Motor insurance

Black box towards portability. Discounts and legal proof still pending

The Competition Decree will make it easier for those who want to change companies, but it remains to be defined when black box data becomes binding on the judge

by Maurizio Hazan

10 September 2024

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The black box has been the great unfinished business of the Rc auto for years: in the absence of the implementing regulation provided for since Decree Law 1/2012 and then by articles 132-ter and 145-bis added in 2017 to the Insurance Code (Cap), it is not even known what exactly should be meant by black box. Now, in the Ddl Concorrenza 2024 (stamped by the Ragioneria generale dello Stato and sent to Parliament), an attempt is being made to regulate it in a transitional manner, above all to prevent it from becoming a tool for the forced loyalty of policyholders, given that the black box has become very widespread. The problem remains of the probative value of black box data in the event of an accident.

Rules pending, contracts in force

The bill regulates the portability of certain data recorded by the box (on mileage and types of journeys), to enable the insured to have the risk quoted by another company. And it stipulates that the owner, on expiry of the policy, can have the device uninstalled at no cost.

Decree Law no. 1/2012 - when there will be the implementing decrees establishing the technical and functional characteristics of the device - will require insurance companies to reward, with 'significant' tariff discounts, those who, in order to reduce accident risks, accept 'monitoring' that allows the objective reconstruction of possible accidents, the deterrence of dangerous driving behaviour and better control of the risk by companies (also for more correct pricing).

For now, however, in the absence of the 'statutory' black box, the rules are those of the contracts or pricing policies of each company.

The evidential value of data

A particularly sensitive issue that remains open is the probative value to be attributed today to the black box findings in ascertaining the dynamics of the accident. Article 145-bis of the Cap, when fully in force, will give them the value of full legal proof 'of the facts to which they refer, unless the party against whom they have been produced proves the failure or tampering of the said device'. Not so far: this was recently reiterated by the Supreme Court (Order No. 13725/2024) clarifying that - since the rule has remained unimplemented - it will not be possible "to attribute legal value to data collected by an instrument produced by a private individual for a private individual without it being subject to any form of control or to compliance with certain parameters" (in this regard, see also Court of Naples North, judgment of 28 August 2024).

The data recorded by the box - net of widespread perplexity and mistrust as to their technical reliability (think of the not always exact geolocation of the vehicles, in the absence of a signal) - therefore continue to be freely appreciated by the judge, as a circumstantial element in the context of the broader investigative picture gathered at trial.

This does not necessarily mean that the old 'analogue' methods typical of investigations with a predominantly testimonial matrix will always remain central in the reconstruction of claims. They are gradually giving way to other and more objective digital findings. Some of them are easily acquired by the parties' smartphones, as incidentally also noted by the Supreme Court (Order 28924/2022).

The 'coexistence' with the logger

Now there are also recordings made by more powerful instruments, such as the Edr (Event data recorders) introduced by EU regulation 2019/2144, which are mandatory (albeit only for analysis and research purposes) from 6 July 2022 for newly type-approved vehicles and from 7 July 2024 for all those registered for the first time. These devices differ from 'insurance' black boxes primarily because they are not fitted but are integral parts of the vehicle. Therefore they cannot be uninstalled and could guarantee more precise analyses, disregarding those based on common black boxes.

It will be seen what the orientation of jurisprudence on this issue will be.