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1) DAMAGE FROM “TECHNICAL STOPPAGE”
2) SETTLEMENT OF VALUE ADDED TAX(VAT) ON ESTIMATES
3) SETTLEMENT OF THE VEHICLE’S BEFORE-ACCIDENT VALUE IN
CASES OF UNECONOMICAL REPAIRS
SETTLEMENT OF MATERIAL DAMAGE
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Differences of judicial opinion:
1) settlement in equitable manner (Cassation sentence no. 1688 of 27/1/10, 3rd civil section; etc)
Due to the impossibility of using the damaged vehicle during the time required for its repair, even in the absence of specific proof of damage..
2) no settlement if damage not proven (Cassation sentence no. 17135 of 7/8/11)
It would be an exception to the general principle regarding the burden of proof being the responsibility of the party required to demonstrate it.
a) TECHNICAL STOPPAGE
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Differing judicial opinions:
• Compensation also includes VAT, even when repairs have not been completed, unless the injured party, through their professional activity, is entitled to reimbursement of VAT that has already been paid (Cassation sentence no. 1688/2010, section 3).
• VAT cannot be compensated in the absence of rigorous proof of effective payment (Justice of the Peace, Milan, sentence no. 109273 of 22/6/12).
b) SETTLEMENT OF VAT (value-added tax) ON ESTIMATES
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• DAMAGE BY EQUIVALENCE: restoring the commercial value before the accident, deducting any residual value of the crashed vehicle.
• REINTEGRATION IN A SPECIFIC FORM: request for a sum of money corresponding to the expenses required for restoration, ignoring the uneconomical aspect of repairs.
There are differing judicial opinions about restoring material damage in cases of uneconomical repairs:
c) SETTLEMENT OF THE VEHICLE’S BEFORE-ACCIDENT VALUE IN
CASES OF UNECONOMICAL REPAIRS
1) possibility of compensation for damages by equivalence ex article 2058, paragraph 2 of the civil code, in cases where the specific form requested leads to costs that exceed the value of the vehicle before the accident.
2) Full compensation of the damage also in the case of uneconomical repairs according to the principle of restoring the injured party’s asset to the same state it would have had in the absence of the harmful event which occurred (Justice of the Peace, Milan, sentence no. 109273 of 22/6/12 recognising a specific form).
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The national Bureau, in the event of an accident involving a motor vehicle registered in a foreign country which is a member of the Green Card system, takes on the function of:
domicile for:
- the insured foreigner
- the person responsible under civil law
- their insurance companies
passive legitimacy in the event of direct action that the injured parties (road accidents in Italy involving vehicles registered abroad) might take against the UCI according to articles 145 (paragraph 1), 146 and 147.
To ensure a proper cross-examination, the summons vocatio in ius should be sent to the UCI and to the person responsible for the damage, therefore the owner (joinder of parties required) and not the driver (Civil Cassation, section 3, 25/9/98) in the absence of which proceedings cannot be taken for the request integration of the cross-examination (Justice of the Peace, Milan, ordinance 13/2/04).
PASSIVE LEGITIMACY OF THE UCI
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UCI THE ONLY LEGITIMATE SUBJECT IN JUDICIAL TERMS (Article 126, code of insurance companies)
(Civil Cassation no. 259 of 12/1/99; Civil Cassation no. 5906 of 13/11/79; etc)
Example: Court of Lecco, sentence no. 876 of 13/12/06 accepted the exception regarding lack of passive legitimacy raised by defendant Avus Italia responsible for dealing with an accident on behalf of an insurance company.
ABSOLUTE AND MANIFEST LACK OF PASSIVE LEGITIMACY OF THE SERVICE COMPANY DELEGATED TO OUT-OF-COURT HANDLING OF ACCIDENTS INVOLVING FOREIGN COMPANIES
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• Notification of two distinct summonses to the UCI
IN THE CASE OF AN ACCIDENT INVOLVING TWO FOREIGN VEHICLES, BOTH RESPONSIBLE, IT IS IMPORTANT FOR THE INJURED PARTY TO SPECIFY THE INSURANCE COMPANY WHICH THE UCI IS REPRESENTING IN COURT
THE FOREIGN COMPANY CAN BRING AN ACTION INDEPENDENTLY WITH A DIRECT MANDATE TO A LAWYER FOR REPRESENTATION IN COURT
The UCI must anyway be part of the judgement process!
If the UCI were not involved in the court’s decision, the winning party would be forced to carry out the sentence abroad, with all the expenses involved.
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STOLEN FOREIGN VEHICLE THAT CAUSES AND ACCIDENT
Legislative decree no. 198 of 6.11.07 (“fifth directive auto”) introduced two new
“letters” (“d bis” and “d ter”) in the first paragraph of article 283, code of insurance
companies the Guarantee Fund for victims of road accidents, set up at CONSAP,
compensates damages caused by the circulation of vehicles and boats (those requiring
compulsory insurance) in cases including ...d) an accident caused by a foreign vehicle
with non corresponding number plate, or no longer corresponding to the same vehicle.
STOLEN FOREIGN LICENCE PLATE NUMBER
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SUMMONING THE FOREIGN OWNER AND THE INSURANCE COMPANY TO THE UCI WITHOUT ANY “VOCATIO IN IUS” AGAINST THE UCI, BUT WITH THE NOTIFICATION OF THE INTRODUCTORY DOCUMENT TO THE CONSORTIUM ORGANISATION
IMPOSSIBILITY OF FORMULATING AN ENACTMENT AGAINST THE UCI
Court of Como, 22 January 2009, sentence no. 82 – Since the party did not put forward any request for the conviction of the national bureau in the conclusions, nor was such a request minimally evident in the body of the introduction to the sentence subsequently notified to the U.C.I. it is not possible to formulate an enactment against the U.C.I. since the introduction to the present proceedings does not contain a request for the conviction of the foreign insurance company.
Relevant jurisprudence
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HOLD-HARMLESS SUMMONS OF THE UCI Court of Mantua, ordinance of 13/11/04: “.. the hold-harmless summons of the U.C.I. does not
seem to be a normal action, since the insured foreigner and the foreign insurance company are
domiciled ex lege at the U.C.I. for the purposes of controversies dealing with the insurance
relationship or direct action, while the case in point puts forward a hold-harmless request,
which would involve the direct summons of the foreign third party according to the general rules
as per article 142 of the civil code”.
The code of private insurance companies only grants the “injured party” the possibility of
carrying out direct action against the insurance company of the person responsible for the
accident; and an insurance company that launches a hold-harmless request cannot be
included in the notion of an “injured party”.
EXAMPLE: the defendant who blames the foreign owner or driver can take judicial action
against them by sending the summons to their foreign address, as per article 142 of the civil
code, stating that if they also send a hold-harmless summons to the U.C.I., the latter might
claim its lack of passive legitimacy and anyway the impossibility of proceeding with the case
since it does not deal with direct action.
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EXERCISING DIRECT ACTION
COMES INTO THE CATEGORY OF INJURED:
• The person who suffered lesions
• The person who suffered material damage
• The employer of the injured person
• The family members of the injured person
• The owner of the goods which have been lost because oth accident
• The insurer who reimbursed the damages against a comprehensive policy, and who takes on the rights of the insured party
• The bodywork repairer with credit against the insurance company following repairs to the vehicle
• The heirs of a person who died in a road accident
DOES NOT COME INTO THE CATEGORY OF INJURED PARTY:
• The insurer who makes a hold-harmaless request against another party involved in the accident
THE “JUDICIAL CONFESSION” SPONTANEOUS
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FORMAL INTERROGATORY OF THE SUMMONED FOREIGNER WHO FAILS TO APPEAR IN COURT
by the party personally by the representative of the juridical person
ACHIEVED BY MEANS OF FORMAL INTERROGATORY: LEGITIMATE PARTIES.
made
ARTICLE 228 OF THE CIVIL CODE STATES THAT
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INTERROGATORIO FORMALE DEL CONVENUTO STRANIERO CONTUMACE
Justice of the Peace, Milan, section 9 civil, 8 May 2004, sentence no. 5598 – This reconstruction of the accident, based on the defendant’s statements, the road accident report, the statements made by the witness, the damage to the vehicles involved, has not been contested by the defendant who, without any justification, did not appear at the hearing to render it valid, in spite of regular notification. Failure to reply certainly represents a fact linked to the wider subject of the behaviour during the hearing and, even though such conduct is not equivalent to a confession, nevertheless it shows a link to the other elements explaining the reasons for the accident. All these facts are convincing evidence of the exclusive responsibility of the foreign defendant for causing the accident in question.
Three possible approaches:
1) declare facts which are unfavourable to oneself and favourable to the counterpart
CONFESSIONAL STATEMENT
2) declare facts which are favourable to oneself and unfavourable to the counterpart NON-CONFESSIONAL STATEMENT
3) failure to attend or refusal to make a statement THE MAGISTRATE CAN ACCEPT FACTS DEDUCED FROM THE INTERROGATORY
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INTERNATIONAL ROGATORY
During a lawsuit, it can happen that certain parts of the proceedings have to be carried out in places located abroad, therefore outside the jurisdiction of the Italian system formal request to the foreign judicial authorities to carry out the task which has been delegated to you.
The parties involved are responsible for:
• checking the amount of time required for the rogatory;
• requesting from the delegating magistrate an urgent extension in the event of failure to complete the hearing in time. The expiry of the time limit without a request for extension means that evidence subsequently acquired will be declared null, hence unusable.
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THE PROBATORY VALUE OF THE C.A.I. FORM (CONSTATAZIONE AMICHEVOLE DI INCIDENTE – FRIENDLY ACCIDENT REPORT) SIGNED BY BOTH DRIVERS INVOLVED IN A ROAD ACCIDENT IS THE SUBJECT OF JUDICIAL DISCUSSION.
1) The court of legitimacy considers the C.A.I. form as a simple statement of fact, freely available for the magistrate’s information, along the lines of “confessional statements made by a third party” (Civil cassation, section 3, no. 4369 of 2 April 2002).
2) According to other sources, there are two legal opinions: the first, between the parties, which does not admit of any contrary evidence at all; the second, iuris tantum, against the insurer, which can be overcome with contrary evidence (Justice of the Peace, Monza, 20 May 2002, no. 829; Civil cassation, section 3, no. 4007 of 27 February 2004).
PROBATORY VALUE OF CAI FORM PRINTED IN ITALIAN AND SIGNED BY A FOREIGNER
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Unified sections (Civil cassation, unified sections, 5 May 2006, no. 10311)
Relevant jurisprudence
Court of Milan, 8 June 2006, no. 17752 – In cases where one of the two drivers is a foreigner and therefore unlikely to be fluent in Italian, the detailed hand-drawn sketch forming part of the C.A.I. form constitutes an important element since the act of drawing the sketch does not require any particular linguistic ability.
Contra
Justice of the Peace, Milan, 31 December 2009, sentence no. 30907 – The fact that one of the two drivers is a foreigner does not affect the validity of the C.A.I. form, even though the person is signing a sheet of paper including a declaration of responsibility not in their own language; nevertheless they understand the contents and are sure that the document reflects what actually happened.
Therefore, the CAI form signed by both drivers generates a presumption of iuris tantum valid for theinsurer, who can overcome this fact by providing contrary evidence in concrete terms or via recourse to other assumptions
