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Determination
Case number | 12-00-1057310 |
Financial firm | Allianz Australia Insurance Limited |
Case number: 12-00-1057310 8 July 2024
The complainant held a comprehensive car insurance policy with the financial firm (the insurer). He lodged a claim for damage to his car.
The damage occurred when the complainant was approached by police. The complainant produced a gel gun and took cover behind the car. Police shot the complainant and the car. The complainant later pleaded guilty to the offence of ‘serious assault police officer whilst pretending / is armed with a weapon’.
The policy excludes cover for damage caused by the car ‘being subjected to a criminal act’. The insurer applied this exclusion to deny the claim.
The complainant says a gel gun is not a real weapon, and he did not point a weapon at the police. He says the insurer has no grounds to deny his claim.
Yes. The complainant committed a criminal act by threatening police with a gel gun. He took cover behind the car while committing the offence, and the car was damaged as a result. It is fair to say the damage arose from the car being subjected to a criminal act.
The complainant’s car was damaged. However, the damage was caused by something the policy excludes from cover. Therefore, it is fair for the insurer to deny the claim.
This determination is in favour of the insurer.
The insurer is entitled to deny the claim.
Yes. The complainant committed a criminal act by threatening police with a gel gun. He took cover behind the car while committing the offence, and the car was damaged as a result. It is fair to say the damage arose from the car being subjected to a criminal act.
A party making an insurance claim must establish they suffered a loss that is covered under the insurance policy. They must establish this on the balance of probabilities (i.e. that it is more likely than not).
If a claimable loss is established, the insurer must accept the claim, unless it can establish the application of a relevant exclusion. The insurer must establish the exclusion on the balance of probabilities.
The cover provided by the policy is set out in the product disclosure statement. Relevant policy terms are quoted in section 3.2 of this determination.
The policy is an ‘accidental damage’ policy, meaning it covers all accidental damage during the period of insurance, unless it is specifically excluded.
There is no dispute that the complainant’s car was accidentally damaged during the period of insurance. Therefore, the complainant has established a claimable loss. The insurer must accept the claim, unless it can establish the application of a relevant exclusion.
The policy excludes cover for any loss arising from the car ‘being subjected to a deliberate, intentional, malicious or criminal act’.
The insurer provided articles from Queensland Police News, a publication of the Queensland Government. According to these articles:
The complainant says:
The complainant says: ‘my military training kicked in and [I] took cover behind my car for safety reasons… it is not illegal to own a gel gun or have it out on my own property at no time did the police ask me to drop it…’
The complainant’s representative says: ‘[He] realised he was surrounded so he ran to the front of the car to cover for protection. [He] can't remember much but knows the police were shouting at him so he took the gel gun out and the police shot… him and the car.’
About two years after the incident, the complainant pleaded guilty to having committed the following offence on the date of the incident: ‘serious assault police officer whilst pretending / is armed with a weapon’. At the same time, he pleaded guilty to having committed eight domestic violence offences in the months before the incident.
The complainant says he did not point a weapon at the police. However, he also said: ‘it is not illegal to own a gel gun or have it out on my own property’. His representative said: ‘the police were shouting at him so he took the gel gun out’. These statements indicate he was making the gel gun visible to the police.
The complainant says a gel gun is a toy, and ‘certainly not a real weapon’. However, the offence the complainant pleaded guilty to includes ‘pretending’ to be armed with a weapon. The complainant does not deny that the gel gun looked like a weapon.
The complainant’s statements indicate he produced the gel gun in circumstances where this could most reasonably be interpreted as a threat to shoot at the police.
Having considered the information provided by both parties, I am satisfied, on the balance of probabilities, that the complainant committed a criminal offence by threatening police with a gel gun.
The complainant took cover behind the car while threatening police with a gel gun. He used the car in the commission of a criminal offence. The caused the car to be shot by police.
In the circumstances, it is fair to say the damage to the car arose from the car being subjected to a criminal act. Therefore, the insurer is entitled to apply the exclusion to deny the claim.
The complainant’s car was damaged. However, the damage was caused by something the policy excludes from cover. Therefore, it is fair for the insurer to deny the claim.
AFCA has determined this complaint based on what is fair in all the circumstances, having regard to:
The respective parties have completed a full exchange of the relevant information, and each party has had the opportunity to address any issues raised. I have reviewed and considered all of the information the parties have provided.
While the parties have raised a number of issues in their submissions, I have restricted this determination to the issues that are relevant to the outcome.
Comprehensive insurance (pages 19 – 24) |
Accidental loss of or damage to your vehicle We will cover you for accidental loss of (including theft) or any other type of accidental damage that happens to your vehicle during the period of insurance, subject to the other terms of this section and the policy (including those relating to the limits and excess). |
When we will not pay your claim (pages 43 – 47) |
You are not covered and we will not pay any claim under the policy for loss, damage or liability or costs or expenses that is caused by arises from or is in any way connected with: |
Deliberate, intentional, malicious or criminal acts Your vehicle being subjected to a deliberate, intentional, malicious or criminal act (including theft, conversion or misappropriation) caused by or involving:
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