Oops! Our crash, your problem
Tony Kinsey of Durban had had his brand-new SUV for just three weeks when, late last month, he sent it back to the dealership to have some minor cosmetic issues sorted out.
A driver employed by Hyundai Umhlanga collected the Tucson from his workplace but never made it back to the dealership. He lost control of the vehicle near the Umhlanga turn-off on the N2 after swerving to avoid hitting the car in front of him which had, he said, "suddenly slammed on brakes".
On his accident report, he wrote: "I pulled the steering wheel left but there was a broken down (car) in the yellow line. My vehicle hit the stationary vehicle then hit the barrier and flipped over the barrier, and rolled a few times to the bottom of the ditch."
He said he had not been driving faster than 120km/h prior to the incident.
The driver was hospitalised and later discharged, but the Tucson was a write-off.
The dealership told the owner the best they could do was pay his insurance excess.
"Unfortunately we are not able to cover the insurance on your vehicle [because] Associated Motor Holdings does not have insurable right on the vehicle and the driver was driving the above vehicle with your knowledge," said dealer principal Anthea Walter-Girout in an e-mail to Kinsey on January 30.
"She later explained to us that once a vehicle has left their stock list it is no longer insured by the dealership," Kinsey said.
After some initial reluctance, Kinsey's insurer agreed to settle the claim, but made it clear to him that his premiums would increase dramatically, and the settlement amount would not include the extras he had paid for, such as a tow bar, parking sensors and an upgraded alarm system.
Naturally, Kinsey wasn't at all happy. It didn't seem fair, as most people would agree.
With a few exceptions, this is how motor dealerships respond when they damage a customer's car while it is entrusted to their care for repairs or a service: "Sorry, we'll pay your excess."
But that is not consistent with the Consumer Protection Act, which states in Section 65 - "Supplier to hold and account for consumer's property" - that when a company has possession of property that is usually under the control of a consumer it must exercise the degree of "care, diligence and skill" that could "reasonably be expected of a person responsible for managing any property belonging to another person".
If the company fails to do so, it is liable for any loss that arises from that failure. It is very clear.
Whether or not the company can make a claim on its insurance policy is irrelevant. It must take responsibility.
Attorney Janusz Luterek, a Consumer Protection Act specialist, said if there was any recklessness involved in the driving of Kinsey's car the dealership would be liable.
"An experienced accident investigator would be able to ascertain, based on the driver's account and consideration of the accident scene, whether reasonable care had been taken of the vehicle," Luterek said.
I raised the issue with Gideon Jansen van Rensburg, Hyundai SA's operations director in KwaZulu-Natal, pointing out the provisions of the CPA and the fact that Kinsey would be significantly prejudiced if forced to claim from his insurer for the written-off Tucson.
Shortly thereafter, Kinsey got a very different e-mail from the dealer principal.
"I am happy to inform you that Hyundai Umhlanga will be substituting your Tucson," she began. "I am in the process of preparing your vehicle for delivery and fitting all the extras as per your previous vehicle."
His existing finance agreement will continue, with the new vehicle's details replacing those of the written-off one.
Excellent. Legalities aside, it was the right thing to do.
Over the years I've investigated many cases of cars being damaged - or stolen - while in the care of dealerships.
One that stands out was three years ago, when a wash-bay attendant, who didn't have a driver's licence, got into the driver's seat of a customer's car - an automatic - and, with the door still open, shot the car backwards, ramming a pillar, then roared forward and smashed into a wall.
The employee was injured as her head struck the windscreen and the car was extensively damaged.
That dealer principal also produced the "claim from your insurance" response, but later relented and took responsibility for the damage.
I am currently working on the case of a luxury SUV that was stolen from a glass fitment centre by a man who reportedly said he was a driver sent by the owner to collect the car.
The keys were handed to him without any ownership checks. The owner was told to claim from his insurer. Watch this space.