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38/5
car stolen from driveway – whether firm was right
to reject complaint on the grounds of customer’s ‘carelessness’
Miss L’s car was stolen from the driveway of her home
while she was inside the house. She neither saw nor heard
the theft. When she put in a claim to the firm, it asked
her to send it her car keys. However, she was only able
to produce the spare ignition key.
Taking this as evidence that the key had been in (or on)
the car when it was stolen, the firm rejected Miss L’s
claim. It said that by failing to ‘exercise reasonable
care in safeguarding her car’ she had breached
a general condition of her policy.
Miss L objected to this. She said that the key had definitely
not been in the car when it was stolen. She had lost the
key a month earlier and had been using the spare. She was
adamant that she had not been ‘careless’,
as the firm had suggested. After the firm rejected her complaint,
she came to us.
complaint rejected
We agreed with Miss L that she had not been ‘reckless’.
As we noted in our last issue, someone is reckless if they
recognise a risk, but deliberately ‘court’
it. Miss L had not done this, so the firm was wrong to say
that she had breached the ‘reasonable care’
condition.
However,
the firm’s policy also contained a specific (and very
comprehensive) clause that excluded claims for cars stolen
when the keys were left in them. The firm had specifically
highlighted this clause when it sold Miss L the policy.
And as we were not satisfied with Miss L’s explanation
that she had lost the original car key, we concluded on
balance that it was likely that she had left the key in,
or on, the car.
We were satisfied that the circumstances of this theft did
fall within the scope of that exclusion. She could be said
to have ‘left’ the keys in the car
because she had gone into the house, and was too far from
the car to be able to prevent it being stolen. In addition,
the fact that the car was parked so close to the road meant
it was relatively vulnerable to an opportunistic thief.
We therefore rejected the complaint.
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38/6
keys left in ignition – firm rejects claim –
whether firm had highlighted exclusion clause
Mr A parked his car opposite a letterbox and jumped out
to post a letter, leaving the key in the ignition. While
he was crossing the road to reach the letterbox, someone
stole his car.
Mr A was horrified when the firm rejected his subsequent
claim on the grounds of its ‘keys in car’ exclusion
clause. He said that the firm had never told him the policy
included such a clause and, eventually, he complained to
us.
complaint upheld
By turning his back on the car and walking away from it,
Mr A had fallen foul of the ‘keys in car’
clause in the policy. In legal terms, he had left the car
‘unattended’ – in other words
he was not close enough to the car to make prevention of
the theft likely, as established in Starfire Diamond
Rings Ltd v Angel, (reported in 1962 in Volume 3 of
the Lloyd’s Law Reports, page 217); and in
Hayward v Norwich Union Insurance Ltd, (reported
in 2001 in the Road Traffic Reports, page 530).
Mr A accepted that he had left the car unattended. But he
claimed that none of the policy documents that the firm
had sent him (such as the policy schedule and certificate)
referred to the ‘keys in car’ exclusion.
The firm had set out the exclusion in the policy booklet
but had done nothing to draw Mr A’s attention to it
when it sold him the policy, as it should have done in accordance
with industry guidelines. We therefore felt it was fair
and reasonable to assume that Mr A had been prejudiced by
the firm’s failure to highlight the clause. If the
firm had clearly referred to the clause on the policy certificate
or schedule, Mr A might well have acted differently.
And
we were satisfied that Mr A had not acted ‘recklessly’.
Applying the test of ‘recklessness’
as set out in Sofi v Prudential Assurance (1993)
– he had not even recognised that there was
a risk, let alone deliberately courted it. We therefore
required the firm to pay Mr A’s claim.
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38/7
key left in car – theft recorded on CCTV – whether
firm right to use ‘key in car’ exclusion to
refuse claim
Mr H drove to the council-run tip to get rid of an old carpet.
While he was disposing of the carpet, someone stole his
car. He had left the keys in the ignition and, although
he hadn’t walked far from the car, he did not hear
or see anything suspicious. He only realised that his car
was gone when he turned back towards where he had left it.
The
firm turned down Mr H’s claim because he had left
his keys in the car. When it rejected his complaint about
this, Mr H came to us.
complaint rejected
The firm's decision not to pay the claim was based on CCTV
footage that it obtained from the council. This showed Mr
H walking away from his car with the carpet. It also appeared
that he had left the car’s engine running.
We
agreed that the firm had been correct in turning down the
claim on the grounds of its ‘keys in car’ exclusion.
Mr H had turned his back on the car after leaving it in
a public place and he was completely oblivious to the theft
until after it had happened. He had walked a fair way from
his car, so he was unlikely to have been able to prevent
the theft.
In this instance, Mr H had no excuse for not being aware
of the policy exclusion. The firm had highlighted it very
clearly on the policy certificate, a document that every
motorist is required to have by law. We therefore rejected
his complaint.
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from
the Financial Ombudsman Service
