Calculation of vehicle insurance franchise"Trap"

Chongqing de Lang law firm  Li Silei lawyer

Wang Guoqun lawyer

Address: Chongqing City, Jiangbei District, the Yanghe River Road 11, decimating. Ocean Plaza Building 4 13-6

Telephone.13062390581

In order to avoid the insured moral hazard, strengthen the insured safety management consciousness, many insurance contracts with insurance company franchise agreement. Insurance deductible has two types, one is deductible, refers to the insurer before making payment according to insurance contract, the insured person must bear the loss amount. Two is the franchise, the ratio of the insurance company is not the amount of compensation and the amount of loss. Vehicle insurance general provisions franchise, rarely agreed deductibles. Unfortunately, the insurance company to calculate way, franchise base, often using the advantageous way, not uniform identification and discrimination method also exists in the judicial practice. The insured person, because of the asymmetry of information, do not understand the knowledge of insurance and insurance regulation, the claim can not safeguard their legitimate rights and interests effectively. The author combines his understanding of the insurance clauses and handle cases of disputes over insurance contract to the insurance experience, franchise agreement as an example, and explores the way of computing franchise, which opened the insurance claim"Trap".

The franchise agreement, in a vehicle insurance clause

I owned dozens of insurance companies, insurance companies have their own vehicle insurance clauses. But the franchise agreement exists mainly in the main clause, namely the vehicle damage insurance, vehicle third party liability insurance and the responsibility of the personnel on the car insurance, pilfer etc.. Because the main clause shall be approved by China Insurance Regulatory Committee, so the vehicle insurance main clause difference of insurance company. With a large domestic property insurance company in the third party liability insurance clauses (clause no.:A01H01Z01090923) franchise clause in contract as an example: basic insurance claims in the calculation according to the insurance contract, stipulated in the insurance policy within the limits of liability, according to the following franchise franchise: negative secondary liability for the franchise5%The same, negative accident responsibility for the franchise10%The main responsibility of the accident, negative franchise for15%Take all the responsibility for the accident, the franchise for the20%.

The other main clauses of the franchise agreement except the data of different, no difference. According to the contract, after the accident, the insurance company will according to the insured motor vehicle driver for the accident responsibility for the corresponding size, franchise, the amount of loss will not be compensation for the corresponding. Of course in the driver need not assume responsibility, the insurance company is also need not assume liability to pay compensation liability insurance, without responsibility vehicle damage insurance does not pay practices have been abolished.

The calculation of two, when the franchise application"Trap"

Insurance deductible amount of calculation formula is: the deductible amount=Base * franchise, the amount of compensation=* (base1-Franchise). The insurance company on the base on the low - to high principles, if the loss amount determined in accordance with the contract of insurance is less than or equal to the sum insured, the amount of loss for the base, if the amount of loss is determined according to insurance contract is greater than the amount of insurance, the insurance amount for the base. In an insurance amount100Third party liability insurance contract million as an example, the occurrence of the insured event, secondary liability insurance vehicle driver negative accident, shall apply5%Franchise. The amount of loss is assumed to determine80Million and120Million in two cases, the insurance company is calculated as follows table deductible amount and ultimately take the amount of insurance compensation situation:

Table 1:

Data unit: million

The insurance company the calculation basis can be traced back to explain Chinese Insurance Regulatory Commission "motor vehicle insurance clause" (CIRC (hair2000)102No.), calculation of the third party liability insurance indemnity the interpretation of such provisions: according to the limit of liability insurance policy as approved by the amount of compensation.1The amount of compensation. When the insured liability accident shall be according to the proportion of over compensation limit: limit of indemnity loss = x1- franchise2The amount of compensation. When the insured according to the proportion of accidents for the lower limit of indemnity: loss = shall compensate the amount x1- franchise)Among them"Limit of indemnity"Equal to the amount of insurance "","Should be the amount of compensation"As the in this paper"The amount of loss". In part the trial mechanism, but also the calculation of insurance companies.

However, according to the calculation method of the insurance companies, the insured person in situationBFell into the calculation of insurance companies"Trap"The legitimate rights and interests, be deprived of, lead to the insured pay premiums, the insurance company of unjust enrichment.

Insurance contract is a civil contract, follow the principle of equivalent exchange. In accordance with the contract law, the insurance amount shall be equal to the maximum compensation limit. In the example above, the amount of insurance the insured for the purchase of100Million yuan, as agreed upon in the insurance contract, the insured shall obtain the maximum compensation limit is100Million yuan. But according to the calculation method of the insurance company, you can never get a maximum compensation limit, that is to say, the insured to obtain the maximum compensation limit is always less than the amount of insurance. The responsibility of the accident is responsible, with responsibility, main responsibility and full responsibility. SituationBAccident liability is minimal, then can obtain is the maximum compensation limit, because in the case of other responsibilities, franchise applicable than the situationBFranchise high. However, the situationB, was the maximum amount of compensation insurance people are given95Million yuan, than100Million yuan less5Million yuan. This5Million in damages to where go to? Design into the insurance company"Trap".

The insurance company is able to design"Trap"Because the calculation, is deductible, a double standard in the base application, and to maximize their own interests. The amount of loss is less than or equal to the insurance limit, applicationAThe cardinal number, amount of loss is greater than the insurance limit, applicationBBase. The double standard, in the low - to high principles, as the case selection, between two standard profit, the insured pay the premiums, legitimate rights and interests of the insured deprived. SituationBIn the following table, loss or benefit of the parties:

Table 2:

GIsInsurance amount.JIsInsurance premium

The franchise is substituted into the above formula amount of insurance, insurance premium and responsibilities of K corresponding, can calculate the profits and losses of the parties.

Three, a reasonable way to franchise calculation

Calculation of the insurance company franchise in the applicable, that full compliance with the provisions of the insurance contract. Some trial court in adjudicating cases, on the basis of China Insurance Regulatory Commission, insurance company also recognized their defense. However, China Insurance Regulatory Commission's interpretation is not the law, and the insurance company according to the calculation mode of the interpretation of the violation of the law of our country.

First of all, in violation of the principle of fairness and strictly perform the contract principle. "Contract law" fifth stipulation: the parties shall abide by the principle of fairness to determine the rights and obligations of the parties. Rule sixtieth: the parties shall fully perform its own obligations as agreed. Computing franchise for the insurance company, the insured intellectual flaw, a double standard, not strictly perform the contract, not only overcharged the premium of the insured, and deprived of part of insurance claims, the insured shall obtain both profit, caused by the insured, the insured and the insurance company the contract rights and obligations do not perform the contract, the insured is unfair.

Secondly, in violation of the principles of interpretation of terms of format. Although the vehicle insurance main clause after the approval China Insurance Regulatory Commission, but cannot deny insurance clause insurance company unilaterally enacted the fact. "Contract law" the forty-first stipulation: the dispute over the understanding of the standard terms occurs, it shall be interpreted in accordance with common sense. There are two more on the interpretation of terms of format, shall be made against the party that provides the standard clauses interpretation. "Insurance law" thirtieth article also provisions to do the same. Vehicle insurance clause in the franchise agreement can make two kinds of explanation. Franchise is still the property insurance company, third party liability insurance clause in the agreement as an example,"In according to the insurance contract on the basis of the calculation of indemnity, stipulated in the insurance policy within the limits of liability"Is applicable to cardinal way to determine the franchise, the first explanation I called"Parallel conditional": before and after the two layers of meaning constitute the common conditions on the base determination, together, that is "base according to insurance contract agreement reparations and calculation of" not more than "specified by the policy limit of liability", whichever is small for a franchise of the base. Second explanations of the author called "selective": if the "calculation of the loss according to insurance contract agreement" is less than or equal to "specified by the policy limit of liability", then to "according to insurance contract agreement reparations for calculating" franchise base (Table 1 of A); if "according to insurance the contract of indemnity" greater than "calculation specified by the policy, the limits of liability" is no longer applicable franchise, the insurance company paid directly to the insurance indemnity in accordance with the amount of insurance. Two explanations are consistent with common sense, in accordance with the principle of interpretation of the terms of the format, starting from the angle of the insurance company shall not, by using second kinds of interpretation. The main purpose of franchise clause is to prevent the insured moral hazard, mining second explanation is also consistent with the objective, because the amount of loss exceeds the insured amount in case, the insurance company cannot compensate for all the insured losses, there must be a part of the responsibility of the bank to bear.

Interpretation in accordance with the second, a double standard in the base on the calculation of the insurance company franchise in the applicable when the situation is eliminated, the base fixed to be the loss amount insured "according to insurance contract agreement, and the calculation of loss" "specified by the policy limit of liability" as the franchise's can apply restrictions. So, in the case B, the amount of loss is greater than the amount of insurance, the franchise is not applicable, the insurance company shall pay the insured damages of 1000000 yuan. So far, fell into the insurance company "50000 yuan calculated trap" compensation in the return of the insured, the compensation limit is equal to the amount of insurance contract can be realized, the insured are not there to pay premiums, the insurance company is not unjust enrichment, fair and reasonable rights and obligations of the parties, the insurance contract be strictly observed.

Four, the conclusion

The value and meaning of its existence insurance franchise, is an essential component of auto insurance, but the insurance franchise should not become the insurance company insured interests infringed tool. Vehicle insurance relates to the interests of the public, people's livelihood, the rational use of franchise can be deductible significance to play to the best, can play the role of insurance economic development, maintain social stability.