feel that it becomes easier and easier to push. If we pushed it on glass, wood, sandpaper or rubber, we would also find that the force required to push the car varies.”
Ok – that makes sense. It is totally obvious; we state with a snort. Obviously, the car is sliding with more difficulty on rubber than on glass – glass is smoother! We’ve got it now!
Stan continues: “Then why, do you think, would people who purport to be experts in crash reconstruction still use a single drag factor – converted to a deceleration rate – when a car moves over several surfaces and while they have no evidence to determine whether one-, two-, three or all four wheels were locked or free rolling? I know the answer: Every consideration you make that reduces the total braking result, will lower the calculated speed. If you considered the evidence properly, you would admit that no evidence means no braking – so the lowest possible values. If you then used a drag factor of 0.8 for a car that moved over wet tar, onto gravel and onto wet grass without considering the number of wheels actually skidding, you would get a much higher speed result than if you considered each surface individually and admitted that you have no idea whether all four wheels were in a locked (maximum braking) state, or not.”
So is Stan saying is that a single distance cannot be used when a car skids over different surfaces or for when you cannot say how many wheels were locked? “Exactly,” Stan replies. He seems to be very impressed that we understand now. But there’s more, it seems, and Stan carries on…
“You see – the so-called Drag Factor is not only different for different surfaces; it is also different for wet versus dry surfaces. In the case of asphalt, it can even vary from newly laid (sharp) to traffic polished or even tar exposed. It also varies, based on the speed of an actual vehicle. When a vehicle is travelling at 30 km/h and brakes, the drag factor is actually higher than if it is travelling at 100 Km/h and brakes. Because road surface conditions can vary over time, such as when the road is wet versus dry, when there is loose sand on the road or not, or when the direction of movement changes, a single value cannot be used at all unless you are present on the day of the collision, immediately after, and conduct a series of tests on the road, in the same direction in which the vehicle was moving. The Society of Automotive Engineers released a paper, referenced as SAE 830621, that covers the many conditions and variables that should be considered before the analysis of collisions where drag factors feature. The paper specifically describes each surface type that most investigators will come across, under a variety of conditions and at different speeds and even considers the types of vehicles involved – but it uses a range of values and not a single value, for each. Wherever at-scene testing is not done, you will be presented with a range of possible values to use, to ensure that any error or specific deviation is included and for you to produce accurate results. Considering all this, it means that the speed determination, using this single formula under discussion – if you insist on using it - should satisfy a specific set of criteria, before any results can be trusted.”
- The total distance over which the vehicle moves must be determined accurately – from visible tyre mark evidence from beginning to end.
- The vehicle should skid over only one surface, from beginning to end.
- The vehicle should slide to a stop, on that one surface, without striking anything or sustaining any serious damages.
- The marks used to measure the distance must be proven – perhaps by tyre or track measurements – to be from the vehicle under consideration.
- The Drag Factor for the surface should be determined through testing, or a range of values should be used (normally two values), with reference to research papers and not estimated (as is typically done) to be as high as possible.
Stan adds more: “In any case, where any of the following occurs, the formula cannot be used in isolation anymore and should be supplemented by a series of additional calculations, for a variety of different surfaces, dynamics or damages.”
- If the vehicle moves over multiple surfaces.
- If the vehicle collides with anything else or does not come to a stop naturally.
- If there is not clearly visible evidence of the movement of the vehicle, along with the full distance of consideration.
- If the vehicle is not moving in a straight line, such as when it is in yaw (spinning out of control) or rolling over.
- If there is no way to determine exactly what a driver was doing, such as braking versus accelerating or doing nothing.
- If tyre marks cannot be conclusively linked to the vehicle involved or to even the specific wheel or wheels of the vehicle.
“I have seen the single formula method used so many times in cases – almost all cases – where the dynamics are simply too complex for such simplification. One cannot take a complex dynamics event, such as when a vehicle rolls over, skids over multiple surfaces or where there are other vehicles or fixed objects involved and simply calculate speed from this one formula. If your collision involves any of the complex dynamics mentioned but the report still only includes this one simple formula, you can be assured that the method used is incompatible with the model and results will likely be skewed and – more often than not – against you.”
So, we wanted to know from Stan what you could do, if your vehicle accident claim was repudiated because of a finding that you were speeding excessively and therefore not taking due care or taking steps to avoid or minimize risk. Stan had some handy advice ready:
“Consider your options carefully. If you make use of the OSTI, be sure to request a copy of the full report used to determine your speed. In this case, keep in mind that you might have to enroll the services of an opposing expert – history shows that the OSTI will not accept you as an expert in your own case. It is always ideal to have your expert assist you with the preparation of your OSTI submission. Once the submission is made, the insurer will have 30 days to respond. When you receive the response and an expert report is included, you will not be able to go much further without appointing your own expert. This route will cost you money for the expert, but the process through the OSTI is typically over within a month or two, their final word holds water and your claim is settled or a reply received reasonably quickly. After this, if you are still not happy, you can always pursue the legal route.”
“If you want to go the legal route immediately, you will have to hire lawyers or even advocates, you will need to pay them in advance most of the time, you are required to prove your case – the insurer typically doesn’t have to prove anything – it could take up to two years to get a court date and, if you lose, you might end up having to foot the bill for the insurer’s lawyers as well,” adds Stan.
He also adds the following advice: “In any case where there is any indication of tension – whether the case has been repudiated yet or not, consider appointing your own expert immediately to visit the scene to gather evidence, photographs and measurements and to examine your vehicle before any evidence is lost. If your insurer repudiates only after six months of arguments – sometimes more – you will be left with only the evidence they have, to prove your case. While it is true that it will cost you some money to hire your own expert, you should be aware that not having the best evidence puts you at an immediate disadvantage when you refer your case to either the OSTI or start a civil claim. In a perfect world, you should consider getting at least an accident training manual to ensure that you can gather the most important evidence after your accident or consider basic accident investigation training – before you need it. Considering the cost savings, you could enjoy by doing this, it is a small price to pay, when compared to the cost of an insurance repudiation or a lengthy trial.”
Stan Bezuidenhout regularly assists clients with Insurance Repudiations based on Expert Reports, can assist with the preparation of OSTI submissions and can testify in court, on your behalf, if it goes that far. Stan can be reached via www.ibfsa.com.
This article first appeared in “The Road Ahead” Magazine in December 2017 - http://www.roadaheadonline.co.za/