An accident with your commercial vehicle: now what?
The company car remains a popular means for employers to upgrade their employees' pay package. However, providing a company car does not always turn out to be a bed of roses. We regularly receive questions from employers and employees about who pays for the costs of the company car if the employee causes an accident, for example, if the insurance company does not intervene.
The time when the injury was caused, during or outside the performance of the employment contract, will determine the answer to this question.
An accident during the performance of the employment contract
If the accident occurs during the performance of the employment contract, in principle, the limitation of liability of Article 18 Labor Contracts Act (AOW) comes into play. This limitation means that the employer can only recover its damages from the employee if the damages were the result of fraud, gross misconduct, or repeated minor misconduct on the part of the employee. For example, driving under the influence of alcohol or narcotics could qualify as gross misconduct. Is there no fraud, serious fault or repeatedly occurring minor fault? Then the employer will foot the bill.
It is important to note, however, that the limitation of liability applies only to the employee's civil liability. In criminal law, the employee remains personally liable at all times for the accident he caused. Thus, the traffic fine for a speeding violation will always have to be paid by the employee. For such traffic fines, it is also irrelevant whether they were incurred during or outside the execution of the employment contract.
An accident outside the performance of the employment contract
The liability limitation of Article 18 AOW does not apply to accidents caused by the employee's company car outside the performance of the employment contract, such as during a trip with the family. In this case, the ordinary civil liability rules are applied (fault damage causation). The employee who caused the accident will have to pay the damages out of his or her own pocket.
An accident involving damage to a third party
The possibility exists that a third party is involved in the traffic accident. The question arises as to who should compensate the damages caused to the third party?
Did the accident happen during working hours? Then the employee can again invoke the limitation of liability of Article 18 AOW. This limitation comes into play not only in the employee-employer relationship but also in the employer-third party relationship.
If the accident occurred outside working hours, then the employee is personally liable. In practice, however, we see that victims will always turn to the employer since the employer cannot invoke a limitation of liability. On the basis of article 1384 of the Civil Code, the employer is always liable for the mistakes of his employees.
What if the roads part?
After the termination of the employment contract, the employee is obliged to return the company car at the first request of the employer. It is very important that at the time of the return a report is made on the condition of the car noting possible damage to the car. If this is not done, there is a risk that a discussion will arise afterwards about who was or was not liable for certain damage to the car.
Conclusion
The moral of this story is that employees should not be too quick to think that the employer will pay for the pot. Along the other hand, a diligent employer will want to avoid discussions by, among other things, making correct agreements both beforehand in a car policy and afterwards in a termination agreement.
Do you still have questions about the use of the company car or wish to introduce a car policy? Don't hesitate to contact us. We will be happy to help you!
Author: Mr. Maxim Korthoudt
November 20, 2020
