Advice on a Collision Damage Waiver

[revolting peasant]

If the non fault party didn't take CDW on an essential hire car and was involved in an at fault accident in that car, he would have to pay the excess which would not have been applicable to his own policy. Had it not been for the negligence of the driver responsible for the original accident, the TP would not have been driving a hire car in the first place, so would not have incurred the loss of the excess.

 

There are 2 options here as I see it. The driver takes CDW and protects himself from the excess on the hire car OR leaves himself liable to the excess and in the event of an accident in the hire car attempts to recover the excess from the TP insurers in the accident which gave rise to the need for a hire car in the first place.

 

As a consequential loss it would be difficult to prove as there would certainly be contributory negligence on the part of the hirer but it would still be a cost they would not otherwise incurred but for the fault of the TP in the original accident.

 

If that makes sense - explain it to me;)

[Mossycat]

All i can say then in this case is why cannot someone, involved in an accident, claim back anything above RTA only (third party - told you it was a while!) insurance premiums? the principle (and indeed the situation) seems be the same.

 

Hi Gyzmo

 

I see your point but following an accident there will be certain unisured losses, where these are fair and reasonable they should be allowable.

 

When somebody insurers their car they choose the level of risk that they are happy with, some people go for third party and some go for comprehensive with an excess and some go for comprehensive without an excess (Yes there are other levels but let's keep it simple). The level of cover they choose reflects what they are happy with, personally I do not want the unknown cost of an excess or the unknown cost of third party insurance because I do not know if (and how many times) that car will be hit by an unisured motorist, vandalised, stolen or any other incidence of claim will arise. I pay extra for a no excess policy and I am happy to do that.

 

So when I have to hire a car through no fault of my own I want that car to be on the same terms as my own car ie no excess. If I had a policy with a huge excess then a CDW is not an essential item and I wouldn't expect someone to pay for it, however the fact I have demonstrated what is essential to me by not having an excess should mean that the responsible party allows me to carry on driving IN THE SAME circumstances as I would otherwise have done had the accident not occured.

 

I have a feeling that the third party insurers will capitulate once I issue (they usually do), so I will let you know.

 

Mossycat

[revolting peasant]

So when I have to hire a car through no fault of my own I want that car to be on the same terms as my own car ie no excess. If I had a policy with a huge excess then a CDW is not an essential item and I wouldn't expect someone to pay for it, however the fact I have demonstrated what is essential to me by not having an excess should mean that the responsible party allows me to carry on driving IN THE SAME circumstances as I would otherwise have done had the accident not occured.

 

Spot on MC and that is your argument in court (if it gets that far). The only thing I would suggest is the bit I have highlighted should be that "it is reasonable to expect that the replacement car is on the same terms as your own insurance".

[Deano1000]

Upon receiving a hire vehicle a customer is not in the same position after the accident as he/she was before.

 

He/She is not on his/her own vehicle, but the hire company's.

 

He/She is obliged to return the hire vehicle in the same condition as he/she had received it.

 

Were his/her own bike damaged, he/she could have deferred repairs, performed his/her own repairs or not even bothered with repairs. These courses of action would not have been options with a hire vehicle.

 

Should the customer be responsible for damage to the hire vehicle, he/she would be subject not only to a claim for repair costs, but also loss of use profit whilst the vehicle is out of use.

 

By causing the customer to utilise a hire vehicle the third party has exposed him/her to risks which he/she did not previously face.

 

Therefore, nil excess he/she achieves by result of paying a Collision Damage Waiver is a reasonable arrangement, consequential on the third party's negligence.

 

The issue of recovery of payments for Collision Damage Waivers has been decided upon by the Court of Appeal in the unreported case of Marcic v Davies (1985), where the Court held that the claimant who hired a replacement vehicle and paid the waiver fee to achieve a nil excess 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 hire company. It was entirely reasonable that he should pay the waiver fee to cover himself against contractual liability which he would otherwise never have been under” – per Lord Justice Brown Wilkinson.

Please also see Bee v Jenson [2006] EWHC 3559 (Comm) pp 15,16.

 

I trust this assists.

[Mossycat]

I trust this assists.

 

Deano, Thank you so much for that, I issued proceedings last week and fully expect the third party insurers to pay into Court the amount I issued for, but should it proceed your post will be put to good use.

 

Thanks again for taking the time and trouble to post all the information you did

 

Mossy

[Deano1000]

Deano, Thank you so much for that, I issued proceedings last week and fully expect the third party insurers to pay into Court the amount I issued for, but should it proceed your post will be put to good use.

 

Thanks again for taking the time and trouble to post all the information you did

 

Mossy

 

Mossy,

 

I utilise this argument in my negotiations with insurance companies.

 

It never fails because it is the law.

 

Certain people who look at the scenario from the wrong angle assume that CDWs are betterment, but that is simply incorrect due to what I have explained.

 

Good luck with proceedings and remember Marcic v Davis and Bee v Jenson

[Mossycat]

OK This is going the distance.

 

Just to clarify, laibility is NOT in dispute, the third party was totally honest (he even sent me a copy of the claim form he filled in which admits we were stationary and he failed to stop in time). The third party insurers have made an offer for the injuries (which is a fair one), they accept the hire charges and out of pocket expenses, but they still refuse to accept the CDW (I asked them if I had had a £250 excess would they be arguing, they said 'No we wouldn't argue about that we would pay it, but we are not paying the £63 CDW').

 

So I issued (special thanks to Deano1000 the case references you provided were spot on) and I expected them to pay in (to be honest I expected them to agree settlement when I sent my 14 day notice to them), instead they have filed a defence.

 

Court date is set, the stupid thing is that the cost of the summons and interest accrued is more than £63, I even told them this and suggested that they pay before I issued but no.

 

Oh well, I'm going in confident (I usually go in confident but I don't usually get to represent my girlfriend!!!!!!)

 

I'll let you know the final outcome when it occurs

 

Mossy

Edited September 16, 2008 by Mossycat

[Deano1000]

Hi Mossycat,

Please do keep me updated on the progress of your claim. Do you have a trial window?

Did you issue online using the moneyclaim service?

Let me know if you require a copy of Bee v Jenson [2006] EWHC 3559 (Comm).

Deano

[Mossycat]

Hi Deano

 

No worries about posting the result.

 

Nope didn't issue online, decided (on this one) to draw the proceedings up and then send a copy to them (beforehand so they would see my intent) but to no avail.

 

Mossy

 

PS I downloaded the whole transcript of Bee v Jenson (once you mentioned it I knew exactly where to look), but thanks for the offer.

[Mossycat]

Update

 

Third party's insurers paid in full (including the CDW), all their stalling did was cost them more in Court fees and interest.

 

Thanks to all who contributed and helped

 

Mossy

[Deano1000]

That is great news and a great moral victory.

 

I have been reclaiming an abundance of CDWs recently, so it appears the ignorance is now being replaced with an appreciation of the law !