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‘Using but not driving car’

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  • 14-07-2019 10:45pm
    #1
    beechwood55
    Registered Users Posts: 532 ✭✭✭


    Just got renewal from Aviva. They have included a new clause :

    We will not pay for the following eccept where it is necessary to meet the requirements of road traffic legislation.

    Any accident, injury, loss, damage or liability which occurs where any person driving the car or any person using but not driving the car has at the time of the accident giving rise to the claim a breath/blood/urine alcohol/drug level above the legal limit ....

    Does ‘using but not driving the car’ refer to passengers?


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    #2
    Atlantic Dawn
    Registered Users Posts: 81,280 ✭✭✭✭Atlantic Dawn
    M


    How does someone use but not drive a car, have they a key but have not started the engine?


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    #3
    mickdw
    Registered Users Posts: 23,273 ✭✭✭✭mickdw


    What's the definition of using a car?
    If I owned a car and got my brother to drive me home from the pub, would I be using my car?


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    #4
    beechwood55
    Registered Users Posts: 532 ✭✭✭beechwood55


    mickdw wrote: »
    What's the definition of using a car?

    Unfortunately Aviva don’t say in the renewal document


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    #5
    beechwood55
    Registered Users Posts: 532 ✭✭✭beechwood55


    They surely can’t be saying that drunk passengers won’t be covered in the event of an accident?


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    #6
    Mongfinder General
    Registered Users Posts: 1,992 ✭✭✭Mongfinder General


    Sounds to me like they don't want to cover learner drivers picking up mates/relatives who are fully licensed drivers. For example, learner driver comes out of pub with at least one qualified mate, heads to night club, smashes up car but wasn't over the limit. However, mates were.


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    #7
    mickdw
    Registered Users Posts: 23,273 ✭✭✭✭mickdw


    My best reading of it is that where any person that caused damage or accident was over the limit, that claim would be denied. So if some drunk idiot opened his door into the side of another car, the insurer could refuse the claim.
    Now they would be bound to pay other party but could chase car owner for costs. They would certainly refuse to pay to fix damage to insured car.


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    #8
    beechwood55
    Registered Users Posts: 532 ✭✭✭beechwood55


    mickdw wrote: »
    My best reading of it is that where any person that caused damage or accident was over the limit, that claim would be denied. So if some drunk idiot opened his door into the side of another car, the insurer could refuse the claim.
    Now they would be bound to pay other party but could chase car owner for costs. They would certainly refuse to pay to fix damage to insured car.

    Ah ok
    That makes sense.
    I’ll call them tomorrow to clarify and will update !!


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    #9
    rubberdungeon
    Registered Users Posts: 606 ✭✭✭rubberdungeon


    Would it be a reference to using features such as cruise control, automatic parking and collision avoidance systems inferring you’re using the car rather than driving it?

    Or future proofing the wording for autonomous vehicles


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    #10
    fritzelly
    Registered Users Posts: 17,273 ✭✭✭✭fritzelly


    rubberdungeon wrote: »
    Or future proofing the wording for autonomous vehicles

    That's a great point!


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    #11
    Time
    Registered Users Posts: 993 ✭✭✭Time


    If they don't give any definition for what they class as "using" given the obvious potential contradiction then i fail to see how the clause would be be upheld if they attempted to enforce it.


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    #12
    jmreire
    Registered Users Posts: 8,315 ✭✭✭jmreire


    In the case of an L driver, completely drink and drugs free, accompanied with a full licence holder, as required by law, and full licence holder was drunk / had drugs taken etc. and the learner driver crashed???


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    #13
    Eggs For Dinner
    Registered Users Posts: 2,941 ✭✭✭Eggs For Dinner


    It's a belt and braces wording to cover all eventualities where the person in control of the car is above drink/drugs limits. 99% of incidents will be where it is a driving incident, but examples could be (as stated above) where someone opens a door in to oncoming traffic, or lets the handbrake off causing a crash

    It is a standard wording on most policies and will also include wording along the lines of stating that although they are obliged to pay 3rd parties, they can recover any outlay if you are found to be over the limit


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    #14
    NUTLEY BOY
    Registered Users Posts: 2,344 ✭✭✭NUTLEY BOY


    The concept of a user refers to a party for whose effective benefit a vehicle is being used.
    If I drive my aunt to a medical appointment in my car I am the owner and driver but she is the effective user.
    If she had a blue parking badge we could use that on the basis that the car was being used for her benefit.

    Offhand, I think that Aviva's restrictive wording seems unreasonable.
    How could the driver possibly assess the user type passenger before driving the car ?
    That is to hold even a most responsible driver to a somewhat unreasonably high - possibly unattainable - standard.

    I understand from looking at Aviva's car policy wording that they will even decline indemnity if the tyres are not within the prescribed thread depth.
    I think that even a careful average reasonable person might have difficulty in complying with that one !

    Are Aviva restricting their cover in this way to limit their financial exposure to claims ?
    Are they heading towards RTA only cover with a few glossy extras ?
    If so, they are going to make their products very unattractive to potential customers.

    Are such restrictions reasonable or unreasonable contract terms ?
    I am amazed that Aviva are doing this given that other motor policy wordings I have seen oblige the policyholder to exercise reasonable care in relation to maintenance and so on.
    What irritates me about this is that motor insurance is compulsory under statute.

    P.S. Maybe our legislators could outlaw these restrictions for the protection of insurance consumers.


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    #15
    beechwood55
    Registered Users Posts: 532 ✭✭✭beechwood55


    Just spoke to our broker
    The wording covers a situation where a person over the drink/drug limit sits in the driver’s seat and switches on the car possibly giving rise to a claim if car jumps forward and collides with another car or a person.


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    #16
    Eggs For Dinner
    Registered Users Posts: 2,941 ✭✭✭Eggs For Dinner


    NUTLEY BOY wrote: »
    The concept of a user refers to a party for whose effective benefit a vehicle is being used.
    If I drive my aunt to a medical appointment in my car I am the owner and driver but she is the effective user.
    If she had a blue parking badge we could use that on the basis that the car was being used for her benefit.

    Offhand, I think that Aviva's restrictive wording seems unreasonable.
    How could the driver possibly assess the user type passenger before driving the car ?
    That is to hold even a most responsible driver to a somewhat unreasonably high - possibly unattainable - standard.

    I understand from looking at Aviva's car policy wording that they will even decline indemnity if the tyres are not within the prescribed thread depth.
    I think that even a careful average reasonable person might have difficulty in complying with that one !

    Are Aviva restricting their cover in this way to limit their financial exposure to claims ?
    Are they heading towards RTA only cover with a few glossy extras ?
    If so, they are going to make their products very unattractive to potential customers.

    Are such restrictions reasonable or unreasonable contract terms ?
    I am amazed that Aviva are doing this given that other motor policy wordings I have seen oblige the policyholder to exercise reasonable care in relation to maintenance and so on.
    What irritates me about this is that motor insurance is compulsory under statute.

    P.S. Maybe our legislators could outlaw these restrictions for the protection of insurance consumers.

    You're stretching the definition of 'user' there Nutley. In the example you quote, your Aunt is not using the car to go to her appointment, you are using the car to do your Aunt a favour.

    This restriction is not new in the sense that most insurers have excluded losses of this nature, but the wording is getting tightened and standardised given recent amendments to laws on drink and drug driving

    Aviva are not on there own here. I'm not aware of any insurer who doesn't have a similar exclusion for own damage claims and it fits in to the dictate, that it would be against the public good to compensate a person who willingly and deliberately breaks the law. This exclusion is used and although I have seen it challenged, I've never seen one succeed

    Your 'irritation' on this matter given the compulsory nature of motor insurance doesn't stack up either. The reason it is compulsory is to protect other innocent road users and they are not affected by this exclusion


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    #17
    coylemj
    Registered Users Posts: 25,345 ✭✭✭✭coylemj


    beechwood55 wrote: »
    Just spoke to our broker
    The wording covers a situation where a person over the drink/drug limit sits in the driver’s seat and switches on the car possibly giving rise to a claim if car jumps forward and collides with another car or a person.

    Even if the person never intended the car to move, that would still qualify as 'driving' - he's in the driving seat, he turns on the engine and the car moves. How is that not 'driving'? What he did or did not intened is neither here nor there - by his action, the car moved under power so he drove it.

    I think the broker is wrong and that the situation envisaged here is as suggested by poster mickdw in post #7 above - a drunk passenger opening a door into the path of a cyclist or a passing car.


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    #18
    Time
    Registered Users Posts: 993 ✭✭✭Time


    coylemj wrote: »
    Even if the person never intended the car to move, that would still qualify as 'driving' - he's in the driving seat, he turns on the engine and the car moves. How is that not 'driving'? What he did or did not intened is neither here nor there - by his action, the car moved under power so he drove it.

    I think the broker is wrong and that the situation envisaged here is as suggested by poster mickdw in post #7 above - a drunk passenger opening a door into the path of a cyclist or a passing car.

    Theres no law the can require a passenger to give a blood or breath sample, so its completely subjective. I'm not convinced a court would uphold it.


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    #19
    mickdw
    Registered Users Posts: 23,273 ✭✭✭✭mickdw


    Time wrote: »
    coylemj wrote: »
    Even if the person never intended the car to move, that would still qualify as 'driving' - he's in the driving seat, he turns on the engine and the car moves. How is that not 'driving'? What he did or did not intened is neither here nor there - by his action, the car moved under power so he drove it.

    I think the broker is wrong and that the situation envisaged here is as suggested by poster mickdw in post #7 above - a drunk passenger opening a door into the path of a cyclist or a passing car.

    Theres no law the can require a passenger to give a blood or breath sample, so its completely subjective. I'm not convinced a court would uphold it.
    What about in the case of where the passenger is acting in the qualified driver role?


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    #20
    Time
    Registered Users Posts: 993 ✭✭✭Time


    mickdw wrote: »
    What about in the case of where the passenger is acting in the qualified driver role?

    The RTA only covers testing of the driver, and for a learner the qualified driver can be well over the limit and it’s still legal

    https://www.radiokerry.ie/law-doesnt-require-qualified-driver-accompanying-l-driver-alcohol-limit/


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    #21
    coylemj
    Registered Users Posts: 25,345 ✭✭✭✭coylemj


    Time wrote: »
    The RTA only covers testing of the driver, and for a learner the qualified driver can be well over the limit and it’s still legal

    https://www.radiokerry.ie/law-doesnt-require-qualified-driver-accompanying-l-driver-alcohol-limit/

    It's an interesting situation. The law specfies that the Garda power to demand a breath sample 'applies to a person in charge of a mechanically propelled vehicle in a public place'.

    http://www.irishstatutebook.ie/eli/2011/act/28/section/7/enacted/en/html#sec7

    In the case of the learner who is accompanied by a person with a full licence, it could be suggested that he (the 'qualified person') is the person in charge. But that would let the driver off the hook if he was drunk since the Garda would only be able to demand a breath sample from the front seat passenger! So it's obviously the case that once there is someone sitting in the driver's seat, that person is always the 'person in charge'.


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    #22
    beechwood55
    Registered Users Posts: 532 ✭✭✭beechwood55


    Aviva have confirmed that a passenger is a person who is considered to be using the car.
    If a passenger is over the drink/drug limit and causes an accident by for example grabbing the handbrake or steering wheel then Aviva will not pay out except where required to by legislation.
    The onus is on the driver to ensure that passengers don’t do stupid things.


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    #23
    coylemj
    Registered Users Posts: 25,345 ✭✭✭✭coylemj


    beechwood55 wrote: »
    Aviva have confirmed that a passenger is a person who is considered to be using the car.
    If a passenger is over the drink/drug limit and causes an accident by for example grabbing the handbrake or steering wheel then Aviva will not pay out except where required to by legislation.
    The onus is on the driver to ensure that passengers don’t do stupid things.

    How is Aviva going to find out that the passenger was drunk or high on drugs? The Gardai can only demand a breath sample from the 'person in charge' so that lets the passengers off the hook, even if they're all p1ssed or high as a kite.


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    #24
    Odyssey 2005
    Registered Users Posts: 21,065 ✭✭✭✭Odyssey 2005


    Mongfinder General wrote: »
    Sounds to me like they don't want to cover learner drivers picking up mates/relatives who are fully licensed drivers. For example, learner driver comes out of pub with at least one qualified mate, heads to night club, smashes up car but wasn't over the limit. However, mates were.

    The qualified driver cant be pissed. He/she must be able to drive the car if necessary

    Edit. Just read the whole thread. I understood that the qualified driver has to be able to drive if necessary. The above says differently, bit of an Irish solution to an Irish problem !!


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