car theft claim refused - theft by deception - one call insurance / commercial legal

[997090]

hello guys

 

I have recently had a very bad experience whilst trying to sell a car

 

I would be grateful for some advice

 

a few months ago an immediate family member wanted to sell her vehicle. vehicle was advertised on autotrader.

To cut a long story short, the potential buyer, pushed me, grabbed the keys, and drove off in my vehicle. and the person who dropped him off drove off behind him.

 

as usual, 3 months later, insurance company have come back stating the claim has been rejected on 2 grounds

1. I am not a named driver

2. theft by deception

 

so now my family member, is 18k worse off, with a substantial amount of finance owing.

 

So the main problem here is

I was the one who was showing the car to the buyer, on instruction of my family member (the car owner)

but I am not a named driver on the policy

 

I moved the car from my front drive about 100metres away, so they could look at the car with no obstructions.

However I was not driving the car at the time of theft.

It was parked and locked.

 

The thief then looks around the car, grabs the key, pushes me, and gets in the car and drives off.

 

closely followed by his accomplice.

 

the second problem is theft by deception. In my opinion this was a physical grab and drive off, rather than deception.

 

The claim has been rejected. I have had several sleepless nights over this.

The process has been ongoing, the story stated above was known from day one, yet it took 3 months for the insurance company to reject the claim.

 

there departments are clueless as to what is going on, they asked for all the total loss documents, we sent them in, recorded delivery, it was signed for, yet they have lost it, including the spare key.

 

We never got any official correspondence, regarding the claim rejection, we had to phone them up for them to tell us.

 

we made a complaint through there complaints department to which they said there decision was final.

 

I am unsure of where to go to next. I am totally confused and stressed, and some advice will be appreciated.

 

They have pointed me the direction of the financial ombudsman, but is there any point if theres so many things stacked against me?

[dx100uk]

firstly yo have ofcourse reported this to the police

 

 

and secondly the finance company?

 

 

its their problem not your

 

 

if the car is named on the finance its their not yours.

 

 

dx

[997090]

thanks for your reply

 

yes was immediately reported to police

 

mercedes finance are the ones provided finance, but i am not to sure where we stand with that.

as we were still making our monthly payments after the theft, but now the lease term has come to an end, so they are requesting the full amount to be repaid.

[dx100uk]

they need to know ASAP

its their car let them sort it out with the insurance company.

 

 

dx

[997090]

they need to know ASAP

its their car let them sort it out with the insurance company.

 

 

dx

 

The finance company were informed straight away. But I assumed we are liable to pay till insurance is sorted.

[unclebulgaria67]

The finance company were informed straight away. But I assumed we are liable to pay till insurance is sorted.

 

There is not going to be a quick decision by the FOS. My advice is to obtain formal legal advice from a Solicitor that handles disputes with Insurance companies. The Law Society will have details of Solicitors who specialise.

 

The argument of Insurers is that no one covered by the policy was in control of the car and effectively a third party (you) were meeting with people to sell the car, when you could not legally excercise any control over the car. What if the person had wanted a test drive ? How would this have worked, when you were not covered by the Insurance, so could not have driven it.

 

Being that Mercedes finance has an interest in the car, Solicitors may see if they can get them involved. They probably won't be interested and will just want the loan repaid.

 

Speak to a Solicitor first and decide what is the best route to take. The FOS may just see it as a straightforward theft, but I think I would want to get a legal opinion on the issue of theft by deception and to be able to present a case in the best possible way. The Insurers are going to have Solicitors opinion backing their decision and you need to be able to counter it.

[BankFodder]

I don't see how it can be theft by deception if the keys were forcibly taken from you and in any event you are not deceived into parting with the vehicle.

 

In whose name was the insurance? I find it difficult to imagine that a finance company would not insist that insurance be taken out by the regular keeper/driver of the car and that they be responsible for the general condition of it.

 

Who paid for the insurance? In whose name was the policy?

 

I don't think at this point that it is necessary to start thinking about solicitors.

 

The assertion by the insurance company that you are not a named driver and therefore there is a basis for avoiding the contract is a specious argument.

 

The test for avoiding insurance contracts after the insured peril has occurred, is whether the factor upon which the insurance company are relying to deny loss materially affected the risk in some way.

 

It seems clear to me that whether or not you are the named driver, has nothing to do with it.

 

You can read about this in ICOBS and in fact I would say that the insurance company's excuse exactly puts them in breach of their statutory duty under ICOBS.

 

As to theft by deception, what has that got to do with it? Please can you tell us what it says about theft in the policy? I think that you should write to the insurance company and ask them to tell you precisely why they consider that this is theft by deception and in what way where you or the owner of the car misled.

 

Also, the insurance company's failure to communicate with you is also a breach of ICOBS and also a breach of the insurance contract.

 

I would write the company a detailed letter confirming all of the circumstances, referring to the police report, pointing out to them that trying to say that you're not a named driver is disingenuous and in breach of ICOBS because whether or not you were a named driver has not affected the risk in any way.

 

I would also ask them in what way they consider that you or anybody else was deceived into parting with the car.

 

I would copy the finance company into everything.I would also send the insurance company an SAR immediately because I would want to see a complete report on their investigations and any other communications that they had internally about this claim.

[BankFodder]

The finance company were informed straight away. But I assumed we are liable to pay till insurance is sorted.

 

If your credit record matters to you in the short term then I would keep on paying because if you start withholding money, even though you put the matter legitimately in dispute, they will simply react in the usual bullying way and steamroll you and that will include blighting your credit file for up to 6 years.

 

Even credit files which are negatively marked in error become very difficult to clean up and become subject of a separate battle that maybe you don't want to take on at this time seeing you can have your hands full dealing with the problem of getting an insurance payout for this stolen car

[unclebulgaria67]

Because the complaint has gone to a final decision, if you are going to send a further letter it should go to the CEO of the Insurers.

 

I will post up a few FOS links for info

 

http://www.financial-ombudsman.org.uk/publications/ombudsman-news/31/ins-case-31.htm

http://www.financial-ombudsman.org.uk/publications/technical_notes/motor-insurance.html

[unclebulgaria67]

Someone I know had this happen to them. They showed someone a car they had for sale. Allowed them to sit in the drivers seat and to start the car up. The door was then locked and they drove away. The insurers did attempt to deny the claim due to deception, but they paid up, as there was nothing that could have been done to prevent the theft. The Insurers seemed to be saying that you should never allow a buyer any control over the car and certainly not allow them access to the keys.

 

The insurers in the case of this thread are basically saying that the policyholder or at least a named driver should have been present at the time. That the policyholder allowed a third party to have control of the car and it was stolen by a thief who pretended to be a buyer for the car. The deception being the thief pretending to be a potential buyer. This is not really correct, as the keys were snatched, so it should be seen as a straightforward theft.

[Mwynci]

This as per the above is not decption, theft by deception is using a dodgy cheque or similar.

 

I'm at a loss about the issue raised by the underwriter about who was trying to sell the car andwhat relevance does that have? family members sell stuff for other family members all the time. If you asked a garage to put it on their forecourt whilst still owning it, if the theft was under similar circumstances, the garage would not be held negligent, presumably then your insurer would pay.

 

As this has gone to final decision it is now for you to make the complaint to the FOS, not back to the insurer, there are no 2 stage complaints processes anymore, i think that was sorted out in the FSA's disp rules.

 

A solicitor in my opinion is a waste of money (you may not be able to claim back costs,it's doubtfull the FOS will award these). The FOS are very good at this type of issue, most will never get to the ombudsman stage.

 

A SAR's not a bad thing, but it gives the insurer 40 days to not look into the matter, it depends if you feel they think there is anything dodgy, or if they are just being awkward. The FOS have access to the full file anyway.

 

I can't tell you about ICOBS, I'm not sure a consumer can make a complaint under it, you can try, I'm not convinced it will hold any ground

[unclebulgaria67]

The advice re a Solicitor was a concern that this could drag on for a long time. It should be a straightforward decision by the FOS to uphold the complaint and tell the Insurers to pay up. But the Insurers may argue the toss and it could be waiting on the Ombudsmans desk for ages. Meanwhile they have a debt to service. The CEO of the Insurance company could overturn the final decision of the claims handlers if a letter was sent, but if this claim was rejected after the Insurers took legal advice, then this may not happen. From my experience, a claims manager looking at the complaint before issuing a final response would obtain either legal advice internally or a decision of a senior underwriting manager.. If they are allowing complaints to go to the FOS without having someone senior signing off the final decision, then standards have slipped. Insurers used to hate having complaints upheld against them

[997090]

thanks for your advice guys

I have been slightly motivated to pursue this

 

I was actually thinking if there was any point in taking it to the ombudsman. The insurance company are not even willing to listen to anything, so I just felt they feel they have a strong case.

 

We have attempted to contact the CEO a few times. After a few weeks, we got a vague email saying that there was nothign to discuss, as there decision was final.

 

1 - I was not insured to drive the vehicle

 

but as stated above - i was not driving the vehicle at time of theft. I merely moved it 100m from my drive so the buyers could have a better look at the vehicle. I moved the car, parked it up. locked the car, and he looked at the vehicle. From there he grabbed the keys and drove off. So the insurance company feel I was last in possession of the vehicle.

 

2 - theft by deception

 

this was a physical grab.

 

plus theyve lost the V5 and spare key we sent them. technically its our property

 

 

 

well at least if youve instilled me with some hope

[unclebulgaria67]

thanks for your advice guys

I have been slightly motivated to pursue this

 

I was actually thinking if there was any point in taking it to the ombudsman. The insurance company are not even willing to listen to anything, so I just felt they feel they have a strong case.

 

We have attempted to contact the CEO a few times. After a few weeks, we got a vague email saying that there was nothign to discuss, as there decision was final.

 

1 - I was not insured to drive the vehicle

 

but as stated above - i was not driving the vehicle at time of theft. I merely moved it 100m from my drive so the buyers could have a better look at the vehicle. I moved the car, parked it up. locked the car, and he looked at the vehicle. From there he grabbed the keys and drove off. So the insurance company feel I was last in possession of the vehicle.

 

2 - theft by deception

 

this was a physical grab.

 

plus theyve lost the V5 and spare key we sent them. technically its our property

 

 

 

well at least if youve instilled me with some hope

 

If you don't want to go down the legal route, then you should definitely try the FOS. You were the last to control the car, but this was a normal theft and not by deception.

 

If the FOS don't uphold the complaint, this would have implications for every family member selling on behalf of another.