Competence Disputes Relating to Liability of the Insurance Guarantee Fund and an Insurance Undertaking on the Background of Compulsory Motor Liability Insurance - Practical and Legislative Solutions
Authors: Cwalińska - Weychert Sława , Kaja Iwona 
Published: November 2019

The authors of this article, having analyzed the role of the Insurance Guarantee Fund in the compulsory insurance system, show the most significant differences in the liability of motor liability insurers and the IGF towards the injured. In their opinion, the identified differences in the liability principles and the differences in the interpretation of the applicable laws are the most frequent sources of competence disputes between insurance undertakings and the Fund, particularly about the competence of one of them in the claims settlement of victims of incidents involving unidentified perpetrators. On the one hand, these disputes are essentially held over formal issues, such as the existence or non-existence of insurance cover of the perpetrator and, on the other hand,
over substantive ones, namely the recognition of the liability of either the IGF or the insurer in the circumstances of the event. Owing to their complex nature these disputes are frequently long-lasting, which results in the victims waiting for an extremely long time for their compensation. The authors emphasize that in the European Union the above problem has already been identified and was mostly regulated by the Directive 2009/103/EC of the European Parliament and Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability. In Article 11 of the regulation it is stated that in the event of a dispute between the guarantee institution and the insurer, about determining who must compensate the victim, the Member States are required to designate one of those parties to be responsible in the first instance for paying the compensation to the victim without delay. The Insurance Guarantee Fund has repeatedly pointed to the negative effects of the lack of full implementation of this regulation to our national legislation. It consequently must have led to competence disputes and the need for conflict resolution in courts, at the expense of victims waiting long for being paid the compensation. Having recognized the importance of the above problems, the Polish legislator finally resolved this issue by the Act of 23 October 2018, amending the act on compulsory insurance, the Insurance Guarantee Fund and the Polish Motor Insurers’ Bureau in accordance with the directive. In the above amendment it has been indicated that in the event of a competence dispute the insurance undertaking is required to satisfy the justified claims, but at the same time the obligation has been imposed on the Fund to reimburse the paid compensation to the insurer, in the situation when the responsibility of the Fund to the victim of the accident was established. According to the authors, the entry into force of this regulation on 31 December 2018 should eliminate from the market the phenomenon of justified claims being not settled in due time.