Insurance Recourse – When the Insurer Can Demand Repayment and How to Defend Yourself
A driver who has caused an accident may be surprised to receive a demand for repayment of compensation paid by their insurer to the injured party. This demand – known as insurance recourse – is a statutory mechanism, but its scope is strictly limited. Insurers tend to interpret the conditions for recourse broadly, which is why it is worth knowing when a demand for repayment is justified and when it can be effectively challenged.
Contents
- What insurance recourse is and its legal basis
- Driving under the influence of alcohol or narcotics
- Driving without the required licence
- Fleeing the scene of an accident
- Intentionally causing damage
- When the insurer’s recourse claim is unfounded
- Defence strategy
- Practical examples from our caseload
- FAQ
What Insurance Recourse Is and Its Legal Basis
Insurance recourse – also called a right of recovery – arises when an insurer that has paid compensation to an injured party under the at-fault driver’s third-party liability policy then seeks repayment of that sum from the driver. In normal circumstances, taking out a third-party liability policy protects the driver from personal financial liability to injured parties – the insurer assumes that liability. Recourse is an exception to that rule.
The legal basis for recourse in road traffic cases is Article 43 of the Act of 22 May 2003 on Compulsory Insurance, the Insurance Guarantee Fund and the Polish Motor Insurers’ Bureau. That provision contains a closed list of situations in which the insurer may seek repayment. This means that outside the cases expressly listed in the statute, the insurer has no right of recourse – regardless of what the General Terms and Conditions of the policy may say.
Driving Under the Influence of Alcohol or Narcotics
Recourse is available to the insurer where the driver was in a state of use of alcohol (from 0.2 per mille), in a state of intoxication (from 0.5 per mille) or under the influence of narcotics. This also covers situations where the driver refused to submit to an alcohol or drug test.
Defending against such a claim can take several forms. It is worth examining the conduct of the test – whether the breathalyser was properly calibrated, whether the measurement was carried out in accordance with the applicable procedure, and whether the correct interval was observed between the measurement and the incident. In some cases it may be possible to demonstrate that alcohol was consumed after the incident – which, while uncommon, can be an effective argument with appropriate documentation and a toxicologist’s opinion.
Separately from the question of the driver’s sobriety, the causal link between the driver’s condition and the damage caused is of critical importance. The insurer cannot simply demonstrate that the driver had alcohol in their system – it must also show that this condition contributed to causing the accident. If the collision was caused solely by the fault of another road user and the driver’s role was merely that of a participant in the incident, the argument of no causal link can be decisive.
Driving Without the Required Licence
Recourse is also available where the driver did not hold a licence for the relevant vehicle category. This covers both situations where a licence was never issued and where it was seized, revoked or had lapsed – for example due to the expiry of a required medical or psychological examination.
Defending against such claims requires, above all, an analysis of the circumstances in which the licence was lost or seized. If the licence was seized in breach of procedure, or if the driver had reasonable grounds to believe their licence was valid – for example due to an administrative error or defective service of a decision – it may be possible to challenge the very basis of the recourse claim.
As with alcohol, the causal link is significant. The mere possession or absence of a driving licence document does not establish that the driver was incapable of operating the vehicle safely. If the accident resulted from causes unrelated to the driver’s skills – for example a sudden mechanical failure – the argument of no causal link between the absence of a licence and the damage may be effective.
Fleeing the Scene of an Accident
Recourse is available to the insurer where the driver fled the scene. “Fleeing” means leaving the scene of a collision or accident without justification, failing to assist those injured or failing to notify the relevant emergency services.
A defence in such cases typically focuses on challenging the characterisation of the driver’s conduct as “fleeing.” Leaving the scene may have resulted from entirely different circumstances – the need to call for help from a location with better mobile coverage, the need to transport an injured person to hospital, or even a lack of awareness that an incident had taken place at all (for example, imperceptible contact between vehicles during a manoeuvre). Witness statements, CCTV footage, GPS data or telephone records can in such cases effectively corroborate the driver’s account.
The key is to demonstrate the absence of any intention to avoid responsibility – because it is precisely this element that distinguishes “fleeing” from other forms of leaving the scene.
Intentionally Causing Damage
Recourse is also available where damage was caused intentionally. This is a condition that the insurer must prove in full – the burden of proof lies with the insurer, not the driver. Intentionality means an intent to cause damage, not merely a conscious breach of road traffic regulations. These two concepts are frequently confused – both by insurers and by those who receive recourse demands.
In practice, proving intentionality is difficult. A defence consists in demonstrating that the incident was an accident or resulted from inattention, fatigue or a misjudgement of the situation. An expert opinion from an accident reconstruction specialist is often the most important piece of evidence here – it allows the mechanics of the incident to be objectively assessed and the insurer’s version that the driver acted intentionally to be tested against what is technically possible.
When the Insurer’s Recourse Claim Is Unfounded
Practice shows that a proportion of recourse claims are unjustified or at least doubtful. Among the most common cases are situations where the insurer seeks repayment without unambiguously proving the driver’s intoxication – relying, for example, solely on the incident report without a breathalyser result confirming that the statutory threshold was exceeded.
Another frequent error is overlooking the causal link requirement. The insurer may demonstrate that the driver breached the rules, but a breach alone is not sufficient – it must have a direct causal connection with the occurrence or aggravation of the damage. A breach that had no bearing on the course of the incident does not justify recourse.
Finally, insurers sometimes invoke General Terms and Conditions provisions providing for a broader range of recourse grounds than the statute. Article 43 of the Compulsory Insurance Act, however, is a specific and exhaustive provision – the General Terms and Conditions cannot extend the grounds for recourse beyond what the statute provides.
Defence Strategy
The first step upon receiving a demand for repayment is to analyse its basis carefully – whether the insurer is relying on a ground under Article 43 of the Act, whether it is attempting to base the claim solely on the General Terms and Conditions, and whether the amount demanded corresponds to the compensation actually paid. A recourse demand is a document that requires a specific and timely response – silence may be interpreted against the person liable.
The next stage is gathering evidence to challenge the basis for the recourse claim or to demonstrate the absence of a causal link between the driver’s conduct and the damage. Expert opinions, witness statements, medical and technical documentation, CCTV records – each of these can be relevant.
If negotiations with the insurer produce no result, the matter may go to court. In court proceedings, it is the insurer that must prove the merits of its claim – the driver is in the position of a defendant who can challenge both the legal basis and the amount claimed.
Practical Examples from Our Caseload
A driver received a demand for repayment of several tens of thousands of zlotys in recourse for an accident in which – according to the insurer – he had been driving in a state of use of alcohol. The documentation showed, however, that the breathalyser used had an expired calibration certificate and that the reading was close to the statutory threshold. The firm challenged the reliability of the test and applied for an expert toxicologist’s opinion. During the proceedings, the court dismissed the insurer’s claim, holding that it had not established the driver’s alcohol use beyond doubt.
A business owner received a recourse demand after it emerged that his driving licence had lapsed due to the expiry of the medical examination deadline – something he had not known about, as the decision requiring the examination had not been properly served on him. The firm demonstrated both the defective service and the absence of a causal link – the accident had been caused by the incorrect behaviour of the other road user, and the client’s driving ability had played no role in the incident. The insurer withdrew the recourse claim before court proceedings were initiated.
FAQ
Can the insurer seek recourse for any breach of road traffic regulations? No. The grounds for recourse are set out in a closed list in Article 43 of the Compulsory Insurance Act. A breach of road traffic regulations as such – speeding, failing to maintain safe following distance, incorrect overtaking – does not entitle the insurer to recourse, though it may be relevant to the assessment of contributory fault in other contexts.
How long does the insurer have to bring a recourse claim? An insurer’s recourse claim becomes time-barred under the general limitation rules of the Civil Code. As a general rule, the period is three years from the date the insurer became aware of the person liable to repay and of the amount of compensation paid. It is worth noting that the limitation period may be interrupted by various acts, including a demand for payment.
What if I cannot afford to repay the full recourse amount? Even where the recourse claim is justified, it may be possible to negotiate the terms of repayment – instalment payments, a deferred payment date or a reduction of the amount by way of settlement. It is also worth checking whether the insurer has correctly calculated the amount claimed – in practice it sometimes happens that the sum demanded exceeds the compensation actually paid or includes amounts not covered by the statutory recourse provisions.
Can I negotiate with the insurer before the matter goes to court? Yes, and it is strongly advisable to do so. Insurers are often willing to settle, particularly where the person liable can put forward arguments challenging the basis or level of the recourse claim. A professionally prepared response to a recourse demand – with a legal analysis and supporting evidence – is frequently sufficient to prompt negotiations and a settlement without court proceedings.
Contact Us
A recourse demand is a serious matter that requires a prompt and considered response – both in assessing the merits of the claim and in choosing the right defence strategy.
It pays to be properly prepared: both in knowing what you can claim and in having a clear strategy.
We handle cases for drivers in Poznań and across the Wielkopolska region, with in-person and online consultations available for clients elsewhere in Poland.
Adwokat Marta Krzyżanowicz and Adwokat Michalina Koligot Law Firm “Adwokat dla Kierowców w Poznaniu”
ul. Adama Mickiewicza 18/3, 60-834 Poznań
tel. +48 795 001 536 · +48 531 335 713
kontakt@adwokatdlakierowcy.pl · www.adwokatdlakierowcy.pl
This text is for general information purposes only and does not constitute legal advice. Every case requires individual analysis.