Insurance subrogation is a concept new enough for the Russian legislation, borrowed from foreign judicial practice, in particular, English and German. Therefore, when searching for ways to use it, references to foreign experience will be legitimate enough.
The way of resolving property disputes
Subrogation in translation from the Latin language (subrogation) means replacement. Subrogation in insurance is a legally justified transfer of the right of claim, in fact, representing one of the varieties of assignment of the right of claim. For the most significant protection of the material interests of the insured, compensation is provided for the potential damage stipulated in the contractual obligations. To resolve a property dispute, insurers (beneficiaries) avoid rather unpleasant difficulties in finding the guilty person.
However, the insurer has the right not to pay insurance compensation to the beneficiary in the absence of material confirmation of the damage suffered in the form of various documents, expert opinions, etc.
The concept of regression
Regression is the right of the reverse claim, in which the person who has made compensation for the harm inflicted by another person has the right to demand reverse regression to this person. For example, if the transport company as the owner of a motor vehicle has compensated for the harm caused by its employee, it has the opportunity in the legal field to reimburse its costs, that is, to regress.
In fact, this means that the insurer is not regarded as a person who has compensated for harm, since he does not act as a subject of harm compensation, and insurance compensation is an act of damages to the insured that appeared in the process of bringing him to justice because of harm caused to a third party. Thus, the regression procedure compensates the insured, not the injured party.
Similarity of insurance claims
It would be a mistake to consider subrogation as one of the varieties of regressive claims. But these concepts have similar features, subrogation and regression in insurance are provided by contractual acts and legislative law: a regressive claim is established by Article 14 of the Federal Law on MTPL, and subrogation - by Article 965 of the Civil Code of the Russian Federation only with regard to insurance legal relations. Both definitions are types of right of claim that arise only when there is another obligation. In addition, the main obligation is terminated by its execution, made by a third party. It is this execution that is the basis for the occurrence of these insurance cases.
Subrogation and regression in insurance, their differences
The difference between regression and subrogation is primarily the different mechanisms of action. If subrogation in insurance is a variant of the transfer of the right of claim, then regression is already a new obligation. It should be noted that they are distinguished by various regimes of legal regulation, as well as the limitation period.
Principle of subrogation
The basic principle of subrogation in insurance is the transfer to the insurer that paid in accordance with the contract, the right to demand compensation for the amount of loss incurred to the person guilty of the damage caused.
Regulation of such legal relations is carried out by the insurer with observance of the established legislative and local acts. Thus, subrogation in insurance is a special kind of economic interactions based on the redistribution of the risk associated with causing material damage to the parties involved in the process. Moreover, this kind of activity is carried out by specialized organizations accumulating insurance premiums and making insurance payments when inflicting a loss in relation to insured property interests. In accordance with Art. 965 of the Civil Code, unless otherwise stipulated in the contract, the insurer who paid the compensation receives the right to claim this particular amount of loss from the person responsible for it.
The amount of loss on subrogation
At a loss (clause 2 of Article 15 of the Civil Code of the Russian Federation) is understood:
- The amount of expenses incurred at the moment or in the future to restore the violated rights.
- The amount of actual damage, expressed in loss or damage to property.
- The amount of loss of profits, that is, not received income, which the injured person would have received in the event of non-violation of his rights, if the civil insurance turnover occurred in the usual way.
Thus, the compensatory nature of subrogation provides for compliance of material liability with the amount of damage caused.
Procedure for receiving a claim
Quite often an insurance company sends a letter to the culprit of the accident, containing a list of articles of the Civil Code and the circumstances of the accident, and a summary text informs about the need to repay the debt for a specific amount.
However, following the order of subrogation, it is necessary to check the full package of claim documents for pre-trial resolution of the conflict situation, which should include the following positions:
- Documents determining and confirming the amount of damage caused should consist of an inspection certificate of the car by an independent examination with photographs and costing of repair works or a bill of payment for the work done.
- Documents confirming the fact of committing an accident by the guilty person. The justifying evidence is a certificate of the State Traffic Safety Inspectorate (under Form 748) and a court decision or ruling from the State Automobile Inspectorate.
- Documents or their copies confirming the rights of the guilty person - a certificate of state registration, as well as insurance for the vehicle, checks for its payment and a statement of the occurrence of the insured event.
If the insurance company does not present all the documents substantiating the right of subrogation, it is necessary in their address to make a response to the claimed claim. This letter can be sent by mail with a notification or personally provided to the secretary by writing down the number of the incoming document.
Drawing up a review letter
A review letter or a review is made very carefully, and if necessary, it can be ordered from auto experts. It is necessary to check the compliance of the State Traffic Safety Inspectorate with the declared damages for repair work, check the compliance of the norm-hours with the technological work on the car restoration.
If the amount of damage is justified by the insurance company not according to the actually paid repair services, and in accordance with the calculation of an independent expert examination, only the expert company has the right to challenge the calculation made by them. Simultaneously with the review to the insurance company, it is desirable to send a cover letter, the purpose of which may be to reduce the amount of the recoverable loss or to restructure the debt, and draw up a schedule for its repayment. Also this letter is able to help focus attention on the seriousness of motives in defense of their rights, as well as justify an application for reimbursement of funds used for legal services in court.
Work on collection
The subrogation is usually collected by various legal agencies and involves various types of services:
- Audit of archival data and critical analysis of insurance contracts to determine the amount of debt and the potential for recovery.
- Preparation of documents for compensation of damage in pre-trial order, as well as the preparation of lawsuits.
- Organization of telephone calls, electronic messages and departure at the place of residence to individuals who are debtors. In this case, the maximum emphasis is placed on the implementation of pre-trial recovery.
- Protection of the interests of the client in court, as well as in the service of bailiffs.
- Collection of funds.
- Providing a guarantee for the guilty person of an adequate assessment of the amount of subrogation, regulated by law and not exceeding insurance payments.