Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 27 May 2017.
Brian is involved in a motor vehicle accident. The other driver is at fault.
Brian has insurance with XYZ Insurance and he makes a claim relating to damage to his motor vehicle.
XYZ Insurance makes a claim against the other driver on Brian’s behalf.
Brian does not have access to a replacement rental vehicle under his insurance policy, so he hires a rental car during the time that his motor vehicle is being repaired and pays the expense himself.
XYZ Insurance settles the claim with the other driver early, by way of Consent Orders.
Brian discusses the matter with his solicitor. He is advised that although his policy did not cover him for a replacement rental vehicle, he was entitled to include the rental cost in the claim against the other driver. This “demurrage” claim can include the cost of a rental vehicle for both business and personal use.
Brian is advised that he is able to make a further claim against the other driver.
Unfortunately, now that the claim has been settled, if a further claim were to be made it is possible for the other driver to argue that there has been a splitting of the actions and that any action taken by Brian should be struck out.
The claim that Brian has for the rental vehicle is $1,600 but given the legal costs involved and the risk of his claim being struck out, he decides against commencing proceedings.
Brian could have avoided the problem by informing XYZ Insurance of the expense of his rental car at an early date so it could have been included in their claim against the other driver.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
