The driver can seize the insurer of the person responsible for the accident without declaring anything to his own insurance

Lhen car insurers feel that their customers have declared too many claims, they write them off, even if the damage was caused by third parties (theft, rear-end stamping, etc.). If France Assureurs affirms “to have no numbers”, several hundreds of thousands of contracts would be, according to 60 million consumers, terminated each year due to “claims”. Drivers must then find a new company and pay higher premiums, because their details have been registered on the file of the Association for the management of information on risk in insurance, which professionals consult.

To avoid this risk, they have a parade: in the event of an accident for which they are not responsible but for which the third party is identified, they can declare nothing to their insurer, and take “direct action” with that of the party opponent. The right to direct action was created by the case law of the Court of Cassation from June 14, 1926, and transposed by a law of 2007 in the insurance code, article L. 124-3 of which states: The injured third party has a right of direct action against the insurer guaranteeing the civil liability of the responsible person. »

One article instead of the other…

In May 2018, X decides to use this right when his car, parked in a parking lot, is hit by that of Mme Y. On the strength of an amicable report, she asks an independent expert to assess the cost of the necessary repairs. She sends her estimate (2,000 euros) to ACM Iard, insurer of Mme Y, so that he compensates her. This one doesn’t answer.

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Mme X summons him to the district court of Haguenau (Bas-Rhin) thanks to legal aid. ACM then accuses him of having “short-circuited the usual claims settlement process, and to have contacted an expert ” private “, whose report would not be contradictory “.

The Crédit Mutuel subsidiary ensures that article L. 113-2 of the insurance code” obliged him to report the loss to his insurer. This was validated by the court on May 16, 2019. However, the article invoked concerns the period within which the insured, if he wishes to declare a claim, can do so.

Mme X is appealing in cassation, thanks, again, to legal aid. His lawyer, Mr.e Denis Carbonnier, recalls that “the admissibility of the direct action is not subject to the prior declaration of the claim, by the victim, with his own insurer”. He explains that the court applied an article (L. 113-2) in place of another (L. 124-3).

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