Vehicle repair with civil liability of the perpetrator - original or spare parts?

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A car leaving the showroom is already losing its value, and this is only an initial decline, which will increase with each passing year. Insurance companies try to take advantage of this, as they rely on spare or used parts when assessing vehicle repair costs under third party liability insurance. They justify this practice by the fact that, if the vehicle is not new, the installation of new parts in it will increase the value of the vehicle and will result in unjust enrichment on the part of the injured party. Are they right? The described procedure is called by insurance companies "amortization of parts under third party liability insurance". In the opinion of insurers, due to the period of operation of the vehicle, its age or brand, there is a need to make the prices of parts installed in repaired vehicles real and equal by the percentage of depreciation. By sticking to this position, insurers save hundreds of thousands of zlotys every year, which in fact should be allocated to repair the vehicle with the perpetrator's liability insurance in a proper manner.

How do insurance companies work?

In practice, insurance companies calculate the depreciation of vehicle parts from 30% for one-year and two-year-old cars, to even 80% for the repair of ten-year-old and older cars. Insurers make deductions both when the damage is settled in the form of a cost estimate, i.e. in a situation where the owner of the damaged vehicle receives a cash benefit from the insurance company on the basis of a document calculating the expected costs of repairing the damaged vehicle, as well as when the injured person repairs "on his own" hand ”and then presents the insurance company invoice for the repair of the vehicle. In the first case, the plant in the cost estimate informs that the prices of the parts to be used for repair have been reduced by the percentage of depreciation. In the second case, the fact that the depreciation was made is evidenced by the corrections made to the copy of the invoice documenting the repair of the vehicle and, of course, the reduced amount of funds paid to the aggrieved party.

The victim's right to full compensation

Issues related to obtaining compensation from the civil insurance of the owner or driver of a motor vehicle have been regulated in the Act on Compulsory Insurance, the Insurance Guarantee Fund and the Polish Motor Insurers' Bureau. Pursuant to Art. 34 sec. 1 and art. 36 sec. 1 of the Act, compensation is determined and paid within the limits of civil liability of the owner or driver of a motor vehicle, if they are obliged to compensate for the damage caused in connection with the movement of that vehicle. It follows from the above that the amount of compensation is defined by the limits of the perpetrator's civil liability. In order to determine the above liability, refer to the general rules of the Civil Code relating to the scope of compensation and the choice of the injured party to redress the damage. Pursuant to Art. 361 § 1 of the Civil Code, the obligation to redress the damage covers the losses suffered by the aggrieved party and the benefits that could have been achieved if the damage had not been done to him. Under Art. 363 of the Civil Code, redressing the damage consists in restoring the previous state, unless the aggrieved party chose the benefit consisting in the payment of an appropriate sum of money or for the benefit in money, there are special circumstances. It follows that in the event of damage, the aggrieved party should receive full compensation. Restoring the damaged item to the previous condition should include bringing it to the working condition and quality in the scope existing before the accident. If, therefore, to restore the damaged vehicle to its pre-collision form, it is necessary to use new parts, because it is not possible to paint, straighten or punch parts of the vehicle, then the expenses incurred for them are part of the necessary and economically justified costs of repairing the damage, which are entirely borne by the perpetrator collisions, and in the case of third party liability insurance - an insurance company.

The operation of insurance companies and jurisprudence

The actions of insurance companies based on the assumption that the repair of a vehicle used for a certain period of time with the use of new parts would lead to unjust enrichment of the injured party is not based on the jurisprudence. The statement that it is necessary to reduce the amount of compensation by the depreciation coefficient due to the fact that the vehicle damaged as a result of a road collision is a used vehicle (this also applies to several-month-old or several-year-old cars) is unjustified and indicates unlawful practice.

In the event of damage to a given part of the vehicle, it should be replaced with a new one, if the damage resulted in a reduction in its utility value, and the possible repair will not fully restore it. This is reflected in the general principle of compensation, according to which, in the event of loss of property, the aggrieved party may claim a sum of money needed to purchase a new item in full. The above is confirmed by the judgments of the Supreme Court. Pursuant to the Resolution of April 12, 2012 (file reference: III CZP 80/11), "the insurance company is obliged, at the request of the injured party, to pay, under the liability under third party liability insurance of the owner of a motor vehicle, compensation covering intentional and economically justified costs. new parts and materials to repair the damaged vehicle. If the insurer shows that this leads to an increase in the value of the vehicle, the compensation may be reduced by an amount equal to that increase. '

A similar position can be found in many judgments of common courts, i.e .:

  • Since the repair of the vehicle performed by the claimant did not increase the value of the vehicle and did not result in the vehicle having a higher value than on the day the damage occurred, and the replacement of the damaged element instead of its repair with a new one increases the value of the collision vehicle compared to the value that it would have gained in the case of repairing a damaged element, it should be stated that it is the replacement of the damaged element with a new one that brings the claimant closer to restoring the vehicle to its previous condition and compensates her for the damage suffered more"- the judgment of the District Court in Suwałki of July 31, 2009, file ref. act V GC 24/09;

  • The injured person had a car consisting of original parts - such cars are, as a rule, commercially available. No one in this case showed that before the collision certain parts in the victim's car were not original. Thus, it should be considered that the right to restore the condition from before the damage was caused includes the possibility of requesting replacement of original parts - original, and non-original - non-original ones. However, even if one accepts the view that the replacement of original parts with non-original parts is permissible, the materials of the case do not allow it to be established that the non-original parts to be installed would be at least of the same quality as the original parts. On the contrary - the materials of the case indicate that such a finding is not possible. Notwithstanding the foregoing, in the opinion of the court, the right to compensation means the right to replace the damaged parts with the same parts, and not with parts imitating such parts."- the judgment of the District Court for Łódź - Widzew in Łódź of January 28, 2008, file ref. II C 725/06;

  • The injured party has the right - since the repair of the damage is to consist in restoring the previous state - to make repairs based on original parts"- the judgment of the District Court in Łódź of January 8, 2010, file ref. II C 190/09.

The aggrieved party claiming under third party liability insurance may demand - in the event of damage to a motor vehicle - that the due compensation be determined based on the prices of new parts without any depreciation deductions.On the other hand, the use of depreciation deductions is allowed only in exceptional cases - only when the use of new parts would lead to an increase in the value of the entire repaired vehicle. In such a situation, the compensation may be reduced only by the amount of the increase in the value of the vehicle in relation to the condition before the damage. At the same time, the burden of proof of demonstrating the increase in the value of the vehicle compared to the state before the claim rests solely with the insurance company. Thus, it should be recognized that the application of depreciation deductions by the insurer in a situation where the damaged vehicle was used for some time is not authorized and is not confirmed in the law and current jurisprudence.

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Depreciation of the replaced parts and the rights of the injured party

If the insurance company applies the unjustified depreciation deductions described in this article, the aggrieved party should appeal to the insurance company.

However, if the aforementioned appeal against the insurer's decision does not bring the desired results, the aggrieved party may file a complaint with the Financial Ombudsman. The institution of the ombudsman was established precisely in order to fight against illegal activities of financial entities, including insurance companies. Unfortunately, its assessment and opinion are not binding on the insurer, which makes it not a sure "remedy".

Therefore, if all the indicated institutions fail, the aggrieved party will be forced to go to court with a claim for payment.

Repair of the vehicle with third party liability insurance of the perpetrator - summary

Repair of the vehicle from the perpetrator's civil liability insurance should be made with the use of original parts. The only exception to the above rule is when the use of new parts would lead to an increase in the value of the entire repaired vehicle. This is directly due to the fact that, in accordance with the Civil Code, in the event of damage to the property to the extent that it can be restored to its previous condition, the entity responsible for the damage (the insurance company) is obliged to reimburse the aggrieved party for any intentional and economically justified expenses incurred to restore the previous state of affairs. damaged, which includes the cost of new parts and other materials, provided that their use was necessary to repair the damaged item.