Short term insurance and motor vehicle collision law

Over 100 years’ combined insurance law experience.

Introduction

Modern life is fraught with risks that, upon materialisation, not only cause monetary loss but potentially non-monetary and sentimental loss too.

Human nature is to seek to reduce the effect that these emerging risks have on our lives now and into our distant and uncertain future.

To mitigate our losses, we take out insurance policies to cover the risks associated with our motor vehicles, property, households, businesses, income and lives. This has created a thriving and multi-million-rand insurance industry. However, like any industry, it cannot exist unregulated.

  • Insurance law is an umbrella term for several categories of legal and insurance processes, legislation and best practice that govern both the long-term and short-term insurance industries.
  • Short-term insurance refers to insurance coverage for immediate or close risks that pose a threat to daily life, as in your motor vehicle, property, household, business and health.
  • Long-term insurance refers to insurance coverage for distant and/or future risks that pose a threat to your life in the long run (death and disability) and involve life cover, personal accident liability and retirement annuities, among others.

Both long-term and short-term insurance industries are regulated by the Insurance Act 18 of 2017. Insurance companies, underwriting managers and brokerages, regardless of whether they supply long-term or short-term insurance products, are governed and controlled by this Act.

A further measure is in place to assist the public when they feel aggrieved by their insurance company or brokerage’s decision to repudiate a claim or not cover a risk. The public can approach the offices of the Long-term Insurance and Short-term Insurance Ombudsmen. The Ombudsmen facilitate the review of such decisions in accordance with the Act and what is fair and reasonable.

If the public still finds no relief, they can and may consult with attorneys for assistance.

Hooker Incorporated is the final battalion for the public and we are excellent at what we do.

We have over 100 years’ combined insurance law experience and a formidable depth and scope of knowledge.

Many government departments and other organisations require document from you that must be verified as legal and authentic for it to be recognised by them. The type of proof of authenticity varies between countries and organisations. They could require documents be notarised by a Notary Public, an Apostille certificate to be attached, or authenticated with a signature and seal.

Who are we?

With a name like ours and our far-reaching insurance-legal network, you will not easily forget Hooker Incorporated.

After 20 years of experience at Deneys Reitz (now Norton Rose Fulbright), Russell Hooker started Hooker Incorporated in 2008 with the sole purpose of de-mystifying insurance law and providing stellar, transparent and affordable legal services for our clients.

With us, what you see is exactly what you get.

Through our many years of practising for and in the insurance-legal industry, we acutely understand our clients have assorted reporting and fee structure pre-requisites. We pride ourselves on adapting to our client’s evolving needs for faster, efficient and more affordable legal services.

We have open discussions and negotiations with our clients to determine the most suitable fee arrangement and payment structure. These may include a fixed-tiered tariff depending on the amount claimed; a fee for time worked at a fixed rate per hour; conduct work on a contingency basis where we charge a fixed percentage of the outcome amount we successfully recover for you and no fees are payable up front. Finally, we can create a charge-out package, based on a hybrid of the above methods.

We are not about charging exorbitant or hidden fees that put you out of pocket.

You will always know what fees you are in for, and you will be aware of the progress and work we have completed.

That is our promise to you.

Who do we serve?

Our clientele is diverse and ranges from multi-national household name insurance companies, to underwriting managers, small to large brokerages and the all-important single individual.

What exactly do we do?

Hooker Incorporated aims for amicable dispute resolution in all cases, but when this is not possible, we meet our opponents in court.

  1. Motor vehicle recoveries and liabilities

Our legal team deals with both motor vehicle recovery and liability claims, from pre-litigation to trial on a daily basis.

What does this mean?

Motor vehicle collisions occur every day and are unfortunately inevitable.

A motor vehicle accident claim aims to recover costs of damages sustained to your motor vehicle arising from a motor vehicle collision and against another party who was negligent and liable in causing the collision.

Remember that individual (third party) who collided with the rear end of your vehicle? You can claim the amount to repair your vehicle from them individually if they are uninsured.

However, a comprehensively insured motorist, like you, may prefer to deal with your own insurer when claiming for repairs to your vehicle. This process is much easier and more reliable in getting your vehicle repaired and is free of the hassle and expense of claiming against a third party.

But really, who is claiming from who? Legalities and the doctrine of subrogation.

The principal of subrogation is well-known in South African law. It enables an insurer, after it has paid out the insured for loss incurred, to claim against the third party who caused the damage or loss. The insurer steps into the shoes of the insured, giving rise to the claim.

Generally, insurers incorporate clauses in the policy document in terms of which the insured is obligated to cooperate with the insurer. The insured may be required to refrain from committing any act or omission which may diminish a claim by the insurer against the third party. Practically, this requires a policy holder to refrain from entering into settlement negotiations with a third party or making any admissions of liability.  Often, an insurance policy holder will compromise an insurer’s claim without being aware they are doing so.

A policy holder should be well acquainted with the policy documents which sets out the extent of the insurance cover. It is always advisable for the insured to comply with the insurer’s requirements and to let the process run its course without any unnecessary complications or interference.

Recovery process

If a third party was negligent and caused a collision with you and you decide to claim repairs to your vehicle from your insurer, your right to claim damages from the third party is subrogated in favour of your insurer. Your insurer will thereafter attempt to recover the claim amount paid out to you from either the third party or the third party’s insurer.

If successful and applicable, your insurer will probably refund you the excess you had to pay. Alternatively, we will recover the repair amount in full.

Liability or third party claim process

If you were negligent and caused the collision, you may face a claim from the third party or their insurance company for the amount needed to repair the motor vehicle you damaged. This is irrespective of whether you have claimed from your insurance company for your own vehicle repairs.

Hooker Incorporated acts for insurance companies, underwriting managers, brokerages and individuals in recoveries and liabilities. We endeavour to recover the full quantum of repairs to your vehicle from the third party or their insurer, or alternatively reduce the amount that you or an insurer has to pay to a third party for repairs.

Rejections/Repudiations

There are instances, however, when your insurance company may reject or repudiate your claim consequent to the following:

  • Premiums not being paid
  • Non-disclosure or material misrepresentation of facts
  • A driver is unlicensed or unspecified in the policy schedule
  • A vehicle is unroadworthy
  • A driver was driving recklessly or under the influence of alcohol or narcotics
  • No tracking and security device was installed in a vehicle, if specifically required by an insurer in terms of the policy

Apart from approaching the Ombudsman within 60-90 days of your claim being repudiated, you can also enlist Hooker Incorporated’s services and we will facilitate the process of appealing your insurance company’s decision. This may include initial roundtable settlement negotiations and/or meetings with your insurer. If there is no amicable resolution, we will institute legal action and take them to court.

We also act for insurers in cases where the insured has breached the contractual terms and conditions of the insurance contract. In such circumstances, we assist the insurer to reject the claim brought by the insured who caused the breach.

  1. Legal Proceedings Against Certain Organs of State Act 40 of 2002
  2. Prescription Act 68 of 1969
  3. National Road Traffic Act 93 of 1996
  4. Promotion of Access to Information Act 2 of 2000
  5. Protection of Personal Information Act 4 of 2013
  6. Financial Advisory and Intermediary Services Act 37 of 2002.
  1. Non-motor recoveries

Hooker Incorporated also handles disputes between underwriters and insurers, personal injury claims, business interruption claims and all manner of public liability claims such as fire, theft or goods in transit claims.

We also assist businesses and claimants with ‘slip or trip’ matters. These are claims arising from an injury sustained as a result of a claimant slipping and falling due to somebody else’s apparent negligence, for instance, vegetable matter being left on a supermarket floor.

  1. Business interruption claims

If your business suffers a closure or ceases operations due to a disaster which results in  direct physical loss or damage, the ancillary associated loss of income will be covered by business interruption insurance.

Business interruption is not sold as a separate product and cannot be taken out as a policy on its own. It usually accompanies and is present in household or commercial policies.

A successful claim for business interruption is nuanced and not a foregone conclusion despite the cover being in existence; particularly if the business interruption occurred as a result of an infectious disease outbreak.

Sample case:

Media summary of the case Guardrisk Insurance Company Limited v Café Chameleon CC

The Supreme Court of Appeal (SCA) today, in a unanimous judgment, dismissed an appeal by Guardrisk Insurance Company against a judgment of the Western Cape High Court upholding an insurance claim by Café Chameleon arising from the Covid-19 pandemic.

It ordered Guardrisk to pay the costs of the appeal, including the costs of three counsel. Café Chameleon operates a restaurant business in Cape Town. On 27 March it was forced to close its business following the lockdown announced by the President. It suffered huge losses, as did many other businesses. It claimed these from Guardrisk, with whom it had an insurance policy. The policy covered Café Chameleon for ‘loss . . . resulting in interruption of the business due to notifiable disease occurring within 50 km of the premises’.

It defined a notifiable disease as any ‘illness sustained by any person from any human infectious or human contagious disease, an outbreak of which the competent local authority has stipulated shall be notified to them’.

When the lockdown was announced, Cape Town accounted for 25 percent of the reported cases nationwide and was thus predominant cause for the government’s imposition of the lockdown. Guardrisk argued that Café Chameleon’s losses were not due to the occurrence of Covid-19 within 50 km of the business but because of the lockdown. And further that the purpose of the lockdown was to curb the spread of the disease throughout the country; it was not aimed specifically at dealing with the outbreak in Cape Town. The SCA, however dismissed the argument.

It accepted Café Chameleon’s submission that its business interruption was caused by both the occurrence of the Covid-19 within the 50 km radius and the government lockdown. And also said that a fair reading of the policy provided cover for both the outbreak of the disease and the government’s national response, which included a lockdown in Cape Town.

Frequently asked questions

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