Is insurance claim repudiation the answer to “drunk” driving?

Howard Dembovsky writes…

It has become common for insurance companies to include clauses in their policies where it is held that if a person drives under the influence of alcohol or drugs having a narcotic effect, their claim will be repudiated in the event of a claim. It has also become increasingly more common of late for them to repudiate claims citing the involvement of alcohol in crashes.

When I first heard that this was the case, I thought “good – at least someone is doing something and there will be a consequence which befalls those who drink and drive”. After all, the current state of affairs insofar as it relates to the prosecution of driving under the influence of alcohol is shambolic and both, I personally and JPSA have a long and vociferous history in trying to actively address this problem.

The current conviction rate in our criminal courts is around 6% nationally and those convictions typically take ages to achieve. Even where convictions are gained, sometimes the sentences handed down can appear to represent little more than a slap on the wrist. And those who drive under the influence of drugs are rarely screened for drugs, let alone prosecuted.

There are however very good reasons why the conviction rate is and remains low and it is my assertion that the root cause of this phenomenon should be urgently addressed since part of the reason why people drive under the influence of alcohol is the fact that they stand an extremely low chance of being convicted.

The two primary problems with convicting those who are accused of driving under the influence of alcohol are that procedure is often not properly followed by authorities and when it is, the entire process falls to pieces because State laboratories do not furnish blood alcohol test results timeously.

I am led to believe that the latter is set to be partially addressed shortly, when evidential breath testing is reintroduced after it was halted in 2011 when it was found that, amongst other things, authorities and suppliers had not provided sufficient training to operators, had failed to properly calibrate equipment and had failed to operate that equipment in accordance with the manufacturer’s specifications.

Evidential breath alcohol testing is widely utilised elsewhere in the world and results from such equipment are so reliable that courts are put in a position of knowing that when they do convict people, they do so on a scientifically sound basis, comfortable in knowing that they will not wrongfully convict an innocent person.

South African road traffic law has several provisions and safeguards built into it in order to ensure that no person is wrongfully convicted of driving under the influence of alcohol, and this should be applauded since conviction under this offence is a very serious matter indeed.

The Dräger Alcotest® 7110 evidential breath tester which is compliant with the SANS 1783 specification and which may be used in prosecution of driving under the influence of alcohol.

The Dräger Alcotest® 7110 evidential breath tester which is compliant with the SANS 1783 specification and which may be used in prosecution of driving under the influence of alcohol.

Amongst these safeguards are scientifically provable levels of alcohol below which a person may not be regarded as being under the influence of alcohol, only allowing accredited laboratories to test blood samples and stringent quality standards which are applicable to evidential breath alcohol testing equipment.

The standards for breath alcohol testing equipment are prescribed in “SANS 1793: Evidential breath testers” and in terms of the National Road Traffic Act and Regulations, and no other breath testing equipment is authorised for use. Currently, only a few models of evidential breath testing equipment meet these standards and one of those is the Dräger Alcotest® 7110 Evidential depicted here.

It is important to note that Dräger is a company name and not a particular piece of equipment as people including but not limited to the Minister of Transport have repeatedly confused it to be

This is important to note because Dräger manufactures a wide array of electronic equipment and its handheld breath alcohol screening devices, like all other handheld breath alcohol screening devices which are typically referred to as “breathalysers” are not compliant with SANS 1793 and therefore may not be used to convict anyone.

The Dräger Alcotest® 6810 handheld breath alcohol screening device which, like all handheld "breathalysers" is not compliant with the SANS 1783 specification.

The Dräger Alcotest® 6810 handheld breath alcohol screening device which, like all handheld “breathalysers” is not compliant with the SANS 1783 specification.

Handheld breath alcohol screening devices such as the one depicted here are designed to act merely as an indication to a law enforcement official as to whether alcohol use should be investigated properly.

However, in spite of the clearly prescribed procedures and standards which exist in law it would appear that insurance companies regard these as an unnecessary inconvenience and have therefore made up their own rules, which better suit them and their financial interests, to deal with the problem.

It is my view that this is unlawful on so many levels that it’s simply not funny. In fact, there is nothing “funny” about this at all.

Earlier this year, the Ombudsman for Short-Term Insurance put out a media release wherein it actively went about justifying the practice of repudiation of insurance claims where alcohol use is suspected, and wherein it was correctly stated that criminal law and civil law have different requirements insofar as the burden of proof goes.

The release says: “In criminal cases, in order to meet a charge of drunken driving or driving under the influence, the State is required to demonstrate beyond reasonable doubt that a driver was indeed driving in such a state. In civil cases, however, such as claims under an insurance policy, the insurer need only show that the insured was, on a balance of probabilities, driving under the influence.”

Now whilst I have to concede that the rules surrounding evidence in civil law are incredibly loose and do indeed allow for a balance of probabilities, I do not for one second concede that this should be the case. In fact, it is my view that this peculiar phenomenon represents a huge miscarriage of justice as well as a violation of the Constitution and should be urgently reviewed and indeed, abolished.

The consequences of incurring a criminal record are dire and it is for this precise reason that criminal law requires that the State prove its case beyond a reasonable doubt. Note that I say “beyond a reasonable doubt” and not “beyond all doubt”. There is a huge difference between the two and our criminal law does not require proof beyond all doubt.

Criminal law still allows for two versions to be weighed up and for the Court to accept the version which is most “reasonably possibly true”, as everyone, including but not limited to the Ombudsman for Short-Term Insurance was exposed to in the much publicised Oscar Pistorius trial.

As much as incurring a criminal record has dire consequences, so too does financial loss and indeed in some cases, ruin. What amazes me is that the Ombudsman for Short-Term insurance acknowledges this fact in its media release yet chooses to allow and support insurance companies to impose it on people, based on incredibly loose standards of evidence. This, in my view, calls the credibility of the Ombudsman into serious question.

I could, and do argue that on “a balance of probabilities” insurance assessors whose income is dependent on how much money they can save the insurance companies they work for or contract to have a very real motivation to do just that and may engage in questionable conduct in order to boost their own incomes.

Similarly, insurance companies who repudiate claims naturally boost their own profits by not having to pay claims for which they have received premiums. Money is and always will be a very powerful motivator indeed and anyone who wishes to claim that corruption is not commonplace in South Africa is on a hiding to nowhere.

A specific example of this comes from a recent repudiation I was asked to consult on where the insurer repudiated the claim on the basis that it held that the driver of the vehicle in question was driving under the influence of alcohol. It did so despite the fact that the other driver admitted in her own version that she had failed to stop at a “stop street”, thus causing the collision.

The most glaringly obvious problem with this matter was the accident report which was filed by the Metro Policeman who attended the scene. On that accident report, next to the section “alcohol use suspected” there was a recordal of “0.00” which was crossed out without initialling, and in a clearly different pen and handwriting, a new recordal of “0.50” was written. There also appeared a third notation of “0.” with nothing else written after the point and this was not crossed out.

The driver accused of being suspected of driving under the influence of alcohol was not charged with operating a motor vehicle while a sample of breath which was not below 0,24mg/1000ml (which would be 0,10mg/1000ml if she was a professional driver). No blood samples were taken. She was not subjected to an evidential breath test. Absolutely nothing.

The most obvious question which must be asked is “who altered the accident report and when and why did they do it”?

Is it not reasonable to presume that on “a balance of probabilities” civil law is so fond of that the person who altered this report was encouraged and/or bribed to do so by the insurance assessor, insurance company or any other person with a material interest in creating the impression that the driver was under the influence of alcohol? I would suggest that this is an entirely reasonable and plausible presumption but in criminal law, I would have to prove my allegation.

In this particular case, I would wager and therefore submit that had a blood sample have been taken and/or an evidential breath test been conducted, the driver would have been exonerated, but the insurance company not only repudiated the claim, but further went on to stick to its repudiation when a dispute was lodged.

It also failed to furnish any of the evidence which was requested in the dispute letter, responding that it would only do so “if the matter proceeded” and made the preposterous statement that “Please note that the above mentioned reason(s) for rejection may not necessarily be exhaustive and [insurance company name] strictly reserve its rights to alter these reasons at any time”.

This is a very serious violation of the Promotion of Administrative Justice Act (PAJA) not to mention that it would not be allowed in criminal law, but it would appear that the insurance company concerned is not bothered about that; most probably because it feels that it has the upper hand and can financially frustrate the insured into not pursuing litigation against it.

This matter will now go before the Ombudsman for Short-Term Insurance and it will be interesting to see what comes of that. I am however prepared to say that if the Ombudsman upholds this repudiation, it will go before a properly constituted Court, which is not reliant on funding by the insurance industry for its existence, and which is where I would have preferred to see it go from the outset.

Now that I have made out a case for why I feel that insurance companies should not be allowed to act in this manner, let’s talk about what it could do to lawfully make a difference.

In her address at the launch of the National Road Safety Strategy in March 2016, the Minister of Transport, Dipuo Peters said that her department was working with the Department of Health to allocate budget for more staff in State laboratories to clear the backlog and reduce the massive delays in the processing of blood alcohol test results.

Now while there is no delay associated with evidential breath testing, it would be beneficial to have blood samples processed without delay. Private accredited laboratories can provide these results inside 24 hours, so why can’t State labs? After all, these tests are conducted by machines which test scores of samples at once and only need one qualified professional to operate them.

Sometimes it is necessary to draw blood samples – for example where a person is injured and a breath sample would not be practical. But there is no law in South Africa which prescribes that all drivers involved in collisions must be tested for alcohol (and drugs) and there really should be.

Both, South Africans Against Drunk Driving (SADD) and Justice Project South Africa (JPSA) have been actively lobbying for mandatory testing of all drivers involved in collisions for ages now. Neither of these two organisations receives nor have they ever received a red cent from any short-term insurance company.

My question therefore is why don’t insurance companies get actively involved, invest in initiatives which could make a difference in road safety and lobby for mandatory testing? After all, the investment they would need to make would pale in comparison money they could save from lawfully and ethically repudiating claims.

Well, I would suggest that there is a very good reason why they are acting this manner and that reason is “why should they when they can get away with their current practices and thus ensure their own profitability without making any investment”?

I therefore suggest that for as long as short-term motor insurers are allowed the latitude (and backing of their Ombudsman) to employ the ridiculous notion of “a balance of probabilities” in repudiating claims they will continue to do so and there is absolutely no motivation for them to actively contribute to tackling the very real scourge of intoxicated driving in the wider interest of road safety and the broader South African public. They are therefore, in my view, part of the problem and not part of the solution, and that is both, sad and shameful.