Insurance of civil liability of vehicle owners
Of all the civil cases submitted for the generalization, the majority are cases of disputes arising from GPO insurance contracts.
In turn, most of them are related to challenging the insurance company's assessment report.
In accordance with Article 833 of the Civil Code, the assessment of insured property and damage caused by the insurer is an integral part of insurance and does not require additional licensing.
The amount of damage caused as a result of the occurrence of an insured event is determined by the insurer at the request of the policyholder or his representative.
If necessary, an assessment of the amount of damage caused is carried out by an appraiser (independent expert). In case of disagreement with the results of the assessment of the damage caused, the parties have the right to prove otherwise.
In case of compulsory insurance, the procedure and conditions for assessing the amount of damage caused as a result of the occurrence of an insured event may be established by legislative acts of the Republic of Kazakhstan.
By virtue of paragraph 2 of Article 2 of the Law of the Republic of Kazakhstan "On Assessment Activities", the specifics of determining the amount of damage caused to a vehicle are established by Law No. 446.
According to paragraph 3 of Article 22 of Law No. 446, the amount of damage caused to property is determined using licensed specialized software by the insurer or an appraiser engaged by it on the basis of a service agreement.
The requirements for specialized software and the procedure for determining the amount of damage caused to property are established by a regulatory legal act of the authorized body.
Such a regulatory legal act is Resolution No. 14 of the Board of the National Bank of the Republic of Kazakhstan dated January 28, 2016 (hereinafter referred to as Resolution No. 14), which approved the Requirements for Specialized Software (hereinafter referred to as Requirements) and Rules.
Paragraph 3-1 of Article 22 of the Law stipulates that an appraiser, whose services are used by the policyholder or beneficiary due to the failure of the insurer to fulfill its obligation to conduct an assessment, must also be guided by the Requirements and Rules.
By virtue of paragraph 4 of the Rules, the procedure for determining the amount of damage caused to a vehicle provided for in paragraphs 2 and 3 of the Rules also applies to an appraiser engaged by the insurer on the basis of a service agreement.
It follows from the above provisions in their systemic connection that the obligation to be guided in determining the amount of damage caused to a vehicle solely by the regulatory legal act of the authorized body (Rules) applies to both the insurer and the appraiser.
In practice, there was a question about the possibility of challenging the results of calculating the amount of damage. Some insurance companies, referring to Article 833 of the Civil Code, believed that the results of the assessment conducted by the insurer were not subject to dispute. Some courts have expressed the same opinion.
Thus, the judges of the district court No. 2 of the Almaly district of Almaty refused to accept the claims of Z., A., B. to JSC "IC "E" for invalidation of the results of the harm assessment, indicating that the claims to challenge the expert's opinion (report) are not subject to consideration as an independent subject of the claim. The appellate instance correctly overturned the judges' rulings, referring to paragraph 18 of the Regulatory Decree.
By Resolution No. 101 of the Board of the Agency of the Republic of Kazakhstan for Regulation and Development of the Financial Market (hereinafter - the ARFR) dated November 23, 2022, Resolution No. 14 was amended, the Rules were set out in a new version. According to paragraph 5 of the new version of the Rules, the results of the calculation of the amount of damage by the victims (beneficiaries) or their representatives are challenged in accordance with the procedure provided for in article 29-1 of Law No. 446.
The relevant changes were made to paragraph 18 of the Regulatory Resolution. An analysis of the cases submitted for summary shows that different practices have developed in the regions when considering claims challenging the results of calculating the amount of damage determined by insurers.
As a rule, plaintiffs submit assessment reports prepared by another appraiser to substantiate their claims.
The courts, seeing the difference in the reports, appoint an expert examination of the case. However, this practice cannot be considered correct.
By virtue of Article 82 of the CPC, a judicial examination is appointed in cases where circumstances relevant to the case can be established as a result of an examination of its objects conducted by an expert based on special scientific knowledge.
As mentioned above, when determining the amount of damage caused to a vehicle, both the insurer and appraisers must strictly follow the Rules and Requirements.
Thus, according to the paragraph of the Rules, the calculation of the amount of damage caused to a vehicle (hereinafter referred to as the calculation of the amount of damage) is carried out by an insurer or an appraiser using licensed specialized software (hereinafter referred to as PDF) on the basis of an application for determining the amount of damage caused to property, containing information in accordance with Appendix 1 to the Rules.
Therefore, there is no need to appoint an expert examination, since the expert opinion on such cases is the same report on the amount of damage caused to the vehicle.
Moreover, the Requirements for specialized software have been developed in accordance with Article 22 of Law No. 446 and define the requirements for specialized software (hereinafter referred to as SPO) used by the insurer in determining the amount of damage caused to a vehicle (paragraph 1 of the Requirements).
According to paragraphs 2-4 of the Requirements, the Insurer uses the STR on the basis of a license agreement signed with the rightholder of the STR, which is not an affiliated person of the insurer.
The PDF makes a calculation (calculation) the cost of vehicle repair, according to the methodology included in the State Register of Forensic Research Methods of the Republic of Kazakhstan, and the decisions of the Insurance Ombudsman on the application of certain provisions of the methodology used, taking into account the specifics of compulsory GPO insurance for vehicle owners, posted on the Insurance Ombudsman's Internet resource.
The PDF uses up-to-date and reliable information from vehicle manufacturers and organizations authorized by the manufacturer at the time of calculating the labor intensity standards for calculating the cost of vehicle repairs and contains catalog numbers of parts and catalogues of spare parts for a specific brand (model, modification) of the vehicle, compiled by the manufacturer of the vehicle. By challenging the results of the damage calculation determined by the insurer, the plaintiff must prove that the insurance company's report does not comply with the Rules.
If necessary, the court may involve a specialist in the case (Article 77 of the CPC). For example, E. appealed to the Almaly district court No. 2 of Almaty to JSC IC "E" for invalidation of the damage report and recovery of the insurance payment, stating in justification that as a result of an accident caused by K., who insured the defendant's GPO, his car was damaged.
The insurance company paid 319,147 tenge, while according to the assessment of Independent Appraisal Company "R" LLP, the damage amounted to 564,327 tenge. In resolving this dispute, the court of first instance involved a specialist from L LLP in the case, who discovered errors in the insurer's report, in particular, found that the cost of replacement parts was incorrectly calculated.
Based on the results of the calculations, the specialist determined the amount of damage.
The court recovered the difference claimed by the plaintiff, however, the proceedings in the case regarding the invalidation of the damage report were unreasonably terminated.
Satisfying K.'s demands to JSC IC T to invalidate the calculation report and recover the amount of the insurance payment, the Taraz City Court independently determined that the insurance company's report did not comply with the Rules. The court analyzed in detail the reports of the insurance company on other cases (№3110-23-00-2/1517, № 3110 23-00-2/2214).
In resolving T.'s claim against JSC IC N for invalidation of the damage report, Uralsk City Court No. 2 involved a representative of the Office of Regional Representatives of the Russian Federation in Uralsk as a specialist, who gave an opinion on the compliance of the insurance company's report with the Rules.
The court found that the disputed damage report (calculation) was compiled using the SPO "PS" with the user license number PSC22139.
At the same time, the court reasonably did not accept as evidence the payment invoice from the service center of LLP "H", where the vehicle is in warranty service, since it is not a report on the amount of damage (calculation) and LLP "H" is not an evaluation organization.
The Court of Appeal agreed with these conclusions. In rejecting I.'s claim to JSC "IC "A" for invalidation of the damage report (calculation) and for recovery of damages, the courts of the Aktobe region correctly assumed that the plaintiff, without challenging the amount of damage within the time limits established by law, independently restored the vehicle, filed a claim after restoring the car, that is, in fact, I agreed with the established result of assessing the amount of damage, having received an insurance payment.
The act of work performed by T LLP submitted by the plaintiff was legitimately not accepted as evidence of the amount of damage, since the amount of damage caused to the vehicle is determined by the insurer in accordance with Resolution No. 14.
The damage is assessed taking into account the depreciation of the vehicle.
The specified LLP is not an appraisal organization, but is a commercial organization that sells cars and spare parts for them.
As a positive example, we should cite the decision of the judicial board for Civil Cases of the Kostanay Regional Court dated June 6, 2023 in the case of P.'s claim against JSC "IC "E" to recover the difference in insurance payments.
By changing the decision of the court of first instance, the board correctly indicated that the plaintiff, demanding an additional insurance payment in court, actually disputes the amount of damage determined by the insurance company, and therefore, the reports (calculations) of the insurance company and appraiser reports submitted by the plaintiff are subject to assessment.
At the same time, the board found that the insurance company and the appraiser, Independent Expertise IAG LLP, in violation of the Rules for calculating repair repairs, attributed the plaintiff's car to a small class, which led to an increase in the wear value from 60.8% to 75%, and, consequently, to an incorrect determination of the cost of repair. The Board concluded that since the report of Independent Assessment Center A LLP was compiled in accordance with the requirements of the Rules, it must be accepted by the court as evidence in determining the amount of damage to be reimbursed to the plaintiff.
Courts need to take into account that the Rules have been repeatedly amended. Thus, by Resolution No. 101 of the Board of the Russian Federation of November 23, 2022, the Rules were set out in a new version, and paragraph 10 read as follows:
"When calculating the amount of damage caused to a vehicle, the insurer applies the market value of the new part, excluding wear, if it is necessary to replace the part.
In this case, the beneficiary transfers ownership of the replacement part to the insurer." The analysis showed that the courts mostly applied this rule correctly (the resolution of the Kostanay Regional Court, the resolution of the East Kazakhstan Regional Court case).
By Resolution No. 69 of the Board of the Russian Federation of August 31, 2023, amendments were made to the Rules, in particular paragraph 10 is set out in the following wording:
When calculating the amount of damage caused to a vehicle if it is necessary to replace a part, the insurer applies the market value of the new part without taking into account wear in the following cases:
1) in respect of a vehicle owned by an individual, subject to the following conditions: the vehicle is not subject to mandatory technical inspection; the average annual mileage of the vehicle does not exceed 15 thousand kilometers; the replaced part of the vehicle has not been previously damaged or repaired;
2) in respect of a vehicle owned by a legal entity, subject to the following conditions: the vehicle is under warranty service.;
the average annual mileage of a vehicle does not exceed 20 thousand kilometers;
The vehicle part being replaced has not been previously damaged or repaired.
In this case, the beneficiary transfers ownership of the replacement part to the insurer at the insurer's request.
In rejecting M "K" LLP's claim against IC "E" JSC regarding the invalidation of reports, the Ust-Kamenogorsk City Court correctly motivated the decision by the fact that the mileage of the plaintiff's car at the time of the insured event was 216,958 km. In this regard, the car does not fall under the application of the market value of new parts without taking into account wear and tear in accordance with paragraph 10 of the Rules.
In practice, there is a question of determining the amount of damage caused to a vehicle undergoing warranty service at a dealership. The regions have different practices in resolving such disputes.
In support of the judicial acts on the satisfaction of the claim, the courts indicate that the plaintiff, under the terms of the warranty service, is obliged to repair only at the dealership, otherwise his warranty expires.
Such decisions were made in 2024 by the inter-district Court for Civil Cases of Astana.
Thus, in resolving S.'s claim against JSC IC X and B. for the recovery of the insured sum and compensation for damage, the court found that as a result of the accident caused by B., the plaintiff's car was damaged.
The insurance company made an insurance payment in the amount of 2,151,110 tenge, while the defect certificate issued by the official dealer established the cost of works and materials in the amount of 4,168,900 tenge.
Satisfying the claim based on the defect act, the court pointed out that in order to preserve the warranty on the car from the manufacturer's factory, it is necessary to carry out repair work only at the dealer.
It is impossible to agree with such conclusions of the court due to the following.
As mentioned above, according to paragraph 3 of Article 22 of Law No. 446, the amount of damage caused to property is determined using a licensed STR by the insurer or an appraiser engaged by him on the basis of a service agreement.
The requirements for the ACT and the procedure for determining the amount of damage caused to property are established by a regulatory legal act of the authorized body, such an act is Resolution No. 14. The PDF makes a calculation (calculation) the cost of vehicle repair, according to the methodology included in the State Register of Forensic Research Methods of the Republic of Kazakhstan.
That is, the amount of damage is determined using the same methods used for forensic automotive research, which makes it possible to establish a reliable market value for the restoration of a vehicle. So in accordance with subparagraph 1) paragraph 4.3.1. Methods for determining the cost of vehicles in the framework of the forensic automotive research of the RSE "Center for Forensic Expertise of the Ministry of Justice of the Republic of Kazakhstan" Astana 2018 for vehicles for up to 7 years of operation, it is recommended to accept the cost of original spare parts and components according to an official dealer or based on data from a specialized store.
Also, from Table 4.2 of Appendix No. 4.1 of the Methodology, the cost of one standard hour for all classes of vehicles undergoing warranty maintenance is assumed based on the value of the standard hour of the repair company of the authorized dealer.
Thus, the norms of the current legislation provide for special conditions for determining the damage caused to vehicles undergoing warranty service.
Consequently, the terms of warranty service agreed between dealerships and vehicle buyers do not create obligations for insurance companies, which must strictly follow the legal act of the authorized body in their activities.
When resolving such disputes, the courts should check the compliance of insurance companies with the specified legal act.
So resolving the claim of O. to JSC "IC "A" and K. on invalidation of the calculation, recovery of the amount of restoration repairs and loss of market value, the Ekibastuz City Court of Pavlodar region, based on the expert's opinion, gave a correct assessment to the insurance company's report, in particular, it was taken into account that the difference between restoration repairs by a certain insurance company and a specialist was formed due to improper application of the standard hour of repair and restoration work, the insurance company she was guided by the rules for determining harm without confirming that the vehicle is under warranty in the amount of 6,738. 60 tenge, and the specialist used the standard hours of repair and restoration work of the warranty vehicle in the amount of 10,000 tenge. As a result, the difference between the calculations of the specialist and the insurance company amounted to only 79,013 tenge (690,974-611,961).
Satisfying the plaintiff's claims partially in the amount of KZT 690,974, the court reasonably did not take as a basis the defective act of Kamkor Auto LLP presented by the plaintiff, where the plaintiff's car is under warranty and according to which the cost of repairing the car amounted to KZT 1,425,000. B. filed a lawsuit against JSC IC F for recovery In substantiation, he indicated that the defendant had unreasonably underestimated the amount of the insurance payment, which was insufficient for the complete restoration of the car, and asked to recover 544,815 tenge from the defendant.
In the case, it was established that the insurance company estimated the damage at 737,985 tenge, and paid the specified amount to the plaintiff. The plaintiff's car is under warranty service from an authorized dealer of "H" LLP.
In support of his claims, the plaintiff submitted an invoice for the dealer's payment, according to which the cost of spare parts to be replaced, materials and repairs is 1,282,800 tenge.
Satisfying the plaintiff's claims, the District court No. 2 of Almaly district of Almaty motivated the decision by the fact that the amount of compensation for the defect act is subject to recovery, since a different approach would violate the plaintiff's right to service at the service center.
The appellate instance did not agree with such conclusions, overturned the court's decision in the satisfied part and denied the claim, correctly stating in justification that the plaintiff had not appealed the insurance company's report on the amount of damage, received the amount determined by the insurance company, the claim did not provide arguments for invalidating this report, evidence confirming the fact of admission of the insurance company was not provided. There are no irregularities in the calculation .
By virtue of paragraph 9 of the Rules, a vehicle is considered destroyed if its restoration is technically impossible or economically impractical.
Restoration of a vehicle is considered economically impractical if the expected costs of restoring the vehicle exceed 80 (eighty) percent of its market value as of the date of the damage report.
In the event of loss of a vehicle, the insurer shall make an insurance payment in the amount of the market value of the damaged vehicle as of the date of the damage report, while the victim (beneficiary) or their representative transfers the remains of the damaged vehicle to the ownership of the insurer or makes an insurance payment minus the cost of parts, assemblies, aggregates, and materials suitable for sale.
By a resolution of the judicial board of the Kostanay Regional Court dated January 18, 2023, the decision of the Kostanay City Court dated October 28, 2022 on Ye.'s claim against JSC "IC "V" for the recovery of insurance benefits was amended.
Reducing the amount of the collected insurance payment, the judicial board pointed out that, guided by paragraph 6 of the Rules (as amended at that time) and taking into account that the plaintiff stated his unwillingness to transfer the remains of the car to the defendant, the court should have deducted the cost of disposal residues.
It follows from the literal content of paragraph 9 of the Rules that the insurer makes an insurance payment in the amount of the market value of the vehicle if the vehicle was destroyed as a result of an accident.
However, the market value of the car may exceed the limit of liability of the insurer in 600 MCI, in any case, the specified liability limit is provided for the insurance company.
In this case, by virtue of Article 924 of the Civil Code and Article 24 of Law No. 446, the difference between the insured amount and the actual amount of damage is compensated by the policyholder.
It was not possible to analyze the practice of applying paragraph 9 of the Rules when the market value of a destroyed car exceeds 600 MCI due to the lack of cases in which the courts would apply this rule. Therefore, this issue still needs to be studied in practice.
In its analysis, the Court of the West Kazakhstan region draws attention to the fact that currently, taking into account inflation, higher prices for cars and spare parts, the amount of 2,215,200 tenge (600 MCI) does not fully cover the amounts spent by the victim on vehicle repairs.
He proposes to initiate amendments to Law No. 446 and increase the maximum amount of liability of the insurer to 800 MCI.
This proposal should be accepted, as it will, among other things, help reduce the number of disputes between victims and insurance companies and those responsible for accidents.
Insurance is carried out on the basis of an insurance contract.
Under the insurance contract, one party (the policyholder) undertakes to pay the insurance premium, and the other party (the insurer) undertakes, upon the occurrence of an insured event, to make an insurance payment to the policyholder or another person in whose favor the contract was concluded (the beneficiary), within the amount specified in the contract (the insured amount). The forms of insurance are: by
1) according to the degree of commitment - voluntary and compulsory;
2) according to the object of insurance - personal and property;
3) the grounds for making insurance payments are accumulative and non-accumulative.
An analysis of the cases submitted for summary showed that the following types of disputes were considered by the courts of the republic:
- challenging the results of the calculation of the amount of damage caused to the vehicle;
- on the recovery of insurance payments;
- on appealing the insurer's refusal to make an insurance payment;
- recovery of insurance payment from the policyholder by way of recourse (reverse claim);
- recovery of the paid insurance sum from the harm-doer by way of subrogation;
- on the recognition of the insurance contract as invalid;
- on the collection of penalties for late payment of insurance;
- on the collection of insurance premiums, etc.
Jurisdiction
Cases of this category are considered according to the general rules of jurisdiction established by Chapter 3 of the CPC – at the location of the defendant.
A claim against an insurance company may be filed at the location of the branch or representative office that concluded the insurance contract.
At the same time, there are cases of unjustified return of a claim due to lack of jurisdiction.
Thus, by the definition of the Council of Economic Cooperation of the East Kazakhstan region dated May 17, 2023, the claim of LLP "Z" to JSC "Insurance Company "E" (hereinafter referred to as JSC "IC "E") for the recovery of insurance payments was returned.
The reason for the refund was the lack of jurisdiction of this lawsuit by the Ministry of Economic Cooperation of East Kazakhstan Region, since the defendant is an insurance company located in Almaty.
However, as indicated above, by virtue of Part 3 of Article 30 of the CPC, a claim arising from the activities of a branch or representative office of a legal entity may also be filed at the location of the branch or representative office.
According to the claim and the documents attached to it, the plaintiff's location is the city of Ust-Kamenogorsk, the traffic accident (hereinafter referred to as the accident) occurred in the city of Ust-Kamenogorsk, and the insured event statement was accepted from the victim by the branch of JSC IC "E" located in the city of U.
This ruling has not been appealed and has entered into force.
In accordance with Part 11 of Article 30 of the CPC, a claim for recovery of an insurance payment under an insurance contract may be filed at the place of residence of the plaintiff or at the location of the defendant.
Paragraph 2 of the Nominative Resolution provides the following explanation: the concept of "place of residence" means that this provision refers to the plaintiff, an individual, therefore, plaintiffs, legal entities, file lawsuits in the general manner – at the location of the defendant.
The analysis showed that there was a misinterpretation of this rule. By the ruling of the Inter-district Court for Civil Cases of the city of Shymkent dated June 13, 2023, the claim of JSC IC N to D. for recovery of the amount by way of recourse was returned with reference to subparagraph 2) of part of Article 152 of the CPC (the defendant does not reside in Shymkent) and with reference to part 11 of Article 30 of the CPC.
It is recommended that the plaintiff, the insurance company, apply to the court at its location in Almaty. The court of appeal upheld the court's ruling, also stating that the plaintiff could apply to the court at his place of residence.
At the same time, the courts did not take into account that part 11 of Article 30 of the CPC gives the right to choose only to plaintiffs - individuals and only upon request for recovery of insurance payments. In this case, the plaintiff is a legal entity that claims otherwise against the policyholder.
By a ruling dated February 27, 2024, the case on the claim of JSC IC E against M. for debt collection to the military court of the Almaty garrison, the Balkhash District Court of the Almaty region did not take into account that the plaintiff's claims did not affect the interests of military service and were not directly related to military service. The ruling has not been appealed.
State duty
The rates of state duty in cases of this category are determined in accordance with Article 610 of the Tax Code.
In accordance with subparagraph 19) of Article 616 of the Tax Code, policyholders and insurers are exempt from paying state duty in courts for claims arising from compulsory insurance contracts.
Thus, the article deals only with compulsory insurance contracts, and only policyholders and insurers are exempt from paying state duty, while beneficiaries do not enjoy such benefits.
Therefore, if the beneficiary files a claim against the insurer for recovery of insurance payments under the compulsory insurance contract, he is obliged to pay the state fee in the amount provided for in Article 610 of the Tax Code (unless he is exempt from paying it for other reasons).
In this case, the distribution of court costs between the parties must be made according to the general rules provided for in Article 109 of the CPC.
That is, if the decision is made in favor of the beneficiary plaintiff, then the court costs, including the state fee paid by him, are to be recovered from the defendant, the insurance company.
Local courts have repeatedly proposed extending the benefits provided for in subparagraph 19) of Article 616 of the Tax Code to beneficiaries (victims).
Such a proposal was sent to Parliament by the Supreme Court based on the results of the generalization in 2017, but was not supported.
Limitation period
Claims for recovery of insurance payments are often referred to as claims for compensation for damage caused to life and health.
And according to subparagraph 3) of Article 187 of the Civil Code, the limitation period does not apply to claims for compensation for damage caused to the life or health of a citizen. At the same time, the legal relations of the parties (the beneficiary and the insurer) arise not from causing harm, but from the insurance contract.
The purpose of insurance is not to compensate for the damage caused, but to protect the property interests of the policyholder (insured, beneficiary), that is, insurance protection, acting on the insurance market in the form of goods (services).
Therefore, the insurance payment cannot act as compensation for damage, which is consistent with the provisions of article 2 of the Law "On Insurance Activities", by virtue of which insurance is a type of entrepreneurial activity.
Consequently, the general limitation period of three years applies to claims arising from insurance contracts. We would like to draw your attention to the following topical issue that occurs in judicial practice: from what point should the three-year limitation period be calculated for filing a claim against an insurance company.
In accordance with paragraph 4 of the Regulatory Resolution, this period is calculated from the moment when the beneficiary or the policyholder (insured) became aware of the violation of his rights – making a decision to refuse to make insurance payments or reduce its amount, and if no decision has been made – from the end of the period established by law or contract for insurance payments..
That is, until the insurance company has accepted the documents on the occurrence of the insured event, has not reviewed them and has not made a decision to refuse to pay compensation for the damage caused, the beneficiary cannot know that his rights will be violated.
In this case, the beginning for calculating the limitation period will be the day when the policyholder received a refusal or a decision to pay compensation, which is not enough to restore the damaged vehicle.
Zh. Born in 2001, she filed a lawsuit against two insurance companies to declare the decision to refuse insurance payments illegal and impose the obligation to make insurance payments.
She motivated her claims by the fact that, being underage, she was injured in an accident that occurred on July 23, 2018.On January 15, 2019, she was diagnosed with a disability. The liability of drivers responsible for accidents is insured by insurance companies.
She applied to insurance companies in February and March 2023 for an insurance payment. By the decision of the District Court No. 2 of the Almaly district of Almaty dated August 14, 2023, which was left unchanged by the decision of the Judicial Board for Civil Cases of the Almaty City Court dated October 30, 2023, the claim was dismissed due to the omission of the limitation period (more than three years have passed since the date of the insured event).
By the resolution of the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan dated May 22, 2024 (3gp/200), the judicial acts in the case were changed, a new decision was made to satisfy the claim in terms of claims against one of the insurance companies.
At the same time, the board was guided by paragraph 4 of the Regulatory Resolution, indicating that the plaintiff learned about the violation of his right to make a decision to refuse insurance payment in February and March 2023.
The change of persons in the obligation during subrogation in accordance with Article 181 of the Civil Code does not entail a change in the statute of limitations and the procedure for calculating it, therefore, the debtor may declare the omission of this period in the same way as if the old one had acted instead of the new creditor.
The limitation period for the insurer, when suing the causer of harm by way of subrogation, is calculated from the moment the insured event occurs, and not from the moment the insurance payment is made.
If there is a dispute related to the identification of the harm-causing entity, the limitation period is calculated from the date of entry into force of the judicial act that defines this entity.
Judicial acts of the courts of the Karaganda region serve as an example of the correct application of this norm.
On April 20, 2023, Insurance company "X" filed a lawsuit against S. to recover the amount by way of subrogation. The claims are motivated by the fact that a voluntary car insurance contract has been concluded between the plaintiff and P. On January 17, 2020, due to the fault of driver S., an accident was committed, as a result of which damage was caused to P.'s car in the amount of 2,149,095 tenge.
Insurance company "C", where civil liability was insured (hereinafter referred to as GPO) S., a payment in the amount of 1,837,800 tenge was made in favor of the plaintiff.
The remainder of the unpaid amount amounted to 304,795 tenge, which the plaintiff requested to recover from the defendant by way of subrogation.
By the decision of court No. 2 of the Alikhan Bokeikhan district of the city of Karaganda dated June 26, 2023, which was left unchanged by the decision of the judicial board of the Karaganda Regional Court dated September 18, 2023, the claim was denied.
The courts motivated the decision by referring to paragraph 4 of the Regulatory Resolution and indicated that the limitation period is three years, starting from January 17, 2020 and expiring on January 17, 2023, the plaintiff missed the deadline.
A three-year period for filing an action by the insurer against the policyholder as a counterclaim is calculated from the date of insurance payment (Article 28 of Law No. 446).
Pre-trial dispute resolution procedure
The Insurance Ombudsman has been operating in Kazakhstan since 2007. Thus, Law No. 244 of May 7, 2007 supplemented Law No. 446 with articles 30-1, 30-2, 303 and 30-4 regulating the activities of the Insurance Ombudsman.
Law No. 166-VI of July 2, 2018 supplemented the Law on Insurance Activities with Chapter 15 "Insurance Ombudsman".
Relevant amendments were made to Law No. 446, Law No. 444 and other laws on compulsory insurance, according to which, in the event of a dispute, the policyholder (beneficiary) had the right, at his discretion, to submit a written application to the insurer indicating the requirements and attaching supporting documents, or to send an application to the insurance ombudsman or to the court for dispute settlement. Law No. 138-VII of July 12, 2022 amended the Law on Insurance Activities and the laws on compulsory insurance, according to which contacting the insurance ombudsman became mandatory before going to court.
Paragraph 5 of Article 90 of the Law on Insurance Activity is set out in a new wording: "The persons specified in the second part of paragraph 1 of Article 86 of this Law, who are policyholders (insured, beneficiaries), as well as the insurer, have the right to apply to the court in accordance with the legislation of the Republic of Kazakhstan after receiving the decision of the insurance Ombudsman.
At the same time, the execution of the decision of the insurance ombudsman for the policyholder (insured, beneficiary) is not mandatory."
Relevant amendments have been made to the laws on compulsory insurance. Resolution No. 60 of the Board of the Agency of the Republic of Kazakhstan for Regulation and Development of the Financial Market (hereinafter – the ARFR) dated September 12, 2022 approved the Rules for the election and Implementation of the Activities of the Insurance Ombudsman.
Thus, starting from January 1, 2024, contacting the insurance ombudsman is a mandatory step before applying to the insurance dispute settlement court. In accordance with the second part of paragraph 1 of Article 86 of the Insurance Law, the Ombudsman regulates disputes between insurers (insured, beneficiaries) and insurance organizations arising from insurance contracts.
At the same time, courts should keep in mind that not all disagreements between policyholders (insured, beneficiaries) and insurance organizations arising from insurance contracts are subject to consideration by the insurance ombudsman.
The law distinguishes the subjects of treatment by type of insurance and limits the amount of their claims. Thus, individuals and (or) small business entities that are policyholders (insured, beneficiaries) have the right to contact the insurance ombudsman to resolve disputes on all types of insurance. Other legal entities may apply to the insurance Ombudsman only for the class (type) of compulsory insurance of civil vehicles. liability of the owners The amount of claims for disagreements of these persons should not exceed ten thousand times the amount of the MCI.
In practice, a question has arisen: should insurance companies exercising their right to claim back (article 28 of Law No. 446) or the right to claim by way of subrogation first contact the insurance ombudsman?
Here it is necessary to pay attention to the content of paragraph 1 of Article 29-1 of the Law No. 446 in the new edition.:
"If there is a dispute arising from the contract of compulsory liability insurance of vehicle owners, the policyholder (victim, beneficiary) has the right in writing:
send an application to the insurer (including through a branch, representative office, other separate structural unit, or the insurer's online resource) indicating the requirements and attaching documents confirming its requirements, or send an application to the insurance Ombudsman (directly to the insurance ombudsman, including through his online resource, or through the insurer, including through its branch, representative office, other separate structural unit, Internet resource) or to the court for dispute settlement, arising from the contract of compulsory liability insurance of vehicle owners, taking into account the specifics provided for by the Law on Insurance Activities.
Thus, this rule deals with the consistency of the dispute resolution procedure for the policyholder, the victim and the beneficiary, but not for the insurer making a claim by way of recourse.
With regard to subrogation, Subrogation (Latin subrogatio — replacement) is the transfer to the insurer who paid the insurance indemnity of the right to claim compensation from the person responsible for the damage caused to the insured in the reimbursed. within the limits specified in subparagraph 2) According to paragraph 1 of Article 86 of the Law on Insurance Activity, the Ombudsman regulates insurance disputes between policyholders (insured, beneficiaries) and insurance organizations arising from insurance contracts.
In this case (with subrogation) There is no dispute between the policyholder and the insurer arising from the insurance contract.
The harm-doer, who is being claimed by the insurance company that made the insurance payment, is not a party to the property insurance contract.
The right of claim transferred to the insurer is exercised by it in compliance with the rules governing the relationship between the policyholder (insured) and the person responsible for losses.
Consequently, the requirement for the insurance company to comply with the pre-trial dispute resolution procedure by contacting the insurance ombudsman cannot be considered justified.
Other examples of unjustified return and abandonment of claims without consideration due to non-compliance with the procedure for pre-trial dispute settlement By the ruling of the Zhetysu District Court of Almaty dated May 3, 2024, the claim of G. to LLP "A" for recovery of material damage caused as a result of an accident was unlawfully left without consideration.
The court stated that the plaintiff did not comply with the pre-trial dispute settlement procedure, and the decision of the insurance ombudsman was not submitted.
The appellate instance reasonably, with reference to article 86 of the Law on Insurance Activity, did not agree with this conclusion of the court, pointing out that the subject of the claim is the recovery of material damage caused as a result of an accident, namely, the recovery of the amount of damage uncovered by the insurance payment.
The legal basis of the claim is the norms of Articles 917 and 924 of the Civil Code. In this case, the parties to the case are the victim of the accident and the owner of the vehicle.
On a similar basis, M.'s claim against N. for recovery of material damage caused as a result of an accident was unlawfully dismissed (Zhetysu District Court of Almaty case No. 7515-24-00-2/11).
By a ruling dated February 21, 2024, the Council of Economic and Social Council of Almaty unreasonably returned the claim of JSC IC N to LLP A for the recovery of the amount by way of recourse, indicating the need to comply with the pre-trial dispute resolution procedure by filing a claim.
The court of Appeal corrected the error made by the court, pointing out that the stated subject of the dispute does not imply a pre-trial settlement of the dispute, since it is not established by law and there are no contractual relations between the parties.
Analyzing the judicial practice on this topic, the Pavlodar Regional Court asked the question: is the policyholder (insured, beneficiary) entitled, after the ombudsman's decision, to file a claim against the insurance company directly to the court, without appealing the Ombudsman's decision? When applying the above-mentioned norms of insurance legislation in terms of compliance with the pre-trial dispute resolution procedure, the courts must take into account that if the insurance ombudsman has considered a dispute between the policyholder (insured, beneficiary) and the insurance company, then its decision is mandatory for the insurance company if accepted by the policyholder (insured, beneficiary) and optional for the policyholder (insured, beneficiary), who, if they disagree with the decision of the insurance Ombudsman, have the right to apply to the court.
In this case, the subject of the claim will not be the decision of the Ombudsman, but the decision of the insurance company. In this case, an analogy can be drawn with the resolution of labor disputes, when contacting the conciliation commission is mandatory for the party to the dispute, but in case of disagreement with such a decision, the party applies to the court for dispute resolution without appealing the decision of the conciliation commission.
As a result of the accident, K. caused damage to T.'s car, which contacted the insurance company of the perpetrator.
The insurance company determined the amount of damage in the amount of 212,869 tenge. Due to the disagreement with the calculation, the plaintiff applied to the insurance ombudsman with an application for an increase in the amount of the insurance payment.
By the decision of the Insurance Ombudsman, the amount of insurance payment was increased by 97,463 tenge.
Disagreeing with the Ombudsman's decision, T. appealed to the Taraz City Court to JSC IC J with a claim for invalidation of the calculation results and recovery of the difference in the insurance payment.
Based on the results of the analysis, the courts of the republic propose to create representative offices of the Ombudsman in the regions, since the resolution of all disputes in the republic by one person creates a large influx of appeals and delays in their resolution.
The Mangystau Regional Court and the Shymkent City Court consider it necessary to propose the creation of regional insurance ombudsmen, and the Abai Regional Court suggests providing a representative insurance ombudsman in each region.
However, it should be noted that in accordance with the norms contained in chapter 15 of the Law on Insurance Activities, only one insurance ombudsman can act in the republic.
According to paragraph 5 of Article 91 of the Law on Insurance Activities, the office of the Insurance Ombudsman must contain services and specialists in information technology, law, accounting and financial reporting, in the field of assessment, handling applicants' complaints and other (other) services (specialists) based on the decision of the Insurance Ombudsman, approved by the Council of representatives of the Insurance Ombudsman.
The courts of the West Kazakhstan region and Aktobe region propose to consider amendments to Article 92-1 of the Law "On Notaries", to introduce mandatory out-of-court settlement of disputes on claims for recovery of insurance payments by way of a reverse claim (Article 28 of Law No. 446), that is, an appeal to notaries on the issue of obtaining an executive inscription.
However, the generalization showed that such requirements cannot be considered indisputable.
Simplified (written) proceedings may be recommended.
Regulatory framework
The main regulatory legal acts to be applied in the consideration of cases of the generalized category are:
The Constitution of the Republic of Kazakhstan,
The Civil Code (hereinafter referred to as the Civil Code);
The Civil Procedure Code (hereinafter referred to as the CPC);
The Labor Code (hereinafter referred to as the Labor Code);
The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code) dated December 25, 2017 No. 120-VI SAM (hereinafter referred to as the Tax Code);
The Code of the Republic of Kazakhstan "On Administrative Offenses" dated July 5, 2014 No. 235-V SAM (hereinafter CAO);
Laws of the Republic of Kazakhstan:
"On Insurance Activities" dated December 18, 2000 No. 126 (hereinafter referred to as the Law on Insurance Activities);
"On compulsory insurance of civil liability of private notaries" dated June 11, 2003 No. 435;
"On compulsory insurance of civil liability of audit organizations" dated June 13, 2003 No. 440;
"On Compulsory Insurance of the carrier's Civil Liability to Passengers" dated July 01, 2003 No. 444 (hereinafter referred to as Law No. 444);
"On Compulsory Insurance of civil Liability of Vehicle Owners" dated July 01, 2003 No. 446 (hereinafter referred to as Law No. 446);
"On compulsory tourist insurance" dated December 31, 2003 No. 513;
"On compulsory insurance of civil liability of owners of facilities whose activities are associated with the risk of harm to third parties" dated July 7, 2004 No. 580;
"On compulsory insurance of an employee against accidents in the performance of his labor (official) duties" dated February 7, 2005 No. 30; "On compulsory social health insurance" dated November 16, 2015 No. 405-V;
"On the Insurance Benefit Guarantee Fund" dated June 3, 2003 No. 423;
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated October 6, 2017 No. 8 "On Judicial Practice in Disputes arising from Insurance Contracts" (hereinafter referred to as the Regulatory Resolution);
Rules for determining the amount of damage caused to a vehicle, approved by Resolution No. 14 of the Board of the National Bank of the Republic of Kazakhstan dated January 28, 2016 (hereinafter referred to as the Rules) and other regulatory legal acts.
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