A driver whose luxury BMW crashed into a tree after being hit by another vehicle has won a claims dispute with his insurer.

The 2021 BMW M8 Coupe, insured for an agreed value of $275,236, was determined to be a total loss after the incident on April 26 last year.

Allianz declined the claim, relying on forensic investigations from two of its consultants that found the driver was “aggressively speeding” just before the crash. 

The consultants said the car was travelling at 165km/h five seconds before the crash and at 76km/h when it was hit by the other vehicle. The speed limit on the road was 60km/h. 

The insurer said the consultants agreed the complainant’s excessive speed was “a contributory factor, if not the main factor in this incident”.  

Allianz said the circumstances of the loss indicated it was not an accident and was due to the complainant’s “deliberate and reckless driving at excessive speed”. 

It also argued that if it was assessed as an accident, the policy held exclusions that allowed it to limit its cover due to a “failure to take reasonable steps to keep the car safe and prevent loss”. 

The complainant challenged the insurer’s interpretation of data relating to the impact distance and provided video footage that he said showed the other driver – rather than his speed – was the cause of the crash.  

In its dispute ruling, the Australian Financial Complaints Authority says the video shows the complainant’s speed during the first impact was not a contributing factor.  

It says the other driver approached the claimant “at a higher speed” and swerved left and right before hitting the insured’s vehicle, causing him to lose control. 

The authority acknowledges the claimant was travelling above the speed limit but agrees the speeding alone was “not sufficient of itself to establish that he acted deliberately or recklessly”.  

It says when assessing a claim an insurer has denied based on deliberate and reckless conduct, the authority considers a person’s awareness of risk and whether they “deliberately courted the danger” with their actions.

“I accept the forensic data supports the complainant had been travelling at excessive speed some time before the accident, but it also shows he had decelerated from high speed prior to approaching the roundabout and subsequent impact by the [other] car,” the authority's adjudicator said. 

“This is not consistent with driving recklessly and without regard for consequences. Moreover, it does not discount the complainant’s version of events of accelerating prior to the collision to avoid the [other] car behind.”  

The authority says there is “an absence of any persuasive information” to show the damage would have occurred if the other car had not hit the complainant.  

It says the claimant is entitled to settle the claim either by having the agreed value paid out or being provided with a replacement model. 

However, it says it would be fairer to provide a 2024 model of the BMW due to the insurer’s delays and incorrect decision, should the claimant want a replacement.  

The decision also requires the insurer to pay $2500 for non-financial losses due to the claim’s delay and contribute $5000 towards the man’s legal expenses.  

Click here for the ruling.

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