Law firm specializing in traffic accidents in Marseille
Our law firm in Marseille specializes in compensation for traffic accident victims and compensation for bodily injury.
What the Badinter law says
The debate that arises following a traffic accident causing injury or death between insurance companies on the one hand, and victims on the other hand, is a priori not fair. Rather, the insurer - who must compensate - will pay as late as possible, and as little as possible. On the contrary, the victim very often has an urgent need to start being compensated.
In order to try to rebalance the debate, the French legislator adopted a law the object of which is to promote the compensation of victims of road accidents, whatever their nationality (French or foreign), since the accident occurs in France.
The law of July 5, 1985, known as the Badinter law, established three main principles, henceforth governing traffic accident litigation.
1. Responsibility is based on involvement
Any vehicle involved in an accident is presumed responsible for the damage caused to others. And this even without any impact with a vehicle.
2. Special protection conferred on certain victims
In this regard, it should be noted that the French legislator refused to retain the principle of “no fault” (compensation for all victims, regardless of faults committed), which is current in some foreign countries.
3. Obligations payable by the insurers of the vehicles involved in the accident:
- Establish a relationship with the victim or his family
- Set up medical expertise (unless the insurer considers that it does not have to compensate the victim)
- Make an offer of compensation within a certain period, or failing that, explain why an offer will not be made
The system created by the Badinter law has obviously favored the situation of victims, but they are unfortunately still in an unequal situation compared to insurance companies.
The system has many limitations, particularly because of the non-truly binding nature of the obligations imposed on insurers.
Indeed, the only penalties incurred by defaulting insurers are in principle – and except in gross bad faith – having to pay interest at double the legal rate on the compensation finally awarded by a Court.
This sanction is not very dissuasive in itself. It is therefore advisable to be reactive and proactive in the processing of requested files.
The Badinter law therefore shows its limits in practice quite quickly, and the victim will benefit from vigorously asserting their rights in order to obtain their full right to compensation, and to obtain just and full reparation.
Pedestrian, cyclist and passenger victim: protected victims
The so-called “non-conductive” victims have the status of protected victim.
This is particularly the case for pedestrians, cyclists (in a bicycle accident) or even transported passengers.
The victim will have the right to be fully compensated for his bodily injury suffered in a traffic accident involving a land motor vehicle. Unless the opposing insurer can demonstrate that it committed inexcusable fault which was the sole cause of the accident.
The Badinter law also grants even greater protection to victims under the age of 16 and over 75. As well as those who already had a partial permanent disability rate of over 80% before the accident.
Driver victim: your
rights
The other victims,the drivers of vehicles injured in the accident,
may have their right to compensation reduced or excluded due to misconduct.
It should be specified here that it is up to the insurer, who is in principle obliged to compensate, to provide proof of the fault of the driving victim.
Likewise, the insurer who intends to see reduced or excluded his obligation to indemnify must prove that this fault may have been linked to the occurrence of the accident and the damage.
For example, driving without insurance will very generally not be related to the occurrence of the accident. The same goes for the failure to wear safety equipment (protective helmet for the motorcyclist, seat belt for the motorist).
Determining the right to compensation of a victim driver is a very important issue, and the quality of the argument developed is crucial. The first form of proof available to the parties will be the accident report.
This accident report is systematically communicated to the insurers of the vehicles involved. The victim can access it through their lawyer or directly.
Vigilance is, however, required in the analysis that will be made of this document, the conclusions of the police or gendarmes should not be imposed ipso facto on either the parties or the judge.
In order to contradict the conclusions of the accident report, the victim or the insurer may have recourse to any means of proof admitted in civil proceedings (witness statements, written documents, photographs, bailiff’s reports, etc.).
Among these means of proof, expertise in accidentology constitutes a tool that may prove useful in certain situations. The interest for the victim to resort to this type of analysis may be to contradict a reconstruction attempted by the insurer to prove the misconduct.
It should be remembered that the burden of proof lies with the insurer, who is in principle obliged to compensate the victim, and that therefore, doubt about the circumstances of the accident is in favor of the victim.
What recourse?
When the insurer, required in principle to compensate the damage refuses - alleging a fault on the part of the victim - or does not intend to fully compensate the damage suffered, the victim has only one recourse: to institute legal proceedings.
This action will be brought before the Judicial Court, with the obligation for the litigant to be represented by a lawyer. Our law firm specializing in traffic accidents located in Marseille can represent you before the Courts of Marseille, Aix-en-Provence, Tarascon, Toulon, Digne-les-Bains, Draguignan, Grasse, Nice (jurisdiction of the Court Aix-en-Provence appeal).
We are also able to defend your interests elsewhere in France (in particular Montpellier, Gap, Privas, Nîmes, Avignon, Carpentras, Lyon, Grenoble, Valence, Paris).
The Court will render a judgment which will have for vocation, on the one hand, to determine the responsibilities (or to affirm the right to compensation), and on the other hand to assess the damages suffered by the victim, then ordering the party responsible to pay the corresponding sums.
The judgment rendered by one of these Courts may in all cases be the subject of an appeal before the Court of Appeal.
What compensation?
The Badinter law refused to ``scale down`` or cap the compensation available to road accident victims. These victims are therefore entitled to demand fair and full reparation for the damage suffered.
Bodily injury being sometimes difficult to apprehend, the Courts – and the practitioners in the matter – use several technical tools in order to better define its contours, and to evaluate it as accurately as possible.
None of these tools has normative value, and judges should be frequently reminded that compensation benchmarks, for example, should not deprive them of the need to take into account the specificities of each victim, and each damage.
The fact remains that the matter of compensation for bodily injury has adopted a standardized language, embodied in what is commonly referred to as the Dintilhac report.
Who compensates?
In principle, the driver of the vehicle involved in the accident is obliged to compensate the damage caused to others. But in practice, it will generally be the insurer of that vehicle to bear the financial burden of this compensation.
In order to guarantee effective access to compensation for all victims injured in a traffic accident, the legislator has imposed an obligation of insurance for the risk of civil liability (known as “third party” insurance).
This ensures that an injured victim will have his damage repaired by a legal person – the insurer – with considerably greater solvency than that of the vast majority of natural persons.
When the vehicle involved in the accident is in default of insurance, the Compulsory Insurance Guarantee Fund (FGAO) will compensate the victim.
Compensation from the Guarantee Fund will be done under the same conditions and on the same basis as that which would be provided by a private insurer, except for a few nuances on the charging of indemnity benefits paid elsewhere by third-party payers.
Accidents occurring abroad: compensation possible
In the event of a traffic accident abroad, the victim can have independent recourse against the Guarantee Fund.
And that, in addition to the right of action against the person responsible directly or his insurer.
The conditions for opening this remedy are expressly provided for by law, and the situation may be different depending on whether the accident took place in a European country or not.
Note that the Badinter law is applicable to accidents occurring anywhere in France, including in the French overseas departments and territories.