We are unsure about how to respond to a recent claim. While driving along a country road, the insured lost control of his car and ended up in a ditch. There was no immediate damage to the driver or the car, but our insured burned up his transmission while rocking the car from forward to reverse trying to get it out of the ditch.

The insured argued that the proximate cause of the burned-out transmission was the fact that he lost control and landed in the ditch. Thus, he argued that the damaged transmission should be covered under the policy's collision peril. Is the burned-out transmission a covered loss under the personal auto policy?

North Carolina Subscriber

Two things are wrong with the insured's argument. First, there is some question as to whether the car actually collided with anything. After all, there was no damage to the car when it landed in the ditch.

Assuming a collision, a question remains as to whether the collision was the proximate cause of the burned-out transmission.  In this case, it is easy to see that the damage to the transmission was not a natural result of colliding with the ditch. When the car came to rest in the ditch, the insured could have chosen to leave it there and call a tow truck. If he had done so, the damage to the transmission would have been avoided. His decision to rock the car caused the damage independently of any collision.

The next consideration is whether the transmission damage might be covered under the other than collision coverage of the personal auto policy. This covers any physical damage to the auto that is not defined as collision and that is not excluded.

An exclusion that might be thought to apply is the wear and tear and mechanical breakdown exclusion. This exclusion does not apply, however, because it is designed to exclude coverage for gradual damage to the auto that occurs under normal and expected conditions. It is well accepted that if the insured, while changing the oil in his car, forgets to replace the old oil and drives the car in that condition, there is coverage for the resulting "mechanical breakdown or failure" of the engine. Burning out a transmission by trying to rock a car out of a ditch is a similar unusual breakdown resulting from an insured's mistake.

The final consideration is whether this loss was "accidental," a requirement found in the physical damage insuring agreement of the personal auto policy. The policy is not designed to cover intentional damage to the automobile. While it cannot be denied that the insured purposely rocked the car back and forth, his intention was to get it out of the ditch, not to damage the car.

For these reasons, the insured may recover under the other than collision coverage of the personal auto policy.

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