Road Rage : Part 4

Q: Oftentimes, I loan out my car to people in the neighborhood.  One day, I lent it to a guy I knew casually – only by his first name.  Let’s call him Shifty.  He returned the car with a small scratch.  When I questioned him about it, Shifty admitted that it had been scraped by another car.  He would not give the details.

My insurance company is refusing to cover: says the accident was staged.  Shifty is nowhere to be found.

A: No-fault insurance policies only cover vehicular accidents.  By definition, an accident is unintentional.  A deliberate collision is not an accident.  Therefore, damages resulting from a deliberate collision are not covered by no-fault insurance.

It does not matter whether the intentional collision was, or was not, motivated by fraud.  For example, there would be no coverage if Shifty (with fraud the last thing on his mind) deliberately rammed the car into the car of a person with whom he had been fighting.  While some intentional collisions are the products of insurance fraud schemes, others are not.  The focus must always be on whether the collision was deliberate or a true accident.

In the no-fault context, you need not prove coverage as part of your ‘prima facie’ case.  Instead, you have a presumption of coverage.  If the insurer claims lack of coverage – i.e., because the collision was not actually an accident – then the insurer has the burden to come forward with evidence.  Some courts have said that the insurer must prove non-coverage by evidence that is ‘clear and convincing’.

There is no magic formula for what the insurer must show.  Elements of proof include the profile and claim history of the car, lack of emergency room treatment, discrepancies in the occupants’ stories and the driver’s denying knowing the owner (or vice versa).

Fortunately, cases of fraud or non-coverage are relatively rare.  I hope yours is not one of them.  Always tell your lawyer the truth.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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