CCTV NewsIt is the consensus of many car owners to find a surrogate driver after drinking and socializing, but if the surrogate driver is fully responsible for the traffic accident, should the insurance company insured by the owner unconditionally settle the claim? Recently, the Shanghai No. 1 Intermediate People’s Court (hereinafter referred to as the Shanghai No. 1 Intermediate Court) heard a case of subrogation by an insurance company caused by "Internet + surrogate driving". The court ruled that the surrogate driving company should be liable to the insurance company according to law.
At 21:33 on October 22, 2014, Mr. Zhou contacted a car service company to provide chauffeur services. At 21:45, the chauffeur Tang arrived at Mr. Zhou’s location. Due to Mr. Zhou’s drinking, his friend Cai signed a "entrusted chauffeur service agreement" (hereinafter referred to as the "agreement") with a car service company. The signature of the "agreement" was stamped with the seal of a car service company.
At 21:50, Tang had a traffic accident while driving Mr. Zhou’s vehicle, causing damage to the three vehicles. The traffic police department determined that Tang was fully responsible for the accident. Afterwards, the insurance company that insured Mr. Zhou’s car paid Mr. Zhou 53,300 yuan for the claim, and then obtained the transfer of rights issued by Mr. Zhou, and sued a car service company in court.
The insurance company believes that a car service company, as the party providing the driving service, should ensure the safety of the vehicle. Now the company is responsible for the accident and should bear the liability of 53,300 yuan.
The court of first instance ruled in favor of all the claims of the insurance company. A car service company refused to accept it and appealed to the Shanghai No. 1 Intermediate Court, requesting that the original judgment be revoked and the original lawsuit request of the insurance company be rejected. An auto service company appealed that it was only a driver information service platform, an intermediary who provided driver service information to drivers and customers and facilitated the signing of the Agreement between the two parties, and was not a party to the Agreement. The driver-on-behalf relationship occurred between Mr. Zhou and Tang. Even if compensation is required, it should be Tang’s compensation.
A car service company also proposed that the "Agreement" has stipulated relevant exemption clauses. For example, Article 12 stipulates that the client should first use vehicle insurance to settle claims. The company only compensates for "the part that falls within the scope of insurance liability but fails to pay", "the increase in insurance premiums in the following year" and "traffic compensation". Article 9 "Traffic accidents caused by non-personnel operations" are not responsible. When the customer logs in to the company platform to register, the company has informed the above exemption content, and the company’s website has also been publicized. When Mr. Zhou placed an order on the same day, the company also sent the relevant terms to Mr. Zhou via SMS. Therefore, the company has fully informed the exemption clause, and the exemption clause is legal and valid, and the company should be exempted accordingly.
After the trial, the Shanghai First Intermediate Court held that it was not improper for the insurance company to assert the right of subrogation against an automobile service company based on the contractual relationship between an automobile service company and Mr. Zhou, and the exemption clause was not legally effective because it failed to provide a prompt explanation. An automobile service company should be liable for the losses caused by the traffic accident. Finally, 2nd-round Moderation rejected the appeal and upheld the original judgment.
The Shanghai No. 1 Intermediate Court held that an automobile service company affixed the official seal to the "entrusted party" of the Agreement, and Mr. Zhou’s friend Cai signed it at the "customer confirmation". An automobile service company also recognized that Mr. Zhou sent the information that needs to be driven to the company. According to the agreement in the Agreement that "the agreement signed by the accompanying person shall be regarded as signed by the client himself", Mr. Zhou and an automobile service company reached an agreement on the Agreement. The Agreement has come into effect, and the two parties have established a trust contract relationship. An automobile service company is a party to the Agreement. It is not improper for an insurance company to claim the right of subrogation from an automobile service company based on the contractual relationship between an automobile service company and Mr. Zhou. In addition, an automobile service company provides paid driving services, and the designated driver is fully responsible for traffic accidents during the driving process. Therefore, the company is at fault in the performance of the contract and should compensate the client, Mr. Zhou, for his losses.
The "Agreement" is a format contract provided by the company, and Article 12 of it is a limitation of one’s own liability. The "Agreement" does not take black or bold methods to draw the attention of the client. The company claims to prompt customers through notifications during website registration and sending text messages, but does not provide evidence to prove it. Therefore, this clause has no legal effect because it fails to fulfill the obligation to prompt and explain. In addition, since the driver Tang is fully responsible for the traffic accident, this case does not fall under Article 9 of the "Agreement". "Therefore, an automobile service company shall be liable for the losses caused by the traffic accident. (CCTV reporter, Li Wenjie)
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