Vehicles as weapons: Impact on MTPL insurance in selected European Countries

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1 Vehicles as weapons: Impact on MTPL insurance in selected European Countries EMEA Claims Conference 2018, Rüschlikon, 6th - 7th March 2018, Andreas Hohl

2 The factual starting position 2

3 The potential a glimpse On 31 May 2017, a truck bomb exploded in a crowded intersection in Kabul, Afghanistan, near the German embassy at about 08:25 local time (03:55 GMT) during rush hour, killing over 150 and injuring 413, mostly civilians, and damaging several buildings in the embassy. The attack was the deadliest terror attack to take place in Kabul. The diplomatic quarter in which the attack took place is one of the most heavily fortified areas in the city, with 3-meter-tall blast walls, and access requires passing through several checkpoints. The explosion created a crater about 4.5 m (15 ft) wide and 3 4 m (10 13 ft) deep. Afghanistan's intelligence agency NDS claimed that the blast was planned by the Haqqani Network. Although no group has claimed responsibility, the Afghan Taliban are also a suspect but they have denied involvement and condemned the attack.

4 and a further one 1993 World Trade Center bombing Terrorist attack carried out on February 26, 1993, when a truck bomb detonated below the North Tower of World Trade Center in NYC. The 1,336 pounds (606 kg) urea nitrate hydrogen gas enhanced device was intended to send the North Tower crashing into the South Tower, bringing both towers down and killing tens of thousands of people. It failed to do so but killed six people and injured over a thousand.

5 The guiding question from an insurance perspective Can a Motor Third Party Liability Insurer definitely exclude being called for compensation of damage caused by a terroristic action involving a motor vehicle? Within this framework the following key aspects have to be considered: the validity of policy exclusions vs protection of victims coverage/compensation of Bodily Injury vs Material Damage what if the driver has rented or stolen the vehicle? the situation in case of claims arising from domestic accidents vs accidents abroad or involving vehicles licensed abroad the role of special indemnification bodies like Terror or Guarantee Funds and subrogation 5

6 The statutory basis for most European countries The following rules regulating the European road traffic play a key role: The Directive 2009/103/EC of the European Parliament and of the Council, providing for mandatory motor vehicle insurance (Article 3) and for a direct right of action against an insurance undertaking. The Internal Regulations of the Council of Bureaux (basis for the Green Card System), stipulating that claims shall be handled (by the correspondent) in conformity with any legal or regulatory provisions applicable in the country of accident that relate to liability, compensation of injured parties and mandatory motor insurance. Article 3 of the Convention of 4 May 1971 on the Law Applicable to Traffic Accidents, which provides that in event of damage the law applicable is the law of the country where the damage occurred. 6

7 The overarching considerations for the European statutory regime Facilitation of trans-border circulation Enforcement of obligation to insure against liability arising from the use of motor vehicles Minimum amounts of cover for Personal Injury (EUR 1m per victim or EUR 5m per claim) and for Property Damage (EUR 1m per claim) Indemnification of third party victims of accidents involving motor vehicles; comparable treatment irrespective of where the accident happened Facilitation of practical access to compensation (e.g. direct right of action against MTPL insurer, right to claim against MTPL insurer in country of domicile) 7

8 The contractual situation 8

9 The mechanism Terrorist Attack with Truck in Berlin Insurance Company $$$ Operator Driver (Terrorist) Keeper EUR 7.5m Fund / Scheme 9

10 The mechanism - Terrorist Attack with Truck in other Jurisdictions Insurance Company? Keeper $$$ Operator Driver (Terrorist) Fund / Scheme 10

11 Scenario A clear cut case Terrorist attack in France with motor vehicle registered in France French MTPL insurer Statutory Exclusion of insurer s liability in case of intentional act considered as belonging to ordre public Policy exclusion for intentional acts Special fund (FGTI) in place to compensate victims of terrorist acts No MTPL Insurance exposure if attack occurs in France; compensation of victims by FGTI No MTPL Insurance exposure if attack occurs abroad and only French victims; compensation of victims by FGTI 11

12 Scenario A clear cut case however If attack occurs abroad; in a country in which policy exclusions for intentional acts are not valid (e.g. Belgium) and there are foreign victims then MTPL Insurance exposure is possible despite of it all for the compensation of foreign victims, since FGTI only indemnifies French victims of an attack occurring outside of France! 12

13 The potential, based upon a highly simplified calculation A bus insured by a French MTPL policy and carrying 100 foreign passengers aboard is hijacked and driven into a crowded shopping alley in Brussels. Consequence: 100 people dead, 100 severely and 100 otherwise injured. If we (only) take an average loss of EUR 0.75m per dead EUR 4m per severely injured person and take EUR 25m for the other injured persons and the material damage we arrive at a frightening EUR 500 m loss for the MTPL insurer! Given the enormous loss potential in MTPL, bearing such exposure in mind appears highly advisable to any MTPL insurer 13

14 And finally, hot off the press New Swiss Re brochure on the topic at your disposal 14

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16 Legal notice 2018 Swiss Re. All rights reserved. You are not permitted to create any modifications or derivative works of this presentation or to use it for commercial or other public purposes without the prior written permission of Swiss Re. The information and opinions contained in the presentation are provided as at the date of the presentation and are subject to change without notice. Although the information used was taken from reliable sources, Swiss Re does not accept any responsibility for the accuracy or comprehensiveness of the details given. All liability for the accuracy and completeness thereof or for any damage or loss resulting from the use of the information contained in this presentation is expressly excluded. Under no circumstances shall Swiss Re or its Group companies be liable for any financial or consequential loss relating to this presentation. 16