Insurance policy ambiguous clause

[Buckman]

Would you regard the following as an ambiguous clause in a caravan policy:

What is not covered;

Towing your caravan if Your caravan exceeds the manufacturers recommended kerb/towing weight

Copied direct from the policy. In essence this means that you cannot load anything into the caravan. There are a multitude of other clauses which are normal for any caravan policy. TBH I think they are refering to the towing vehicle, but got it wrong however in the event of a claim they could make it difficult.

Please be aware of this clause. Many vehicles can tow well in excess of their kerbweight i.e. Jeep can tow up to 3500kg legally. Other insurance companies may also have a similar clause so beware. Remember that insurance companies can imposed any terms that they want to include and it is up to the consumer to decide whether to agree to the terms or not.

 

[DaveA1]

Can't find it on mine.
Just an observation. The towing limit on my motor is 1600kg which is below the kerb weight. Would I be covered if I did tow at my kerb weight??

 

[otherclive]

Can't find it on mine.
Just an observation. The towing limit on my motor is 1600kg which is below the kerb weight. Would I be covered if I did tow at my kerb weight??

In short No you wouldn't be covered and you would be illegal too, and that's you car policy out of the window too if you had an accident and the mismatch were discovered. it is a stupidly defined clause which Ive never seen in any of my caravan policies.

 

[Dustydog]

A very poor wording and definitely ambiguous.
There‘s a legal term, “ The Contra Proferentum Rule” . The party who writes the wording of a contract ,which is ambiguous or unclear must find in favour of the other party. Here the Insurer will find it impossible to repudiate the claim on the basis of their wording imo.

 

[Raywood]

It is possibly badly worded and might fail if tested in court, but I would not risk it as it could just about get accepted. I am not convinced that Dusty is right in his conclusion, although the quote on the legal position is correct. I as without his it does look only half there.
Frankly it makes sense for drivers as exceeding the kerb weight or manufacturers limit is unwise. All sensible advice supports the idea that exceeding the kerb limit is potentially dangerous, as the car may not have the ability to control the caravan. We all know that caravans are far from ideal trailers with their large flat sides and vulnerability to side winds and passing large vehicles. Smaller trailers that weigh more may be safer and the towing limit is nothing to do with safety, exceeding the kerb weight there may not be as safety critical as say with folding caravans which do not have the same side exposure.
The towing limit is simply the cars ability to restart on a 12% hill and is simply a test of the strength of the driveline. Many models, particularly hybrids do have a towing limit below the kerb weight, but that is not to say it is dangerous to exceed this and some will have two weights quoted for two different incline levels. so which would you choose.
You also have the question of defining kerb weight with the legal definition being lower than the Towing Guide. The Towing Guide one is the one used when assessing the safety of an outfit and therefore the legal one might or might not be accepted.
The insurer also has to be fair to the customer who can refer a repudiation to the Ombudsman. My feeling is that he would probably accept a repudiation where there was a proof of a substantial exceeding of the kerb weight, which is clearly a breach of safety advice, but one based on the car manufacturers towing limit alone would fail as it would not be based on any sensible safety advice.
The insurer may also have another problem in showing the caravan exceeded either, in that after an accident where the caravan was seriously damaged proving the weight might be impossible. The insurer would have to show it was exceeding the limit, so unless this was obvious from the caravans unladen weight, they would only be able to say they believed it was overweight. but hat is not good enough.
I know the exceeding of kerb weight has been included in some car policies for some time now, but I am not aware of any cases coming before the Ombudsman or the courts, possibly because when it came to the crunch the insurer could not show the exclusion was breached.
If the clause is there do keep your weight within its requirements as even if you win your case against an insurer you will have weeks of delay and worry assuming, you win, and you might not.

 

[audiorob]

Maybe within the context of other exclusions it could be clearer as we ask if it refers to the caravan being over the stated maximum weight OR the caravan being over the tow vehicles maximum weight. The 'kerbweight/towing weight' description doesn't help but you might expect the term MTPLM or the like to be used if describing the caravan weight. Best advice would be to contact the caravan insurer and ask for the ambiguity to be removed and a new document be issued to all policy holders. I suspect most people don't even glance at the small print but you have done so and rightly questioned the intent!

 

[Jcloughie]

I would have read that as referring to the mtplm. Meaning you are not insured if the van is loaded to a greater mass than it is plated for.

John

 

[Dustydog]

Good script there Ray. Just shows how complex these issues can be. I would never advocate anyone exceeding recognised sensible loads nor take a risk ignoring policy conditions even ambiguous ones.
The answer is to ask the Insurer concerned to set out in writing exactly what they mean.

 

[ProfJohnL]

"Towing your caravan if Your caravan exceeds the manufacturers recommended kerb/towing weight "

I do agree the clause is not overtly clear, but having considered it it perhaps not as bad as it seems.

Firstly, as the policy clause relates to the car insurance, and therefore the reference relates to the tow vehicles kerb/towing weight.

Generally it is accepted that when terms are linked by a "/" such as "kerb/Towing weight" the differentiation is OR not AND.

What is a bit of a mystery is why they have included "kerb" as any vehicle that is type approved to tow will have a towed weight figure or it can be calculated from the GTW -GVW from the data plate.

The company does need to clarify the clause.

 

[Dustydog]

"Towing your caravan if Your caravan exceeds the manufacturers recommended kerb/towing weight "

I do agree the clause is not overtly clear, but having considered it it perhaps not as bad as it seems.

Firstly, as the policy clause relates to the car insurance, and therefore the reference relates to the tow vehicles kerb/towing weight.

Generally it is accepted that when terms are linked by a "/" such as "kerb/Towing weight" the differentiation is OR not AND.

What is a bit of a mystery is why they have included "kerb" as any vehicle that is type approved to tow will have a towed weight figure or it can be calculated from the GTW -GVW from the data plate.

The company does need to clarify the clause.

Prof . The OP said caravan policy not car insurance

 

[ProfJohnL]

Prof . The OP said caravan policy not car insurance

Opps

Nee to regroup and think again.....

 

[Buckman]

It is possibly badly worded and might fail if tested in court, but I would not risk it as it could just about get accepted. I am not convinced that Dusty is right in his conclusion, although the quote on the legal position is correct. I as without his it does look only half there.
Frankly it makes sense for drivers as exceeding the kerb weight or manufacturers limit is unwise. All sensible advice supports the idea that exceeding the kerb limit is potentially dangerous, as the car may not have the ability to control the caravan. We all know that caravans are far from ideal trailers with their large flat sides and vulnerability to side winds and passing large vehicles. Smaller trailers that weigh more may be safer and the towing limit is nothing to do with safety, exceeding the kerb weight there may not be as safety critical as say with folding caravans which do not have the same side exposure.

In case you missed it there is no reference to towing vehicle in that clause. They specifically state kerb weight of caravan.

 

[ProfJohnL]

I was just composing this answer when Buckman added a comment, where he says the clause "specifically state kerb weight of caravan. "

Firstly I have never seen an official reference to the "kerb weight of a trailer". So the fact the words Kerb and Towed weight are used seems very unlikely to refer to a trailer, but they do get used frequently in relation to tow vehicles.

For that reason the clause is unclear as what the reference to " the manufacturers recommended kerb/towing weight " actually refers. I suspect its referencing the tow vehicles "kerb/towing weight" But I could be wrong.

I did wonder why it referenced "kerb" but thinking about it some vehicles used for towing - particularly much older vehicles that pre date the type approval process, may not have a towed weight limit stated as part of their specifications. But vehicle with a type approval will have their towing capacity stated or calculable from the GTW - GVW from the data plate.

As Ray has pointed out its very unlikely the weight of a towed trailer that's been severely damaged in an accident could be accurately determined from the wreckage, so the clause would be unworkable in many instances, and that is where Audiorob's suggestion of including the MTPLM as part of the clause might make sense from the insurers perspective.

However that mean that trailers MTPLM's must not exceed the tow vehicles towed weight allowance, which is not actually the way the towing regulations specify it.

 

[Buckman]

I was just composing this answer when Buckman added a comment, where he says the clause "specifically state kerb weight of caravan. "

Firstly I have never seen an official reference to the "kerb weight of a trailer". So the fact the words Kerb and Towed weight are used seems very unlikely to refer to a trailer, but they do get used frequently in relation to tow vehicles.

For that reason the clause is unclear as what the reference to " the manufacturers recommended kerb/towing weight " actually refers. I suspect its referencing the tow vehicles "kerb/towing weight" But I could be wrong.

I did wonder why it referenced "kerb" but thinking about it some vehicles used for towing - particularly much older vehicles that pre date the type approval process, may not have a towed weight limit stated as part of their specifications. But vehicle with a type approval will have their towing capacity stated or calculable from the GTW - GVW from the data plate.

As Ray has pointed out its very unlikely the weight of a towed trailer that's been severely damaged in an accident could be accurately determined from the wreckage, so the clause would be unworkable in many instances, and that is where Audiorob's suggestion of including the MTPLM as part of the clause might make sense from the insurers perspective.

However that mean that trailers MTPLM's must not exceed the tow vehicles towed weight allowance, which is not actually the way the towing regulations specify it.

I also suspect that they meant the vehicle's kerb weight, but worded the clause incorrectly. The insurance company can specify any limit in their T&Cs and they do not have to comply with guidelines etc as it is up the consumer to read the T&Cs and make their own decision.
Many of us are guilty of not reading the T&Cs of contracts and only have ourselves to blame when things go pear shape.

 

[Dustydog]

In conclusion we all agree the clause is absolutely flawed and should be reworded for clarity .

 

[fj]

surely the insurers must define the terms kerb weight and towing weight in their policy documents if the wish to rely on them

 

[Niall_McIntosh]

surely the insurers must define the terms kerb weight and towing weight in their policy documents if the wish to rely on them

If there isn't a definition, then the words will have their ordinary everyday meaning.

 

[RogerL]

If there isn't a definition, then the words will have their ordinary everyday meaning.

But do they apply to the caravan/trailer or towing vehicle? In any case the terms are technical so don't have "everyday" meaning.

 

[Niall_McIntosh]

But do they apply to the caravan/trailer or towing vehicle? In any case the terms are technical so don't have "everyday" meaning.

In any claims scenario, the onus is on the insurer to show that they can rely on an exclusion within their policy to avoid paying a claim. The wording will have to be read in the context of the policy and, unless specific meanings have been applied to the words by means of a Definition, the words will take their usual "everyday" English language meaning. It doesn't matter that some might regard the terms as "technical" they will still have a specific intended meaning.

Ultimately, in the event of a dispute, the final arbiter of whether they can rely on the exclusion wording, will be the court. (The claimant can refer any claims repudiation to the Ombudsman and, if they are still unhappy with the outcome, then proceed to argue their case in court.)

It will be for the insurer to argue what they mean by the words "exceeds the manufacturers recommended kerb/towing weight " and the court will either agree or disagree with their interpretation, taking into consideration any alternative interpretation which might be more advantagious to the claimant (contra proferentem, as mentioned by DD earlier).

I agree with others that the wording is not well written, and it may be that the insurer is attempting to cover both the situation where the towing vehicle is not adequate to tow the caravan, and a situation where the caravan itself has been overloaded. I also agree that it might be difficult for the insurer to rely on the wording, but not impossible.

 

[RogerL]

In any claims scenario, the onus is on the insurer to show that they can rely on an exclusion within their policy to avoid paying a claim. The wording will have to be read in the context of the policy and, unless specific meanings have been applied to the words by means of a Definition, the words will take their usual "everyday" English language meaning. It doesn't matter that some might regard the terms as "technical" they will still have a specific intended meaning.

Ultimately, in the event of a dispute, the final arbiter of whether they can rely on the exclusion wording, will be the court. (The claimant can refer any claims repudiation to the Ombudsman and, if they are still unhappy with the outcome, then proceed to argue their case in court.)

It will be for the insurer to argue what they mean by the words "exceeds the manufacturers recommended kerb/towing weight " and the court will either agree or disagree with their interpretation, taking into consideration any alternative interpretation which might be more advantagious to the claimant (contra proferentem, as mentioned by DD earlier).

I agree with others that the wording is not well written, and it may be that the insurer is attempting to cover both the situation where the towing vehicle is not adequate to tow the caravan, and a situation where the caravan itself has been overloaded. I also agree that it might be difficult for the insurer to rely on the wording, but not impossible.

It's not just "not well written" - it's completely ambiguous as it doesn't define whether it means car's manufacturer or caravan's manufacturer.

 

[Buckman]

I agree with others that the wording is not well written, and it may be that the insurer is attempting to cover both the situation where the towing vehicle is not adequate to tow the caravan, and a situation where the caravan itself has been overloaded. I also agree that it might be difficult for the insurer to rely on the wording, but not impossible.

It specifically implies the caravan kerbweight so add battery and you are now over the manufacturere's kerb weight.

 

[otherclive]

It specifically implies the caravan kerbweight so add battery and you are now over the manufacturere's kerb weight.

There is no such thing as a caravan kerbweight. If this company is experienced in insuring caravans they would know that. I’d be suspicious as to whether they know what they are about. There seem to be two options open to you. One is to just live with the ambiguity. The second is to contact the insurer for clarification.

 

[Buckman]

There is no such thing as a caravan kerbweight. If this company is experienced in insuring caravans they would know that. I’d be suspicious as to whether they know what they are about. There seem to be two options open to you. One is to just live with the ambiguity. The second is to contact the insurer for clarification.

Luckily we are not insured with them. Myinsurance is with someone else. This was highlighted on a group where a few had chosen to insure their high end caravans with the cheapest insurance company for some strange reason. Never understood paying top dollar for a caravan and then skimping on necessities? Also is a well known caravan insurance company who offer the cheapest insurance.

 

[Raywood]

The initial post does refer to the caravan policy but that sentence does look to refer to the tow car What we do not know is if there is more elsewhere which might clarify it a bit. Clearly the term kerb weight is meant to refer to the tow car, but "towing weight" is not a common term with a legal definition and I think should be "towed weight" which is far clearer, I suspect that error would make that part of the clause ineffective. You can only be sure if a clause works or not if you test it in court so everything here has to be an opinion although in most cases a considered one.
As I said though, the towing limit where less than the towed weight, has no obvious danger problem as far as accidents are concerned, it is simply possibly going to damage your driveline, which is not the insurers problem.