AI DamageA motor liability policy does not always protect the at-fault driver. If the driver was drunk, fled the scene or had no right to drive, the insurer pays the victim and then recovers that money from the driver. Separately, the victim's comprehensive (KASKO) insurer steps into the victim's shoes after paying and claims the money from the at-fault driver's insurer or the at-fault driver.
Recourse vs subrogation
| Mechanism | Who claims | From whom | Basis |
|---|---|---|---|
| Recourse under motor liability insurance | The at-fault driver's insurer or MTIBU | Its own at-fault client | Violations listed in the compulsory motor insurance law (see below) |
| Subrogation (KASKO) | The victim's comprehensive insurer | The at-fault driver's insurer; above the limit or without a policy, the at-fault driver | Article 993 of the Civil Code: the victim's claim passes to the insurer |
| MTIBU recourse | MTIBU after its payout | An at-fault driver without a policy | Compulsory motor insurance law |
When a motor liability insurer has a right of recourse
- The driver was under the influence of alcohol, drugs or other substances, or refused a test.
- The driver had no licence for that vehicle category.
- The driver left the scene of the accident.
- The accident was caused by a technical fault the driver knew about.
- The damage was caused intentionally or the car was used to commit a crime.
- The car was used in breach of the insurance contract.
The list is abridged; the exact wording is in Law No. 3720-IX and the insurance contract.
How subrogation after KASKO works
A victim with KASKO often gets the repair from their own insurer faster. After paying, the KASKO insurer turns to the at-fault driver's motor liability insurer. The Grand Chamber of the Supreme Court in case No. 755/18006/15-ц explained that the KASKO insurer can claim from the at-fault driver only the amount above the payout under the driver's liability policy, or where the insurer does not pay under the law. So a lawsuit against an insured driver for the full repair cost is a reason to check the calculation.
How a driver can defend themselves
- Check whether there really are grounds for recourse: the administrative offence ruling, the intoxication test report, the protocol.
- Compare the amount with the payout to the victim: recourse cannot exceed what the insurer actually paid.
- Check the repair calculation: extra parts, inflated labour hours, damage unrelated to the accident (see Expert reports after an accident).
- Check the deadlines: the limitation period for damage claims is 3 years; for recourse it runs from the moment of payment.
- Offer instalments: insurers often agree to a settlement.
What it means for the victim
Recourse is a dispute between the insurer and the at-fault driver and does not affect your payout: the insurer must pay you in any case. If the payout is not enough for the repair, you can claim the difference from the at-fault driver directly, see Gap between payout and repair.
Sources
- Law of Ukraine No. 3720-IX of 21.05.2024 on Compulsory Insurance of Civil Liability of Owners of Land Vehicles
- Civil Code of Ukraine, Articles 993, 1191, 1194, 257
- Resolution of the Grand Chamber of the Supreme Court of Ukraine of 04.07.2018, case No. 755/18006/15-ц