The Timeline for the Presentation of Indemnification Offer by Insurers in Case of Motor Vehicle Accidents under the CIMA Code: Lack of Legislative Concern for Victims of Material Loss
Keywords:
Deadline, indemnification, reparation, offer, accident, third party, CIMA Code, compulsory insuranceAbstract
If the CIMA Code imposes deadlines for the presentation of indemnification offer to victims of motor vehicle accident or their heirs, the reason is simple; to coerce insurers to perform their obligation of repairing the loss incurred within a short notice. On this note, where an insurer fails to act according to the Code’s prescriptions, he shall be imputed penalties for late offer which shall be calculated based on the principal amount. Nevertheless, the CIMA Legislator sees the imposition of deadline for the presentation of offer to victims of material loss less of a necessity. This has greatly affected the reparation of material loss in the sense that insurers use it as an excuse to drag the presentation of offer for a long period of time. This paper therefore sets out to make a comprehensive analysis on the presentation of offer in case of material loss orchestrated by motor vehicle accident. This paper reveals that the CIMA Code does not sufficiently regulate the aspect of material damage in case of motor vehicle accidents. On this note, it is suggested that the CIMA Code should be amended to accommodate and sufficiently regulate the reparation of material damage resulting from motor vehicle accidents.
References
The term ‘third parties’ employed in this paper denotes those who are not parties to the insurance contract but can enforce rights and obligations under the contract. In the context of this study, they include; passengers, pedestrians and passengers of the other vehicle involved in the accident.
CIMA is a French acronym which stands for, Conférence Inter-Africaine des Marchés d’Assurance, loosely translated in English as Inter-African Conference for Insurance Markets41. At the initiative of CICA, the member states signed a treaty on 10th July 1992 establishing CIMA and the appendix of this treaty contained a shared insurance code known as the CIMA Code which entered into force on the 15th of February 1995. The code is the sole legislation that regulates the insurance industry in Sub-Sahara Africa. The sub-region consists of 15 Sub-Saharan African states which include: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Gabon, Guinea Bissau, Equatorial Guinea, Ivory Coast, Mali, Niger, Togo, and Senegal, Congo Brazzaville and Comoros Island. The code is segmented into 8 different books which deal different aspects of the insurance industry.
The reason is that the resulting damage may be too cumbersome for the tort-feasor to contain the reparation.
The premium is payable at the domicile of the insurer or of the intermediary under the conditions provided for in article 541. The effective date of the contract is subject to payment of the premium by the subscriber. Insurance companies are prohibited, under pain of the penalties provided for in Article 312, from taking out an insurance contract for which the premium has not been paid or from renewing an insurance contract for which the premium has not been paid. By way of derogation from the principle set out in the preceding paragraphs, a maximum payment period of sixty days from the date of entry into force or renewal of the contract may be granted to the subscriber, for risks for which the premium of the contract exceeds eighty times the annual minimum wage of the country of location with the exception of contracts for the automobile, health and goods transported branches. However, the subscriber will have to sign an express commitment to pay the premium of the contract before the expiry of the prescribed period. When the express commitment to pay the premium is materialized by a commercial paper, the maximum term stipulated may not exceed the period of 60 days above. If the premium is not paid within the agreed period, the contract is automatically terminated. The portion of the accrued premium remains with the insurer, without prejudice to any prosecution and recovery costs. The provisions of paragraphs 2 to 6 do not apply to the risks of the State and its branches for which periods of premium payment could be granted under the conditions defined by the Regional Insurance Control Commission.
It must however be intimated that the code does not provide any punishment for failing to subscribe to this insurance. It is therefore the responsibility of states parties to take the bull by its horn to clap down owners of motor vehicle with the exception of the state, who do not comply with its article 200.
Article 200 paragraph 1 of the CIMA Code.
The insurance contracts covering the liability mentioned in the first paragraph of this article must also cover the civil liability of any person having the custody or driving, even unauthorized, of the vehicle, with the exception of repair professionals, sale and control of the automobile, as well as the civil liability of the passengers of the vehicle covered by the insurance.
Notwithstanding the preceding provisions, the insurance obligation does not apply to your repair: 1 ° of the damage suffered: - a) by the person driving the vehicle; - b) during their service, by the employees or servants of the insured person liable for damages for the sums or heads of damage exceeding the indemnities provided for in this book and for the heads of damage not provided for. 2 ° damage or aggravation of damage caused by weapons or devices intended to explode by modification of the structure of the atomic nucleus or by any nuclear fuel, radioactive product or waste or by any other source of ionizing radiation and which engage the exclusive responsibility of an operator of a nuclear installation; 3 ° damage to buildings, things or animals affected or entrusted to the driver for any reason; 4 ° damage caused to the goods and objects transported, except with regard to the deterioration of the clothes of the transported persons, when this is the accessory of a bodily accident.
The insurance contract may, without contravening the provisions of article 200, include clauses providing for an exclusion of cover in the following cases: 1 ° when, at the time of the accident, the driver is not of the required age or does not have the valid certificates required by the regulations in force for driving the vehicle, except in the event of theft, violence or use of the vehicle without the knowledge of the insured; 2 ° with regard to the damage suffered by the persons transported, when the transport is not carried out under sufficient safety conditions laid down by an order of the competent authorities. In addition, the contract may include forfeiture clauses not prohibited by law, provided that they are included in the general conditions and that the forfeiture is justified by facts subsequent to the loss.
The exclusion provided for in 1) of the first paragraph of this article cannot be invoked against a driver holding a certificate declared to the insurer at the time of subscription or renewal of the contract, when this certificate is invalid for reasons relating to the place or duration of residence of its holder or when the restrictive conditions of use, other than those relating to the categories of vehicles, carried on it have not been respected.
See article 205 of the CIMA Code.
Same applies to the reimbursement of medical and pharmaceutical expenses (though this falls under bodily injury). Nevertheless, the non-provision of deadline for presenting offer for reimbursement after the accident is logical in the sense that the expenses cannot be pre-assessed immediately after the occurrence of the accident. On the other hand, it must be said that, the lawmaker needs to provide for a deadline for presentation offer in view of reimbursement to start running immediately after the constitution and requested letter for reimbursement is served to the insurer. This is based on the belief that since the victim used his resources to finance his medical bills, it is necessary to reimburse them within a brief notice in order to resituate him to his initial position before the said expenditure.
It states that, “A copy of any report relating to a traffic accident must be sent automatically to the insurers involved in the said accident by the officers or agents of the judicial police who noted the accident. The transmission period is 2 months from the date of the accident. The form and content of the minutes are harmonized within the Member States of CIMA.”
See Regulation N.0004/CIMA/PCMA/PCE/2022 modifying and completing the regimes of insurance contract and indemnification of victims. It should be noted that this regulation came into force on the 1st of August 2023 and modified and completed articles 65,230,231,236 and 256 of the CIMA Code.
See article 247 of the CIMA Code.
Article 231 paragraph 3 of the CIMA Code.
Ibid, article 248.
A good example is the unpractical reality of the above provision in Cameroon, a member state to CIMA. It should be noted that insurance companies in Cameroon blatantly disregard this provision but still remain unpunished. This is even what has fanned the flames of their perpetual disregard for article 231 as a whole.
Constructive loss refers to insignificant damage to a motor vehicle.
Actual loss refers to that where the vehicle is beyond repair or where the cost of repair is too high. This is the case that usually calls for the intervention of the insurer of the tortfeasor to effect the reparation of the prejudice.
See to this effect article 1147 of the Civil Code which states that “The debtor is ordered, where applicable, for the non-performance of the obligation, or by reason of the delay in performance, whenever the debtor does not prove that the non-performance was due to an external cause which cannot be attributed to him, even if there is no bad faith on his part.”
The provision of the Code only makes mention of “insurer” and “insured” and does not mention “victims” who are third parties (neither the insurer nor the insured).
In matters involving companies, the competent judge shall be that of the place where the company is established.
In this case, the learned President of the Court of First Instance Douala-Bonanjo, rejected the plaintiff’s claim for indemnification for failing to include the insured in the civil suit.
Arrêt N° 214 CIV/17 du 06 juillet 2017, Tribunal De Première Instance D’Abidjan-Plateau, première Chambre Civile.
Insurance companies are prohibited, under pain of the penalties provided for in Article 312, from taking out an insurance contract for which the premium has not been paid or from renewing an insurance contract for which the premium has not been paid.
Law No. 2016/007 of 12 July 2016 relating to the penal code.
Whoever destroys the whole or any part of any property belonging wholly or in part to another or charged in favor of another shall be punished with imprisonment for from 15 (fifteen) days to 3 (three) years or with fine of CFAF 5 000 (five) thousand to CFAF 100 000 (one hundred thousand), or with both such imprisonment and fine.
The insurer may at the request of the victim of the offence or the person vicariously liable be summoned to appear before the court to be heard and to be found liable jointly with the accused to compensate the victim for the damage caused by the offence.
This calls for the application of article 231 paragraph 4 of the CIMA Code as it posits that “The offer includes all elements compensable for the damage, including elements relating to damage to property when it has not been the subject of prior settlement.”(1) Anyone who alleges that he suffered injury as a result of the commission of an offence may make an oral or written application for damages in court. (2) The civil party shall indicate the damages which he is claiming, (3) Where the victim of an offence has not make an application for damages, the Presiding Magistrate shall ask him if he intends to do so. (4) The application for damages by a civil party shall be made before the end of the proceedings otherwise it shall be inadmissible. (5) When a person has applied for damages as a civil party, mention of this fact shall be made in the judgment. (6) Where the victim of an offence summoned as a civil party does not appear to indicate his claim for damages, the court shall decide on the criminal action only. In this case, the victim shall retain his right to bring a civil action.
This relates to a case where the accident only results to material loss.
This signifies a case where the accident results to both personal injury and material loss.
When the insurer who guarantees civil liability and the victim have not reached an agreement within the time period provided for in article 231, the compensation due by the insurer is calculated according to the terms set out in articles 258 and following. The dispute between the insurer and the victim can only be brought before the judicial authority after the expiration of the period of article 231. The judge fixes the compensation in accordance with the terms set out in Articles 258 and following.
The victim is required, at the insurer's request, to provide the following information : ∙ 1 ° his surname and first names; ∙ 2 ° his date and place of birth; ∙ 3 ° his professional activity and the address of his employer (s); ∙ 4 ° the amount of his professional income with the relevant supporting documents; ∙ 5 ° the description of the injuries to his person accompanied by a copy of the initial medical certificate and other supporting documents in the event of consolidation; ∙ 6 ° the description of the damage caused to his property; ∙ 7 ° the names, first names and addresses of the dependents at the time of the accident; ∙ 8 ° the list of third-party payers called upon to pay him benefits; ∙ 9 ° the place where correspondence must be addressed. The victim is required, at the insurer's request, to produce the following documents: ∙ 1 ° identity card; ∙ 2 ° extract of birth certificate; ∙ 3rd marriage certificate.
When the offer of compensation must be presented to the beneficiaries of the victim, to his or her spouse (s) or to the persons mentioned in article 265, each of these persons is bound, at the request of the insurer to give him the following information : ∙ 1 ° his surname and first names; ∙ 2 ° his date and place of birth; ∙ 3 ° the surname and first names, date and place of birth of the victim; ∙ 4 ° his links with the victim; ∙ 5 ° his professional activity and the address of his employer (s); ∙ 6 ° the amount of his income with the relevant justifications; ∙ 7 ° the description of its damage, in particular the costs of any kind that it incurred as a result of the accident; ∙ 8 ° the list of third-party payers called upon to pay him benefits, as well as their addresses; ∙ 9 ° the place where correspondence must be addressed. At the request of the insurer, the same persons are required to produce the following documents: ∙ 1 ° death certificate of the victim; ∙ 2 ° judgment of heredity not appealed against; ∙ 3 ° certificate of life of the beneficiaries; ∙ 4 ° the type of death certificate; ∙ 5 ° the civil acts of the beneficiaries and their identity documents.
The payment of the agreed sums must be made within a period of one month after the expiry of the period for denunciation set in article 235. Otherwise, unpaid sums automatically produce late interest equal to 5% of the amount of compensation per month regardless of the victim's claim.
Taxi, motor bike, interurban buses etc.
It should be noted that once an insurer is seized for reparation of a vehicle, an evaluation of the loss incurred is always done by the insurer which in insurance term is known as counter material expertise. This is always done on the basis of an invariable estimative presented by the victim. When the victim is not satisfied with the results of the counter expertise, they have the right to resolve to a third party expertise which becomes ultimate. Though the CIMA Code does not provide for this, it has been the recurrent practice in Cameroon notably for those who even entertain the claims of such victims.
The offer of compensation must indicate, in addition to the particulars required by article 231, the assessment of each head of damage and the amounts due to the beneficiary. The offer specifies, where applicable, the limitations or exclusions of compensation retained by the insurer, as well as their reasons. In the event of exclusion from compensation, the insurer is not required, in its notification, to provide the information and documents provided for in the first paragraph.
The payment of the agreed sums must be made within a period of 15 days after the expiry of the period for renunciation set in article 235.
When the victim, or his dependents provide only part of the information requested by the insurer in his correspondence and the response does not allow, due to the lack of sufficient information, to establish the offer of compensation, the insurer has a period of one month from receipt of the incomplete response to submit a new request to the person concerned, specifying the missing information. In the event that the insurer has not respected this deadline, the suspension of the periods provided for in Articles 249 and 250 ceases at the expiration of a period of one month from the receipt of the incomplete response, when that -ci reached beyond the six-week period mentioned in the same articles; when the incomplete response has been received within the six-week period referred to in Articles 249 and 250 and the insurer has not requested the necessary information within fifteen days from receipt, there is no need suspension of the time limits provided for in Article 231.
