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Uninsured Automobile and Unidentified Automobile Coverage Regulations

made under

Section 139 of the

Insurance Act

R.S.N.S. 1989, c. 231

O.I.C. 96-376 (May 22, 1996), N.S. Reg. 94/96

1 These regulations may be cited as the Uninsured Automobile and Unidentified

Automobile Coverage Regulations.

2 In these regulations

(1) "Act" means the Insurance Act, R.S.N.S. 1989, c. 231;

(2) "insured automobile" means the automobile as defined or described under the

contract;

(3) "person insured under the contract" means,

(

a) in respect of a claim for damage to the insured automobile, the owner of

the automobile,

(

b) in respect of a claim for damage to the contents of the insured

automobile, the owner of the contents, and

(

c) in respect of a claim for bodily injuries or death,

(

i) any person while driving, being carried in or upon or entering or

getting on to or alighting from the insured automobile,

(ii) the insured named in the contract and, if residing in the same

dwelling premises as the insured named in the contract, the

insured's spouse and any dependent relative,

(

A) while driving, being carried in or upon or entering or getting

on to or alighting from an uninsured automobile, or

(

B) who is struck by an uninsured or unidentified automobile, but

does not include a person struck while driving, being carried

in or upon or entering or getting on to or alighting from

railway rolling stock that runs on rails, and

(iii) if the insured named in the contract is a corporation,

unincorporated association or partnership, any director, officer,

employee or partner of the insured named in the contract, for

whose regular use the insured automobile is furnished and, if

residing in the same dwelling place, the spouse of such director,

officer, employee or partner, and any dependent relative,

(

A) while driving, being carried in or upon or entering or getting

on to or alighting from an uninsured automobile, or

(

B) who is struck by an uninsured or unidentified automobile, but

does not include a person struck while driving, being carried

in or upon or entering or getting on to or alighting from

railway rolling stock that runs on rails,

if such director, officer, employee or partner or the spouse of such

director, officer, employee or partner, or any dependent relative, is

not the owner of an automobile insured under a contract;

(4) "unidentified automobile" means an automobile with respect to which the

identity of either the owner or driver cannot be ascertained;

(5) "uninsured automobile" means an automobile with respect to which neither

the owner nor driver of it has applicable and collectible bodily injury liability

and property damage liability insurance for its ownership, use or operation,

but does not include an automobile owned by or registered in the name of the

insured or the insured's spouse.

Uninsured Automobile and Unidentified Automobile Coverage

(1) The insurer shall pay all sums that

(

a) a person insured under the contract is legally entitled to recover from the

owner or driver of an uninsured automobile or unidentified automobile

as damages for bodily injuries resulting from an accident involving an

automobile;

(

b) a person is legally entitled to recover from the owner or driver of an

uninsured automobile or unidentified automobile as damages for bodily

injury to or the death of a person insured under the contract resulting

from an accident involving an automobile; and

(

c) a person insured under the contract is legally entitled to recover from the

identified owner or driver of an uninsured automobile as damages for

accidental damage to the insured automobile or its contents or to both

the insured automobile and its contents, resulting from an accident

involving an automobile.

(2) A dependent relative referred to in the definition of "person insured under the

contract" in subsection 2(3) of these regulations

(

a) who is the owner of an automobile insured under a contract; or

(

b) who sustains bodily injuries or dies as the result of an accident while

driving, being carried in or upon or entering or getting on to or

alighting from the dependent relative's uninsured automobile,

shall be deemed not to be a dependent relative for the purposes of these

regulations.

Limits and Exclusions

(1) The insurer is not liable under subsection 3(1) of these regulations

(

a) in any event, to pay in respect of any one accident a total amount in

excess of the minimum limit for a contract evidenced by a motor

vehicle liability policy established under subsection 125(1) of the Act;

(

b) where an accident occurs in a jurisdiction other than Nova Scotia, to pay

in respect of the accident a total amount in excess of

(

i) the minimum limit for motor vehicle liability insurance coverage

in the other jurisdiction, or

(ii) the minimum limit referred to in clause (a),

whichever is less, regardless of the number of persons sustaining bodily

injury or dying or the amount of damages for accidental damage to the

insured automobile or its contents or both the insured automobile and its

contents;

(

c) to make any payment to a claimant who claims damages resulting from

an accident that occurred in a jurisdiction in which the claimant may

make a valid claim for payment of such damages from an unsatisfied

judgment fund or similar fund;

(

d) to make any payment to a claimant who is legally entitled to recover a

sum of money under the third party liability

section of any motor

vehicle liability policy;

(

e) to make any payment to a claimant who would otherwise be legally

entitled to recover a sum of money under any contract of insurance as a

result of an accident, other than money payable on death, that exceeds

the sum that the person is legally entitled to recover under subsection

3(1) of these regulations;

(

f) subject to clauses (a), (

b) and (e), to pay a claimant with respect to any

one accident a sum in excess of the difference between the sum that the

claimant is legally entitled to recover as damages from the owner or

driver of the automobile and the sum that the claimant is otherwise

legally entitled to recover under any valid contract of insurance, other

than money payable on death, as a result of the accident;

(

g) to pay a claimant the first two hundred and fifty dollars in respect of any

damages for accidental damage to the insured automobile or its contents

or to both the insured automobile and its contents, resulting from any

one accident; and

(

h) to make any payment respecting bodily injury, death or damage caused

directly or indirectly by radioactive material.

(2) Where, by reason of any one accident, liability results from bodily injury or

death and from damage to the insured automobile or its contents or to both

the insured automobile and its contents,

(

a) claims arising out of bodily injury or death have priority to the extent of

ninety-five per cent of the total amount legally payable under the

contract over claims arising out of damage to the insured automobile or

its contents or to both the insured automobile and its contents; and

(

b) claims arising out of damage to the insured automobile or its contents or

to both the insured automobile and its contents have priority to the

extent of five per cent of the total amount legally payable under the

contract over claims arising out of bodily injury or death.

Accidents involving unidentified automobiles

5 Where bodily injury to or the death of a person insured under the contract results

from an accident involving an unidentified automobile, the claimant or a person

acting on behalf of the claimant shall

(

a) report the accident within twenty-four hours after the accident or as

soon after that period as practicable, to a peace officer, a judicial officer

or an administrator of motor vehicle laws;

(

b) deliver to the insurer within thirty days after the accident or as soon

after that period as practicable, a written notice stating that the claimant

has a cause of action arising out of the accident for damages against a

person whose identity cannot be ascertained and setting out the facts in

support of the cause of action; and

(

c) at the request of the insurer, make available for inspection by the

insurer, where practicable, any automobile involved in the accident in

which the person insured under the contract was an occupant at the time

of the accident.

Determination of legal liability and amount of damages

(1) Issues as to whether or not a claimant is legally entitled to recover damages

and as to the amount of such damages shall be determined

(

a) by written agreement between the claimant and the insurer;

(

b) at the request of the claimant and with the consent of the insurer, by

arbitration by

(

i) one person, if the parties are able to agree on such person, or

(ii) where the parties are unable to agree on one person, three persons,

one of whom is chosen by the claimant, one of whom is chosen by

the insurer and one of whom is selected by the two persons so

chosen; or

(

c) subject to subsection (3), by the Supreme Court of Nova Scotia in an

action brought against the insurer by the claimant.

(2) The Arbitration Act applies to an arbitration under clause (1)(b).

(3) An insurer may, in its defence of an action referred to in clause (1)(c), contest

the issue of

(

a) the legal entitlement of the claimant to recover damages; or

(

b) the amount of damages payable,

only if such issue has not already been determined in a contested action in the

Supreme Court of Nova Scotia.

Notice of Proof of Claim

(1) A person claiming damages for bodily injury to or the death of a person

resulting from an accident involving an uninsured automobile or unidentified

automobile or a person acting on behalf of the claimant shall

(

a) within thirty days after the date of the accident or as soon after that

period as practicable, give written notice of the claim to the insurer by

delivering it personally or by sending it by registered mail to the chief

agent or head office of the insurer in Nova Scotia;

(

b) within ninety days after the date of the accident or as soon after that

period as practicable, deliver to the insurer as fully detailed a proof of

claim as is reasonably possible in the circumstances respecting the

events surrounding the accident and the damages resulting from it;

(

c) provide the insurer, at the insurer's request, with the certificate of a

medical practitioner legally qualified to practice medicine, describing

the cause and nature of the bodily injury or death to which the claim

relates and the duration of any disability resulting from the accident; and

(

d) provide the insurer with details of any policies of insurance, other than

life insurance, to which the claimant may have recourse.

(2) Statutory condition 4 of

Schedule A to

Part VI of the Act applies with the

necessary modifications where a claimant claims damages for accidental

damage to an insured automobile or its contents or to both an insured

automobile and its contents.

Notice of Legal Proceeding

(1) A claimant who is a person insured under the contract or is a person claiming

damages for bodily injury to or the death of a person insured under the

contract and who commences an action or other legal proceeding seeking

damages against another person owning or operating an automobile involved

in an accident shall immediately deliver a copy of the notice of action or other

originating process to the chief agent or head office of the insurer in Nova

Scotia by delivering it personally or by sending it by registered mail.

(2) Subject to subsection (3), if a claimant referred to in subsection (1) obtains a

judgment against the other person referred to in subsection (1) and is unable

to recover all or a portion of the sum awarded to the claimant in the

judgment, the insurer shall, at the claimant's request, pay to the claimant the

sum or portion of the sum remaining due.

(3) Before making payment under subsection (2), the insurer may require the

claimant to assign the claimant's judgment to the insurer and the insurer shall

account to the claimant for any recovery it makes under the judgment of a

sum in excess of the total of the sum paid to the claimant, after deducting the

insurer's costs.

Physical or mental examinations and autopsies

(1) The insurer has the right and the claimant shall afford the insurer an

opportunity

(

a) to conduct a physical or mental examination of any person insured

under the contract to whom the claimant's claim relates at the time and

so often as the insurer reasonably requires and while the claim is

pending; and

(

b) where a claim relates to the death of a person insured under the

contract, to initiate an autopsy at the insurer's expense subject to the law

relating to autopsies.

(2) The insurer shall provide the claimant, at the claimant's request, with a copy

of any medical, psychological or autopsy report relating to an examination or

autopsy under subsection (1).

Limitations

(1) No person shall commence an action to recover the amount of a claim

provided for under the contract and under subsection 139(2) of the Act

unless these regulations have been complied with.

(2) Every action or other legal proceeding against an insurer for the recovery of

an amount of damages shall be commenced within two years after the date on

which the cause of action against the insurer arose and not afterward.

11 A claimant who is entitled to claim under more than one contract providing

insurance of the type provided for under subsection 139(2) of the Act may not

recover an amount exceeding the amount which the claimant would be entitled to

receive if the claimant were entitled to recover under only one of the contracts.

Application of general provisions

12 Insofar as applicable, the general provisions,

definitions and exclusions and the

statutory conditions of the standard automobile policy approved by the

Superintendent apply with the necessary modifications to these regulations.

13 The terms, conditions, provisions, exclusions and limits set out in these regulations

apply to payments made under subsection 139(2) of the Act and shall be included

in every motor vehicle liability policy.

14 The terms, conditions, provisions, exclusions and limits set out in these regulations

shall be deemed to be included in any motor vehicle liability policy made or

renewed on or after July 1, 1996 and in any motor vehicle liability policy that is

subsisting on July 1, 1996.

15 A certificate of the Facility Association under subsection 139B(4) of the Act shall

be in Form 1.

Form 1 - Certificate of Facility Association

(Insurance Act, s. 139B(4))

I, _________________________________________________________ of

(name)

____________________________________________________________

(address)

HEREBY CERTIFY that the Facility Association has paid out the amount of

_____________________ to __________________________________ (name)

of _____________________________________________________ (address)

in respect of damages arising out of an automobile accident.

The following person(

s) were given notice of the application for payment by the above-named person and are the person(

s) against whom the Facility Association seeks

judgment under subsection 139B(2) of the Insurance Act: (Set out name(

s) and

address(es) of person(s).)

Dated at __________________ the _____ day of _______________, 19_____

___________________________

(witness)

______________________________

(signature)

for the Facility Association