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Insurance Helpline | Lightning knocks out Tacuma, insurer won’t pay

Published:Sunday | April 17, 2016 | 4:00 AM

QUESTION: I am writing to you in utter frustration! On October 10 last year, my car, a Chevrolet Tacuma, was in a lightning storm at Holywell in the Blue Mountains. After the storm ended, the car could not start. It had to be towed into Kingston. I submitted a claim under my comprehensive policy. The insurer denied the claim but has recently offered an ex-gratia settlement for $50,000. A reputable repairer gave an estimate for $250,000. Insurers say their forensic investigation has failed to turn up the expected melted wires, burn marks, etc. An engineer told me that the damage probably arose from an electrical surge much in the same way that a TV or refrigerator would get damaged.

I have three concerns. First, seven months have passed since the incident and we are no closer to a resolution. The second is that this type of damage is going to become more prevalent with even more highly computerised vehicles coming into the market. The insurance industry needs to be better prepared to handle claims like mine. The poor quality of service that the broker and insurer delivered is also very worrying. None showed any empathy that I have incurred significant additional costs or that the ongoing situation is causing disruption. Can I get compensation for the loss of use of my car, the expenses I have incurred over the protracted time it has taken for the company to make a decision, and for my pain and suffering?

E.W., Kingston 6.

INSURANCE HELPLINE: Any thought that the article I wrote on March 6, 2016, "It's time to speak up about self-driving cars", was about the future it was not your experiences with your insurer and broker are certainly about the present.

Electronic systems are now embedded into motor vehicles from Formula One Cars to family passenger vehicles.

My earlier piece mentioned autonomous emergency braking systems (AEBS) and collision- avoidance systems. These and other types of automotive systems engine, transmission, chassis, driver assistance, passenger comfort, and entertainment systems are increasingly being controlled by electronic devices. Some of these things, I assume, were in your vehicle, and presumably, were affected by the lightning storm.

Lightning is a form of electricity. Benjamin Franklin discovered this over 200 years ago when he flew a kite during a thunderstorm. Lightning is one of the things that is covered by a comprehensive motor policy.

BURDEN OF PROOF

Policyholders must comply with legal rules when they submit insurance claims. One such rule is referred to as the 'burden of proof'. The claimant should prove that he or she suffered loss or damage, as defined by the insurance.

Simply put, the loss or damage should be caused by an insured peril like, say, lightning. The claimant must present enough evidence to meet that standard, 'on the balance of probability'. The latter is the yardstick that the burden of proof rule must meet in civil cases. It means that a court would be satisfied that an insured event occurred and, based on the evidence, the occurrence of the event was more likely than not.

In criminal cases, in contrast, the burden of proof is 'beyond a reasonable doubt'.

Did you meet the required standard of proof? Based on the information that you provided, I believe so.

The burden of proof rule also applies to insurers. When they argue that a particular claim is not covered by the insurance contract, the same standard applies. They are required to provide evidence that, on the balance of probability, the event did not occur or was excluded.

Your insurers have not met the burden of proof standard.

Here are some specific pieces of information that I believe are relevant to your claim:

1. The National Lightning Safety Institute (NLSI) http://lightningsafety.com/ states on its website on a page about 'Vehicles and Lightning', inter alia, that: "In many cases you will not find physical damage. Lightning can induce indirect effects to a vehicle's electrical and electronic systems. These low-voltage components may be damaged or destroyed. Auto dealer diagnostics are limited to "it works or it doesn't work" without the ability to disclose the cause or source of malfunction. Sometimes a claims decision may have to be based upon "What else other than lightning could have done the damage?"

2. My twin brother holds a first-class honours degree in electrical engineering from UWI and a D. Phil in plasma physics from Oxford University. He has lectured in physics at UWI Mona, UTech, and the University of Mico. He has confirmed the accuracy of the information in item 1.

Also, he had a personal experience when he parked his vehicle on premises where a radio transmitter was located. The vehicle would not start. He subsequently discovered that electromagnetic interference from the transmitter was the cause. The vehicle manufacturers referred to this problem in the handbook.

3. An electromagnetic pulse (EMP), according to Wikipedia, also sometimes called a transient electromagnetic disturbance, "is a short burst of electromagnetic energy. Such a pulse's origination may be a natural occurrence or man-made and can occur as a radiated, electric, or magnetic field or a conducted electric current, depending on the source ... EMP interference is generally disruptive or damaging to electronic equipment, and at higher energy levels, a powerful EMP event such as a lightning strike can damage physical objects such as buildings and aircraft structures."

4. Some policies specifically exclude damage caused by "magnetic, electric, or electromagnetic fields or radiation however caused or generated." Can a contract explicitly say that it provides protection against lightning and at the same, exclude it?

The questions that you have asked require the services of an attorney.

Electronic systems now form an important part of our daily lives as individuals, in government, industry, and commerce. There should therefore be clarity and certainty about the nature of the protection that insurance affords when lightning strikes.

Cedric E. Stephens provides independent information and advice about the management of risks and insurance. For free information or counsel, write to: aegis@flowja.com