Fourth

Session, 48th General Assembly

Elizabeth II, 2019

BILL 3

AN ACT TO AMEND THE AUTOMOBILE

INSURANCE ACT

Received

and Read the First Time ................................................................

Second

Reading ............................................................................................

Committee .....................................................................................................

Third

Reading ...............................................................................................

Royal

Assent .................................................................................................

HONOURABLE SHERRY

GAMBIN-WALSH

Minister of Service

Newfoundland and Labrador

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Automobile Insurance Act to

add a definition of

"accident benefits";

require that an insurer notify

the Registrar of Motor Vehicles of the cancellation or expiration of a policy

issued by the insurer;

require a person who intends to

commence an action for loss or damage from bodily injury or death arising

directly or indirectly from the use or operation of an automobile to provide

notice to the person against whom the action will be commenced and to satisfy

other requirements before commencing the action;

provide that damages to which a

plaintiff is entitled in an action for loss or damage from bodily injury or death

arising directly or indirectly from the use or operation of an automobile be

reduced by the accident benefit payments received by the plaintiff or to which

the plaintiff is entitled;

add direct compensation for

property damage coverage which would allow a driver involved in an accident who

is not at fault to seek reimbursement for damages to his or her automobile

directly from his or her own insurer rather than from the insurer of the driver

who was at fault;

allow a person who has accident

benefits and who sustained a type of injury prescribed in the regulations to

elect to be treated in accordance with the diagnostic and treatment protocols

prescribed in the regulations;

prohibit the owner or driver of

an uninsured automobile from applying to the Facility Association for payment

of damages for injuries arising out of the operation, care or control of an

automobile;

allow the Lieutenant-Governor

in Council to require rate reductions in the case of automobiles equipped with

winter tires;

allow the Lieutenant-Governor

in Council to require rate reductions in the case of automobiles equipped with

technology that monitors vehicle usage and driver behaviour;

allow the Lieutenant-Governor

in Council to prescribe the time period in which an insurer is required to file

its rates with the Public Utilities Board;

allow the Lieutenant-Governor

in Council to exempt an insurer from the requirement to file its rates with the

Public Utilities Board;

require that the Public

Utilities Board publish the information prescribed in the regulations respecting

decisions or orders of the Public Utilities Board in the manner and time period

prescribed by the regulations; and

require that the minister

consider every 5 years whether a review of the Act, the regulations or other

matters related to automobile insurance is necessary.

A BILL

AN ACT TO AMEND THE AUTOMOBILE INSURANCE

ACT

Analysis

S.2 Amdt.

Definitions

S.6.01 Added

Duty to notify Registrar of Motor Vehicles

3. S.25.1 Added

Notice and disclosure before action

S.26.6 Added

Damages

reduced by accident benefits payments

S.32.1 Added

Direct

compensation for property damage

S.34.1 Added

Diagnostic and treatment protocols

S.45.1 Amdt.

Application

S.49 Amdt.

Insurer to file rates

S.55.1 Added

Publication

S.60 Amdt.

Regulations

S.64 Added

Review

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

RSNL1990 cA-22

as amended

1. Subsection 2(1) of the Automobile Insurance Act is amended by renumbering paragraph (

a) as

paragraph (a.1), renumbering paragraph (a.1) as paragraph (a.2) and adding

immediately before paragraph (a.1) the following:

(a) "accident benefits" means

Section B

Accident Benefits as set out in S.P.F. No. 1 Standard Automobile Policy;

2. The Act is amended by adding immediately after

section 6 the following:

Duty to notify

Registrar of Motor Vehicles

6.01

(1) An

insurer shall notify the Registrar of Motor Vehicles of the cancellation or

expiration of a policy issued by the insurer for the type or use of vehicle

prescribed in the regulations.

(2) A notice required under subsection (1) shall

be provided in writing and in the time period prescribed in the regulations.

3. The Act is amended by adding immediately after

section 25 the following:

Notice and disclosure

before action

25.1

(1) Where

a person intends to commence an action for loss or damage from bodily injury or

death arising directly or indirectly from the use or operation of an automobile,

the person shall

(

a) serve written notice of the intention to

commence an action on the insured within 120 days after the accident;

(

b) provide the insurer with the information and

documentation prescribed in the regulations within the time period prescribed

in the regulations;

(

c) apply for accident benefits;

(

d) provide the insurer with a statutory

declaration describing the circumstances surrounding the accident and the nature

of the claim being made, where requested by the insurer;

(

e) participate in the case management process

established in the regulations;

(

f) undergo an examination by classes of persons

prescribed in the regulations, where requested by the insurer and at the insurer's

expense; and

(

g) provide evidence of his or her identity, where

requested by the insurer.

(2) Notwithstanding subsection (1), a person

referred to in subsection (1) may apply to the Supreme Court for an extension

of the notice period referred to in paragraph (1)(a).

(3) A notice under paragraph (1)(

a) shall advise

the insured of his or her duty under

section 29 to give written notice to his

or her insurer within 5 days after service of the notice.

(4) Paragraph (1)(

c) only applies where the person

referred to in subsection (1) has access to accident benefits.

(5) An examination under paragraph (1)(

f) shall

not be unnecessarily repetitious and shall not involve a procedure that is

unreasonable or dangerous.

(6) A person examined under paragraph (1)(

f) shall

answer the questions of the examiner relevant to the examination.

(7) Where a person who performs an examination

under paragraph (1)(

f) provides a report to the insurer, the insurer shall ensure

that the person referred to in subsection (1) receives a copy of the report

within 60 days after the insurer receives the report.

(8) In an action for loss or damage from bodily

injury or death arising directly or indirectly from the use or operation of an

automobile, pre-judgment interest shall not be awarded under

section 3 of the Judgment Interest Act for any period of

time before the notice under paragraph (1)(

a) is served.

(9) Where a person contravenes subsection (1), the

court shall consider the contravention in awarding costs.

(10) In this section, "insurer" means the

insurer of an insured against whom a person referred to in subsection

(1) intends to commence an action.

(11) This

section applies only in relation to loss

or damage sustained on or after the date this

section comes into force.

4. The Act is amended by adding immediately after

section 26.5 the following:

Damages reduced

by accident benefits payments

26.6

(1) In an action for loss or damage from bodily injury or death arising directly or

indirectly from the use or operation of an automobile, the damages to which a plaintiff

is entitled shall be reduced by the accident benefit payments

(

a) received by the plaintiff; and

(

b) to which the plaintiff remains entitled.

(2) This

section applies only in relation to loss

or damage sustained on or after the date this

section comes into force.

5. The Act is amended by adding immediately after

section 32 the following:

Direct compensation

for property damage

32.1

(1) This

section applies where

(

a) an automobile or its contents, or both,

suffers damage arising directly or indirectly from the use or operation in the

province of one or more automobiles;

(

b) the automobile that suffers the damage or in

respect of which the contents suffer damage is insured under a contract

evidenced by a motor vehicle liability policy issued by an insurer who is

licensed to undertake automobile insurance in the province or who has filed

with the superintendent, in the form approved by the superintendent, an

undertaking to be bound by this section; and

(

c) at least one other automobile involved in the

accident is insured under a contract evidenced by a motor vehicle liability

policy issued by an insurer who is licensed to undertake automobile insurance

in the province or who has filed with the superintendent, in the form approved

by the superintendent, an undertaking to be bound by this section.

(2) This

section

applies, with necessary modifications, in respect of an automobile the owner,

operator or lessee of which is exempt from the requirement to be insured

under the Highway Traffic Act , if the

corporation that is financially responsible for the damages resulting from the

accident involving the automobile files with the superintendent an undertaking

to be bound by this section.

(3) Where this

section applies, an insured is

entitled to recover for the damages to the insured's automobile and its

contents and for loss of use from the insured's insurer under the coverage

described in subsection 10(1) as though the insured were a third party.

(4) Recovery under subsection (3) shall be based on

the degree of fault of the insurer's insured as determined under the fault

determination rules prescribed in the regulations.

(5) An insured may commence an action against an

insurer where the insured is not satisfied

(

a) that the degree of fault established under the

fault determination rules accurately reflects the actual degree of fault; or

(

b) with a proposed settlement,

and the matters in issue shall be

determined in accordance with ordinary rules of law.

(6) Where this

section applies,

(

a) an insured has no right of action against any

person involved in the accident other than the insured's insurer for damages to

the insured's automobile or its contents or for loss of use;

(

b) an insured has no right of action against a

person under an agreement, other than a contract of automobile insurance, in

respect of damages to the insured's automobile or its contents or for loss of

use, except to the extent that the person is at fault or negligent in respect

of those damages or that loss; and

(

c) an insurer, except as permitted by the

regulations, has no right of indemnification from or subrogation against any

person for payments made to the insurer's insured under this section.

(7) Nothing in this

section precludes an insurer,

in a contract belonging to a class prescribed by the regulations, from agreeing

with an insured that, in the event that a claim is made by an insured under

this section, the insurer shall pay only

(

a) an agreed portion of the amount that the

insured would otherwise be entitled to recover; or

(

b) the amount that the insured would otherwise be

entitled to recover, reduced by a sum specified in the agreement.

(8) Subsection (7) does not apply unless, before

the insured enters into the contract referred to in that subsection, the

insurer offers to enter into another contract with the prospective insured that

does not contain the agreement referred to in that subsection but is identical

to the contract referred to in subsection (7) in all other respects except for

the amount of the premium.

(9) In the circumstances prescribed by regulation,

a contract belonging to a class prescribed by the regulations for the purpose

of subsection (7) shall provide that, in the event that a claim is made by the

insured under this section, the insurer shall pay only the amount that the

insured would otherwise be entitled to recover, reduced by the sum specified in

the contract.

(10) Subsection (8) does not apply to a contract

that contains a provision required by subsection (9).

(11) Where a contract contains an agreement

referred to in subsection (7) or a provision required by subsection (9), the

policy shall have the words "This policy contains a partial payment of

recovery clause for property damage" printed or stamped on its face in

conspicuous type.

(12) This

section does not affect an insured's

right to recover in respect of any physical damage coverage in respect of the

insured automobile.

(13) This

section does not apply

(

a) to damage to those contents of an automobile

that are being carried for compensation;

(

b) where both or all of the automobiles are owned

by the same person; or

(

c) to damage to an automobile owned by the

insured or to its contents where the damage is caused by the insured while

driving another automobile.

(14) This

section applies only in relation to loss

or damage sustained on or after the date this

section comes into force.

6. The Act is amended by adding immediately after

section 34 the following:

Diagnostic and

treatment protocols

34.1

(1) Where

a person referred to in paragraph 34(1)(

a) or (

b) sustains a type of injury

prescribed in the regulations, the person may elect to be diagnosed and treated

in accordance with diagnostic and treatment protocols prescribed in the

regulations.

(2) Where a person referred to in subsection

(1) elects to be diagnosed and treated in accordance with the diagnostic and treatment

protocols established in the regulations, subsections 34(4) and (5) shall not

apply in relation to the injuries diagnosed and treated in accordance with the

diagnostic and treatment protocols prescribed in the regulations.

(3) This

section applies only in relation to injuries

sustained on or after the date this

section comes into force.

Section 45.1 of the Act is amended by adding

immediately after subsection (3) the following:

(3.1) Notwithstanding another provision of this Act,

a person shall not apply to the Facility Association under

section 45.2 or 45.3

for payment of damages for injuries arising out of the operation, care or

control of an automobile in the province if at the time the injuries were

sustained the person was the owner or driver of the automobile and the

automobile was an uninsured automobile.

(3.2) Subsection (3.1) applies notwithstanding that

the person who sustained the injuries

(

a) may have a cause of action against an owner or

a driver of the automobile; and

(

b) may have had no applicable and collectable

insurance at the time of the accident in which the injuries were sustained.

(3.3) Subsection (3.1) does not apply where

(

a) at the time of the accident the owner of the

automobile failed to maintain insurance coverage for a period of 30 days or

less; and

(

b) the owner of the automobile had maintained

continuous insurance coverage for at least one year immediately before the

failure to maintain insurance coverage.

(3.4) This

section applies only in relation to

injuries sustained on or after the date this

section comes into force.

Section 49 of the Act is amended by adding

immediately after subsection (1) the following:

(1.1) The Lieutenant-Governor in Council may

prescribe by regulation the time period in which rates are required to be filed

with the board under subsection (1).

(1.2) Notwithstanding subsection (1), the

Lieutenant-Governor in Council may exempt by regulation an insurer from the

requirement to file the rates it proposes to charge for automobile insurance rates

with the board under subsection (1).

9. The Act is amended by adding immediately after

section 55 the following:

Publication

55.1 The

board shall publish the information prescribed in the regulations respecting

decisions or orders of the board in the manner and time period prescribed by

the regulations.

10. (1) Subsection 60(1) of the Act is amended by

adding immediately after paragraph (

b) the following:

(b.1) respecting rate reductions in the case of

automobiles equipped with winter tires;

(b.2) respecting rate reductions in the case of

automobiles equipped with technology that monitors vehicle usage and driver

behaviour;

(b.3) respecting the collection and use of

information obtained from the technology referred to in paragraph (b.2);

(2) Paragraph 60(1)(d.2) of the Act is repealed

and the following substituted:

(d.2) delegating to the board power to make rules or

policies respecting the manner of filing rates with the board;

(3) Subsection 60(1) of the Act is amended by

adding immediately after paragraph (d.4) the following:

(d.5) prescribing the time period in which insurers

are required to file rates with the board;

(d.6) exempting an insurer from the requirement to

file rates with the board;

(4) Subsection 60(1) of the Act is amended by

adding immediately after paragraph (

f) the following:

(f.1) prescribing the time period in which an

insurer is required to notify the Registrar of Motor Vehicles under

section 6.01;

(f.2) prescribing the type or use of vehicle for the

purpose of subsection 6.01(1);

(f.3) prescribing the information and documentation that

a person who intends to bring the action is required to provide to an insurer

under paragraph 25.1(1)(

b) and the time period in which that information and

documentation is to be provided to the insured's insurer;

(f.4) prescribing the classes of persons who may

conduct an examination for the purposes of paragraph 25.1(1)(f);

(f.5) establishing a case management process;

(f.6) prescribing rules for determining the degree

of fault in various situations for loss or damage arising directly or indirectly

from the use or operation of an automobile;

(f.7) respecting indemnification and subrogation

where

section 32.1 applies;

(f.8) prescribing the classes of contracts for the

purpose of subsection 32.1(7);

(f.9) prescribing the circumstances in which a

contract belonging to a class prescribed under paragraph (f.8) is required to

contain a provision described in subsection 32.1(9);

(f.10) prescribing the amount, or the minimum or

maximum amount of a reduction for the purposes of paragraph 32.1(7)(b);

(5) Subsection 60(1) of the Act is amended by

adding immediately after paragraph (g.2) the following:

(g.3) prescribing the types of injuries for the

purpose of subsection 34.1(1);

(g.4) establishing diagnostic and treatment protocols;

11. The Act is amended by adding immediately after

section 63 the following:

Review

(1) The minister shall, every 5 years, consider whether a review of this Act and

the regulations and other matters related to automobile insurance is necessary.

(2) Where the minister determines that a review is

necessary under subsection (1), the minister shall issue terms of reference to

the board to conduct the review.

Commencement

(1) Sections 1, 2, 3, 4, 5, 8 and 9, subsections

10(1) to (4) and

section 11 come into force on January 1, 2020.

(2) Section 7 comes into force on August 1, 2019.

(3) Section 6 and subsection 10(5) come into force

on a day to be proclaimed by the Lieutenant-Governor in Council.

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