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Old 13.08.2019, 21:38
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Liability insurance - Legal question

Hi all,


Some months ago I had a serious bike accident which was caused by a third person.


That person (a child) recognized his guilt and his RC (Liability) parents insurance agreed as well on their responsibility.


The question now comes that Liability insurance company says that as the accident was caused by a child, they say they are only partially responsible, at a percentage (60%) considering the reduced capacity of discernment.


I then understand that all damages caused by accident will be covered by this 60% and then the remaining 40% by me when I was not who caused the accident.


Do you know if the company is based in any legal criteria to support that sentence?


Thanks
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Old 13.08.2019, 22:07
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Re: Liability insurance - Legal question

From Beobachter, on the question of a child's liability:

https://www.beobachter.ch/geld/versi...aden-anrichten
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Old 13.08.2019, 22:25
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Re: Liability insurance - Legal question

Here's another site that sets it out.
https://www.baloise.ch/de/privatkund...ch-kinder.html

It seems to me that the pivotal questions are whether or not the child acted deliberately and whether or not he/she was old enough to understand what he/she was doing, and whether the parents were in any way negligent in not having prevented their child from doing the wrong thing. Even so, whatever I read seemed to be only about whether or not the Liability Insurance (Haftpflichtversicherung) of the parents would cover the damages.

If not, they are payable by the parents, or by the child themself (i.e. depending on the child's age, you can claim this from the child themselves, and the repayments to you kick in from any assets the child already owns, and then once the child begins to earn).

I couldn't find anything about such a 60% rule. Could you perhaps block out the personal details and post the text here?
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Old 13.08.2019, 22:31
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Re: Liability insurance - Legal question

What is the age of the child?

Different ages, different rules. And yes children are considered a weaker party who need extra protection from the law and the younger they are the more protection they have. if an 6 year old walks in front of your car it is your fault. Between 7 and 10 they are only to be held responsible if they knew what they were doing and what damages their actions could cause, so shared liability is an option here.
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Old 13.08.2019, 22:36
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Re: Liability insurance - Legal question

Related thread: Kids broke the car windshield
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Old 13.08.2019, 22:59
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Re: Liability insurance - Legal question

In the thread to which you link, aSwissInTheUS, you refer to a case in which a woman was standing on a slope amongst children sledding, and when a child crashed into her and she broke her shoulder, the child and its parents were not deemed liable. The reasoning was that the children were doing a normal thing and were sufficiently supervised (and perhaps also that she was doing something stupid).

But have you ever heard of a rule about a liability insurance covering the case (so there must be some liability assigned to the child or its parents) but then only 60%? On the basis of what law?

Or can an insurance company simply build a % limitation into its contract? And even if yes, it seems very odd to me that the victim should cover the other 40% (unless some blame is apportioned to the victim for his/her own behaviour*). It would seem more reasonable if either the parents or the child him/herself (if old enough) must cover the 40%.

*OP: is any % of the liability/blame/responsibility attributable to your error/fault?
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Old 13.08.2019, 23:24
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Re: Liability insurance - Legal question

Could be that the child is younger than 7, not liable by law and the 60% are based on goodwil only.

From the linked Beobachter article:
Quote:
It is important to know that the young person is only liable if he is at fault. He must therefore have caused the damage intentionally or "through unjustifiable negligence". The greater the degree of fault, the more likely it is that he will have to pay the full amount of the damage. The courts usually assume a low level of fault up to the age of 14. In this case, young people do not have to pay full damages.

Here is an example: Three boys between the ages of 11 and 15 played with a kite attached to a string on the school grounds. The kite crashed, the string came to rest over several roads. A man riding his Solex fell because of the string.

According to the court, the boys' ability to judge was evident. They were of average intelligence and familiar with urban traffic. They should therefore have known that a cord lying across the road could be dangerous for other road users. Although they had to expect an accident, they had done nothing to avert the danger. The court therefore found that their conduct was culpable.

However, in view of their age, the fault was considered relatively small. In addition, they had not deliberately brought about the dangerous condition, the danger had arisen as a result of a mishap in a game that was permitted per se. The liability for damages was reduced by half.
Translated with www.DeepL.com/Translator
IMHO of OP thinks he has any further claims he must claim it from the child directly.
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Old 14.08.2019, 17:03
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Re: Liability insurance - Legal question

Thanks a lot for your inputs!


About the links I could read, I understand that depending on the age responsibility will go to the child or the parents, but anyhow to a 100% to the third party who caused the accident.


In my particular case, parents have a liability insurance for them and the family, so financially responsible about the damages would be Insurance company. I believe that simply insurance company wants to make their bill smaller as possible.


As resume about the accident, the kid left a ball rolling out inside the road I was biking. It was not possible to avoid a collision with the ball and so the fall happened.


As consequence of this, I had several broken bones and I required a surgery for a fracture. There were several personal items damaged.


On top of that, it is still not clear the physical consequences this will bring to me, as I still require physio sessions after almost one year of the accident. I am not fully recovered yet and I guess that I will never get 100%....
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Old 14.08.2019, 17:18
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Re: Liability insurance - Legal question

Sounds like you may have been going a bit fast in a residential area.....
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Old 14.08.2019, 17:36
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Re: Liability insurance - Legal question

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In my particular case, parents have a liability insurance for them and the family, so financially responsible about the damages would be Insurance company. I believe that simply insurance company wants to make their bill smaller as possible.
No. Why? Responsible for the damages is the person which caused the damages. If the person has a liability insurance, the insurance might cover part of it. However, in case of mandatory vehicle liability insurance it is actually the insurance which must pay.
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Old 14.08.2019, 17:40
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Re: Liability insurance - Legal question

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Sounds like you may have been going a bit fast in a residential area.....

It was not a residential area, and about speed not sure as I do not have speedometer, but I doubt I would go faster than 30 km/h
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Old 14.08.2019, 18:18
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Re: Liability insurance - Legal question

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the kid left a ball rolling out inside the road I was biking. It was not possible to avoid a collision with the ball and so the fall happened.
Thus you need to claim on your accident insurance.

Tom
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Old 14.08.2019, 18:47
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Re: Liability insurance - Legal question

It's the same the world over - insurance companies will, as a matter of course, try to minimise their payout on all claims.

Tell the insurance that you simply don't accept their offer and you want paying in full without any further delay...
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Old 14.08.2019, 18:52
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Re: Liability insurance - Legal question

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No. Why? Responsible for the damages is the person which caused the damages. If the person has a liability insurance, the insurance might cover part of it. However, in case of mandatory vehicle liability insurance it is actually the insurance which must pay.
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Thus you need to claim on your accident insurance.
Tom
I'm starting to find this all a bit confusing.
  • liability insurance... of the parents
  • mandatory vehicle liability insurance... of OP?
  • accident insurance... of OP's employer?
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Old 14.08.2019, 18:52
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Re: Liability insurance - Legal question

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Tell the insurance that you simply don't accept their offer and you want paying in full without any further delay...
Pay what?

Accident medical bills are paid by accident insurance, regardless of who causes it.

The only thing that personal liability insurance will pay for is material damage, i.e. to the bike.

Tom
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Old 14.08.2019, 18:55
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Re: Liability insurance - Legal question

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[*]accident insurance... of OP's employer?
Medical costs, yes.

Tom
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Old 14.08.2019, 18:56
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Re: Liability insurance - Legal question

If the damage to the bike is 200, and the immediate medical treatment for OP 120, and subsequent treatment during the next year 300, then the total accident cost is 620.

It seems to me that the whole bill should be covered by the parents.
If their liability insurance is offering 60%, then that is 60% of 620. That doesn't actually have anything to do withe OP, since that's a contract between those parents and their liabiltiy insurance company.
Is the other 40% not the duty of the parents?
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Old 14.08.2019, 19:51
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Re: Liability insurance - Legal question

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It's the same the world over - insurance companies will, as a matter of course, try to minimise their payout on all claims.

Tell the insurance that you simply don't accept their offer and you want paying in full without any further delay...
Likely answer: Go to court if you don't like it.
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Old 14.08.2019, 20:02
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Re: Liability insurance - Legal question

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If the damage to the bike is 200, and the immediate medical treatment for OP 120, and subsequent treatment during the next year 300, then the total accident cost is 620.

It seems to me that the whole bill should be covered by the parents.
Not the way it works here.

Only the material damage is covered by the parents insurance, medical is covered by the accident insurance of the patient.

If any medical costs are to be recovered from the parents, it's up to the accident insurance to do so, not the OP.

Tom
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Old 14.08.2019, 20:26
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Re: Liability insurance - Legal question

Okay, thanks, that makes more sense to me now.

So OP gets - to use my figures from above - 120 plus 300 covered by his/her accident insurance. If the accident insurance company doesn't like that, they can go to the parents. The parents will then refer the accident victim's accident insurance to their liability insurance, who may or may not refund some (say, 60%). If the victim's accident insurance isn't satisfied with that, then they can claim the other 40% from the parents or, if the child is old enough, from the child him/herself.

Have I got that right up to there?

But what about the 200 damages to the bike? If OP claims this from his/her own insurance, then won't that negatively influence the relationship with them (perhaps lose a no-claim bonus)? Are the parents and the child completely off the hook with regard to the 200 damages to the bike?
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