Bill 16 — Fifth Session, 15Th Legislature, 15 Elizabeth Ii the Legislative Assembly of Alberta Bill 16 An Act To Amend the Alberta Insurance Act the Provincial Secretary (Legislature 15, Session 5)

L15 S5 1217

Alberta — Bills

1967 Bill 16 Fifth Session, 15th Legislature, 15 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 16

An Act to amend The Alberta Insurance Act THE PROVINCIAL SECRETARY First Reading ............................................................. . Second Reading ........................................................ . Third Reading Printed by L. S. Wall, Queen's Printer, Edmonton

BILL 16 1967

An Act to amend The Alberta Insurance Act (Assented to , 1967) HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Alberta, enacts as follows: 1. The Alberta Insurance Act is hereby amended.

Section 2 is amended (

a) by striking out clauses 5 and 6 and by substituting the following: 5. "automobile" includes a trolley bus and a self propelled vehicle, and the trailers, accessories and equipment of automobiles, but does not include rail way rolling stock that runs on rails, watercraft or aircraft; 6. "automobile insurance" means insurance, (

i) against liability arising out of, (

A) bodily injury to or the death of a person, or (

B) loss of or damage to property, caused by an autom·obile or the use or operation thereof, or (ii) against loss of or damage to an automobile and the loss of use thereof, and includes insurance otherwise coming within the class of accident insurance where the accident is caused by an automobile or the use or operation thereof, whether liability exists or not, if the con tract also includes insurance described in subclause (i) ; (

b) by adding the following clause after clause 42: 42a. '~motor vehicle liability policy" means a policy or part of a policy evidencing a contract in suring, (

i) the owner or driver of an automobile, or (ii) a person who is not the owner or driver thereof where the automobile is being used or operated by his employee or agent or any other person on his behalf,

Explanatory Note I. This Bill amends

chapter 159 of the Revised Statutes. 2. 5. This -combines -clause 5 of

section 2 and

section 278 (

a) of the Act to avoid unnecessary duplication. The definition is re quired in

section 2 as there are references in the Act prior to the sections of the specific Part. The only change, in effect, is the reference to trolley bus. 6 .. Here again the definition in

section 2 replaces two

definitions presently in the Act. Subclauses (

i) and (ii) except for loss of use in (ii) reproduce the present

definitions in clause ,6 of

section 2 and in

section 278 (

b) of the Act. 42a. This definition corresponds to

section 278 (

e) of the Act. This has been placed in

section 2 rather than in the Automobile In surance Part because in earlier sections of the Act reference is made to the phrase.

against liability arising out of bodily injury to or the death of a person or loss or damage to property caused by an autonlobile or the use or operation thereof; (

c) by adding the following clause after clause 45: 45a. "non-owner's policy" means a motor vehicle liability policy insuring a person solely in respect of the use or operation by him or on his behalf of an automobile that is not owned by him; (

d) by adding the following clause after clause 46 : 46a. "owner's policy" means a motor vehicle li ability policy insuring a person in respect of the ownership, use or operation .of an automobile owned by him and within the description or definition thereof in the policy and, if the contract so provides, in respect .of the use or operation of any other auto mobile;

Section 32 is repealed.

Section 33 is amended by striking out subsection (4) and by substituting the following:

(4) A licence to carryon automobile insurance in Alberta is subject to the following conditions: (

a) In any action in Alberta against the licensed in surer or its insured arising out of an automobile accident in Alberta, the insurer shall appear and shall not set up any defence to a claim under a contract made outside Alberta, including any de fence as to the limit or limits of liability under the contract, that might not be set up if the contract were evidenced by a motor vehicle liability policy issued in Alberta; (

b) In any action in another province or territory .of Canada against the licensed insurer, or its insured, arising out of an automobile accident in that prov vince or territory, the insurer shall appear and shall not set up any defence to a claim under a contract evidenced by a motor vehicle liability policy issued in Alberta, including any defence as to the limit or limits of liability under the contract, that might not be set up if the contract were evidenced by a motor vehicle liability policy issued in the other province or territory.

Section 187, subsection (2b) is amended by striking out the words "automobile insurance". 6. The following sections are added after

section 187: 187a.

(1) This

section applies to a contract, other than a contract of hail insurance, containing a condition, statu tory or otherwise, providing for an appraisal to determine specified matters in the event of a disagreement between the insured and the insurer. 2

45a. This definition ·corresponds to

section 278 (

c) of the Act. It has, however, been expanded to include all types of non-ownership coverage. 46a. This definition corresponds to

section 2,78 (

f) of the Act. 3. The subject matter of

section 32 is now covered in the definition of automobile insurance added to

section 2. 4. Corresponds to

section 33 (4) of the present Act. 5. The amendment: made here makes

section 187 (2a) applicable to automobile insurance.

Section 187a incorporates the procedure for appraisal in ~he substantive law, making it generally applicable rat~er than. ~avmg this procedure set out in full in the statutory or polIcy condItIons. 2

(2) The insured and the insurer shall each appoint an appraiser, and the two appraisers so appointed shall appoint an umpire.

(3) The appraisers shall determine the matters in dis agreement and, if they fail to agree, they shall submit their differences to the umpire, and the finding in writing of any two determines the matters.

(4) Each party to the appraisal shall pay the appraiser appointed by him and shall bear equally the expense of the appraisal and the umpire.

(5) Where, (

a) a party fails to appoint an appraiser within seven clear days after being served with written notice to do so, (

b) the appraisers fail to agree upon an umpire within 15 days after their appointment, or (

c) an appraiser or umpire refuses to act or is incapable of acting or dies, a judge of the district court of the district in which the appraisal is to be made may appoint an appraiser or umpire, as the case may be, upon the application of the insured or of the insurer. 187b.

Where there has been imperfect compliance with a statutory condition as to the proof of loss to be given by the insured or other matter or thing required to be done or omitted by the insured with respect to the loss and a con sequent forfeiture or avoidance of the insurance in whole or in part and the court considers it inequitable that the in surance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it considers just. 187 c. Insurance money is payable in Alberta in lawful money of Canada. 187d.

(1) No term or condition of a contract shall be deemed to be waived by the insurer in whole or in part unless the waiver is stated in writing and signed by a person authorized for that purpose by the insurer.

(2) Neither the insurer nor the inured shall be deemed to have waived any term or condition of a contract by any act relating to the appraisal of the mTIount of loss or to the delivery and completion of proofs or to the investiga tion or adjustment of any claim under the contract. 7. Sections 210a, 215 and 217a are repealed. 3

S'~ction 187b is of general application and will supplant present

sectIOn 287 which has not been included in the revision of

Part VII.

Section 187c replaces present

section 288 and is of general ap plication.

Section 187d will replace sedions 217a and 289 and Automobile Statutory Condition 8 and will be of general application. 7. These sections in the Fire Insurance Part are repealed as sec tions 187a and 187d of the Bill wiU be of general application and the repealed sections would only be duplicates. 3

8. Subject to

section 9,

Part VII is repealed and the fol lowing

Part is substituted:

PART VII AUTOMOBILE INSURANCE 278. In this Part, (a) "contract' means a contract of automobile insur~ ance; (b) "insured" means a person insured by a contract whether named or not. 279.

(1) This Part applies to contracts providing auto mobile insurance made or renewed in Alberta on or after the coming into force of this Part.

(2) This Part does not apply to contracts insuring only against, (

a) loss of or damage to an automobile while in or on described premises, (

b) loss of or damage to property carried in or upon an automobile, or (

c) liability for loss of or damage to property carried in or upon an automobile.

(3) This Part does not apply to a contract providing in surance in respect of an automobile not required to be registered under The Highway Traffic Act unless it is in sured under a contract evidenced by a form of policy approved under this Part.

(4) This Part does not apply to a contract insuring solely the interest of a person who has a lien upon, or has as security legal title to, an automobile and who does not have possession of the automobile. Approval of Forms 280.

(1) No insurer shall use a form of application, policy, endorsement or renewal or continuation certificate in respect of automobile insurance other than a form ap proved by the Superintendent.

(2) An insurer may require additional information in an approved application form, but such additional infor mation does not constitute part of the application for the purposes of

section 283.

(3) Where, in the opinion of the Superintendent, any provision of this Part, including any statutory condition, is wholly or partly inappropriate to the requirements of a contract or is inapplicable by reason of the requirements of any Act, he may approve a form of policy, or part there of, or endorsement evidencing a contract sufficient or ap propria te to insure the rj sks required or proposed to be insured, and the contract evidenced by the policy or endorse- 4

8. This repeals the se·ctions of the Automobile Insurance Part of the Act. Later reference to

section numbers is to the

section numbers of the substituted Part.

Section 278. Clauses (

a) and (

b) of this

section are the same as clauses (

c) and (

e) of

section 278 of the Act. The

definitions in claus'es (a), (b), (d), (

f) and (

g) of

section 278 have been trans ferred to

section

Section 279. This corresponds to

section 279 of the Act. There have been some relatively minor changes in the application of the Part. However, subsection (4) is new and is designed to exclude from the Part single interest policies where no public interest is concerned.

Section 280 (1). This corresponds to

section 285 (1) of the Act but it has been extended to embody the substance of

section 280 (3), (4) and (5) of the Act, i.e. to leave the matter of the contents of applications to approval.

(2) This corresponds to

section 280 (3) (~) and section.280 (4) (

k) of the Act. The proviso is n~w and WIll prevent relIance by the insurer upon additional questions asked.

(3) This corresponds to

section 301 of the Act. 4

ment in the form so approved is effective and binding according to its terms notwithstanding that those terms are inconsistent with, vary, omit or add to any provision or con dition of this Part.

(4) Except as to matters mentioned in

section 292, the Superintendent may, if he considers it to be in the public interest, approve a form of motor vehicle liability policy or endorsement thereto that extends the insurance beyond that prescribed in this Part.

(5) The Superintendent, in granting an approval under subsection (4), may require the insurer to charge an ad ditional premium for the extension and to state that fact in the policy or in any endorsement.

(6) The Superintendent may revoke an approval given under this section, and, upon notification of the revocation in writing, no insurer shall thereafter use or deliver a form that contravenes the notification.

(7) The Superintendent shall, on request of any interested insurer, specify in writing his reasons for granting, re fusing or revoking an approval of a form.

(8) An insurer that issues or delivers an owner's policy in Alberta, or any renewal thereof, or any evidence of the continuation of the policy, shall issue to the insured a card evidencing the insurance, and the card shall be in a form approved by the Superintendent. Application and Policy 281. No person carrying on the business of financing the sale or purchase of automobiles and no automobile dealer, insurance agent or broker and no officer or employee of such a person, dealer, agent or broker shall act as the agent of an applicant for the purpose of signing an application for automobile insurance. 282.

(1) A copy of the written application, signed by the insured or his agent, or, if no signed application is made, a copy of the purported application, or a copy of such part of the application or purported application as is material to the contract, shall be embodied in, endorsed upon or at tached to the policy when issued by the insurer.

(2) If no signed written application is received by the insurer prior to the issue of the policy, the insurer shall de liver or mail to the insured named in the policy, or to the agent for delivery or mailing to the insured, a form of ap plication to be completed and signed by the insured and re turned to the insurer.

(3) The insurer shall deliver or mail to the insured named in the policy, or to the agent for delivery or mailing to the insured, the policy or a true copy thereof and every endorse ment or other amendment to the contract. 5

(4) This corresponds to

section 298 (4) of the Act.

(5) This corresponds to

section 298 (5) of the Act.

(6) This is new (7) 'This corresponds to

section 285 (2) of the Act.

(8) This is new.

Section 281. This corresponds to

section 280 (2) of the Act. Sedion282 (1). This corresponds to

section 280 (8) of the Act although the reference to pm-ported appUcation :is new.

(2) This is new.

(3) This corresponds to

section 282 (3). 5

(4) Where a written application signed by the insured or his agent is made for a contract, the policy evidencing the contract shall be deemed to be in accordance with the ap plication unless the insurer points out in writing to the in sured named in the policy in what respect the policy differs from the application, and, in that event, the insured shall be deemed to have accepted the policy unless within one week from the receipt of the notification he informs the insurer in writing that he rejects the policy.

(5) Upon every application form and policy, there shall be printed or stamped in conspicuous type a copy of sub section (1) of

section 283. 283.

(1) Where, (

a) an applicant for a contract, (

i) gives false particulars of the described auto mobile to be insured to the prejudice of the insurer, or (ii) knowingly misrepresents or fails to disclose in the application any fact required to be stated therein, or (

b) the insured contravenes a term of the contract or commits a fraud, or (

c) the insured wilfully makes a false statement in respect of a claim under the contract, a claim by the insured is invalid and the right of the in sured to recover indemnity is forfeited.

(2) No statement of the applicant shall be used in de fence of a claim under the contract unless it is contained in the signed written application therefor or, where no signed written application is made, in the purported application, or part thereof, that is embodied in, endorsed upon or at tached to the policy.

(3) No statement contained in a purported copy of the application, or part thereof, other than a statement de scribing the risk and the extent of the insurance, shall be used in defence of a claim under the contract unless the insurer proves that the applicant made the statement attributed to him in the purported application, or part thereof. 284.

(1) Subject to subsection (3) of

section 280,

section 285 and

section 305, (

a) the conditions set forth in this

section are statutory conditions and shall be deemed to be part of every contract and shall be printed in every policy with the heading "Statutory Conditions", and (

b) no variation or omission of or addition to a statutory condition is binding on the insured.

(2) In this

section "policy" does not include an interim receipt or binder. 6

(4) This corresponds to the second part of

section 282 (2).

(5) This corresponds to

section 280 (6) of the Act.

Section 283 (1). This corresponds to

section 286 (1) of the Act.

(2) This corresponds to

section 286 (2) of the Act but: contains a reference to questions and answers from a purported application. (3 ) This provision is new and puts the onus on the insurer where no written application has been taken of proving that the insured in fact made the answers shown in the purported application.

Section 284. This ,corresponds to

section 283 (1) of the Act. 6

Statutory Conditions In these statutory conditions, unless the context otherwise re quires, the word "insured" means a person insured by this contract whether named or not. Material Change in Risk I.

(1) The insured named in this contract shall promptly notify the insurer or its local agent in writing of any change in the risk material to the contract and within his knowledge.

(2) Without restricting the generality of the foregoing, the words "change in the risk material to the contract" include: (

a) any change in the insurable interest of the insured named in this contract in the automobile by sale, assignment or other wise, ex'cept through change of title by succession, death or proceedings und'er the Bankruptcy Act (Canada); and in respect of insurance against loss of or damage to the auto mobile, (

b) any mortgage, lien or encumbrance affecting the automobile after the application for this contract; (

c) any other insurance of the same interest, whether valid or not, covering loss OT' damage insured by this contract or any portion thereof. Prohibited Use by Insured 2.

(1) The insured shall not drive or oper- ate the automobile, (

a) while under the influence of intoxi cating liquor or drugs to such an extent as to be for the time being incapable of the proper control of the automobile; or (

b) unless he is for the time being either authorized by law or qualified to drive or operate the automobile; or (

c) while he is under the age of 16 years or under such other age as is prescribed by the law of the province in which he resides at the time this contract is made as being the minimum age at which a licence or permit to drive an automobile may be issued to him; or (

d) for any illicit or prohibited trade or transportation; or (

e) in any race or speed test. Prohibited Use by Others

(2) The insured shall not permit, suffer, allow or connive at the use of the automobile, (

a) by any person under the influence of intoxicating liquor or drugs to such an extent as to be for the time being incapable of the proper control of the auto mobile; or (

b) by any person, 0) unless that person is for the time being either authorized by law or qualified to drive or operate the automobile; or (ii) while that person is under the age of 16 years or under such other age as is prescribed by the law of the province in which he resides at the time this contract is made as being the minimum age at which a licence or permit to drive an automobile may be issued to him; or (

c) for any illicit or prohibited trade or transportation; or (

d) in any race or speed test. 7

STATUTORY CONDITIONS Stat. Con. 1. This corresponds to present Statutory Condition 1. Stat. Con. 2. This corresponds to present Statutory Condition 2. Note: Pres'ent Statutory Conditions 3 and 4 have been embodied in

section 294 hereof. 7

Requirements Where Loss 3.

(1) The insured shall, (

a) promptly give to the insurer written notice, with all available particulars, of any accident involving loss or damage to persons or property and of any claim made on account of the or Damage to Persons or Property accident; (

b) verify by statutory declaration, if required by the insurer, that the claim arose out of the use or operation of the auto mobile and that the person operating or responsible for the operation of the automobile at the time of the accident is a person insured under this contract; and (

c) forward immediately to the insurer every letter, document, advice or writ received by him from or on behalf of the claimant.

(2) The insured shall not, (

a) voluntarily assume any liability or settle any claim except at his own cost; or (

b) interfere in any negotiations for settlement or in any legal proceeding.

(3) The insured shall, whenever requested by the insurer, aid in securing information and evidence and the attendance of any wit ness and shall co-operate with the insurer, except in a pecuniary way, in the defence of any action or proceeding or in the prosecu tion of any appeal. 4. ( 1) Where loss of or damage to the automobile occurs, the insured shall, if the loss or damage is covered by this contract, Requirements Where Loss or Damage to Automobile (

a) promptly give notive thereof in writ ing to the insurer with the fullest information obtainable at the time; (

b) at the expense of the insurer, and as far as reasonably pos sible, protect the automobile from further loss or damage; and (

c) deliver to the insurer within 90 days after the date of the loss or damage a statutory declaration stating, to the best of his knowledge and belief, the place, time, cause and amount of the loss or damage, the interest of the insured and of all others therein, the encumbrances thereon, all other insurance, whether valid or not, covering the auto mobile and that the loss or damage did not occur through any wilful act or neglect, procurement, means or connivance of the insured.

(2) Any further loss or damage accruing to the automobile di rectly or indirectly from a failure to protect: it as required under sub condition 1 of this condition is not recoverable under this con tract.

(3) No repairs, other than those that are immediately necessary for the protection of the automobile from further loss or damage, shall he undertaken and no physical evidence of the loss or damage shall be removed, 8 (

a) without the written consent of the insurer; or (

b) until the insurer has had a reasonable time to make the ex amination for which provision is made in statutory condition 5.

Stat. Con. 3. This 'corresponds to present Statutory Condition 6. Stat. Con. 4. This corresponds to present Statutory Condition 7 except that there has been a clarification that is contained in sub condition (7) hereof. Also the procedure for appraisal presently contained in Statutory Condition 7 is to be transferred to a general

section designated as

section 187a. Note: Statutory Condition 8 is embodied in proposed

section 187a. 8

Examination of Insured

(4) The insured shall submit to examma tion under oath, and shall produce for ex amination at such reasonabl'e place and time as is designated by the insurer or its representative all documents in his possession or control that relate to the matters in question, and he shall p'ermi t extracts and copies thereof to be made. Insurer Liable for Cash Value of Automobile

(5) The insurer shall not be liable for more than the actual cash value of the automobile a t the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to that actual cash value with proper deduc tion for depreciation, however caused, and shall not exceed the amount that it would cost to repair or replace the automobile, or any part thereof, with material of like kind and quality, but, if any part of the automobile is obsolete and out of stock, the liability of the insurer in respect thereof shall be limited to the value of that part at the time of loss or damage, not exceeding the maker's latest list price. Repair or Replacement

(6) Except where an appraisal has been made, the insurer, instead of making pay ment, may, within a reasonable time, repair, rebuild or replace the property damaged or lost with other of like kind and quality if, within seven days after the receipt of the proof of loss, it gives written notice of its intention to do so. No Abandonment; Salvage

(7) There shall be no abandonment of the automobile to the insurer without the in surer's consent:. If the insurer exercises the option to replace the automobile or pays the actual cash value of the automobile, the salvage, if any, shall vest in the insurer. In Case of

(8) In the event of disagreement as to the Disagreement nature and extent of the repairs and replace- ments required, or as to their adequacy, if effected, or as to the amount payable in respect of any loss or damage, those questions shall be determined by appraisal as pro vided under The Insurance Act before there can be recovery under this contract, whether the right to recover on the contract is dis puted or not, and independently of all other qU'estions. There shall be no right to an appraisal until a specific demand therefor is made in writing and until after proof of loss has been delivered.

Inspection of Automobile Time and Manner of Payment of Insurance Money 5. The insured shall permit the insurer at all reasonable times to inspect the automobile and its equipment. 6.

(1) The insurer shall pay the insurance money for which it is liable under this con tract within 60 days after the proof of loss has been received by it or, where an ap praisal is made under subcondition 8 of statutory condition 4, within 15 days after the award is rendered 'by the appraisers. When Action

(2) The insured shall not bring an action May be Brought to recover the amount of a claim under this contract unless the requirements of statutory conditions 3 and 4 are complied with or until the amount of the loss has been ascertained as therein provided or by a judgment against the insured after trial of the issue or by agreement between the parties with the written consent of the insurer. 9

Stat. Con. 5. This corresponds to present Statutory Condition 9. Stat. Con. 6. This corresponds to present Statutory Condition 10. 9

Limitation of Actions

(3) Every action or proceeding against the insurer under this contract in respect of loss or damage to the automobile shall be com menced wi thin one year next after the happening of the loss and not afterwards, and in respect of loss or damage to persons or property shall be commenced within one year next after the cause of action arose and not afterwards. Who May Give Notice and Proofs of Claim 7.

Notice of claim may be given and proofs of claim may be made by the agent of the insured named in this contract in case of absence or inability of the insured to give the notice or make the proof, such absence or inability being satis factorily accounted for or, in the like case or if the insured refuses to do so, by a person to whom any part of the insurance money is payable. Termination 8.

(1) This contract may be terminated, (

a) by the insurer giving to the insured 15 days' notice of termination by registered mail or five days' written notice of termination personally delivered; (

b) by the insured at any time on request.

(2) Where this contract is terminated by the insurer, (

a) the insurer shall refund the excess of premium actually paid by the insured over the pro rata premium for the ex pired time, but in no event shall the pro rata premium for the expired time be deemed to be less than any minimum retained premium specified; and (

b) the refund shall accompany the notice unless the premium is subject to adjustment or determination as to the amount, in whkh case the refund shall be made as soon as practic able.

(3) Where this contract is terminated by the insured, the insurer shall refund as soon as practicable the excess of premium actually paid by the insured over the short rate premium for the expired time, but in no event shall the short rate premium for the expired time be deemed to be less than any minimum retained premium specifi'€d.

(4) The refund may be made by money, postal or express company money order or cheque payable at par. (5.) The 15 days mentioned in clause (

a) of sub condition 1 of this condition conlmences to run on the day following the receipt of the registered letter at the post office to which it is addressed. Notice 9. Any written notice to the insurer may be delivered at, or sent by regist'€red mail to, the chief agency or head office of the insurer in the province. Writ ten notice may be given to the insured named in this contract: by letter personally delivered to him or by registered mail addressed to him at his latest post office address as notified to the insurer. In this condition, the expression "registered" means registered in or outside Canada. 10

Stat. Con. 7. This corresponds to present Statutory Condition 11. Stat. Con. 8. This corresponds to present Statutory Condition 12 but has been expanded to cover cases where the amount of the premium is not susceptible of determination until the insured reports. Stat. Con. 9. This corresponds to present Statutory Condition 13. 10

(1) Except as otherwise provided in the contract, the statutory conditions set forth in

section 284 do not apply to insurance coming within

section 305, 305b or 305d.

(2) Where a contract does not insure against liability for loss or damage to persons and property, statutory condition 3 in

section 284 is not a part of the policy and may be omitted from the printing of the conditions in the policy.

(3) Where a contract does not insure against loss of or damage to the automobile, statutory condition 4 in

section 284 is not a part of the policy and may be omitted from the printing of the conditions in the policy. Motor Vehicle Liability Policies 286.

(1) Every contract evidenced by an owner's policy insures the person named therein and every other person who with his consent personally drives an automobile owned by the insured named in the contract and within the de scription or definition thereof in the contract against liability inlposed by law upon the insured named in the contract or that other person for loss or damage, (

a) arising frOlTI the ownership, use or operation of any such automobile, and (

b) resulting from bodily injury to or the death of any person, and damage to property.

(2) Where the contract evidenced by an owner's policy also provides insurance against liability in respect of an automobile not owned by the insured named in the contract, an insurer may stipulate in the contract that the insurance is restricted to such persons as are specified in the contract.

(3) Where the insured named in an owner's policy dies, the following persons shall be deemed to be the insured under the policy: (

a) The spouse of the deceased insured if residing in the same dwelling premises at the time of his death; (

b) In respect of the described automobile, a newly acquired automobile that was acquired by the de ceased insured prior to his death and a temporary substitute automobile, all as defined by the policy, (

i) any person having proper temporary custody thereof until grant of probate or administra tion to the personal representative of the de ceased insured, (ii) the personal representative of the deceased in sured. 287. Every contract evidenced by a non-owner's policy insures the person named therein and such other person, if any, as is specified in the policy against liability imposed by law upon the insured named in the contract or that other person for loss or damage, 11

Section 285 (1). This is new and leaves the specific conditions re quired for the three types of insurance covered by the sections mentioned to approval by the Superintendent. The statutory con ditions generally are inappropriate for these types of insurance.

(2) This corresponds to

section 284 (1) of the Act.

(3) This corresponds to

section 284 (2) -of the Act.

Section 286 .. This corresponds to

section 293 of the Act when read in conjunction with sections 288 and 289 hereof. 287. This corresponds to se-ction 294 of the Act but it is ?road~r in that it specifically includes under the Act any non-owner s pohcy not merely a driver's policy as at present'. 11

(a) (

b) arising from the use or operation of an automobile within the definition thereof in the policy, other than an automobile owned by him or registered in his name, and resulting from bodily injury to or the death of any person, and damage to property. 288. For the purposes of this Part, a person shall not be deemed to be the owner of an automobile for the reason only that he has a lien on the automobile or has legal title to the automobile as security. 289.

Insurance under sections 286 and 287 applies to the ownership, use or operation of the insured automobile with in Canada and the United States of America and upon a vessel plying between ports of those countries. 290. Any person insured by but not named in a contract to which

section 286 or 287 applies may recover indemnity in the same manner and to the same extent as if named therein as the insured, and for that purpose shall be deemed to be a party to the contract and to have given consideration therefor. 291. Every contract evidenced by a motor vehicle liability policy shall provide that, where a person insured by the contract is involved in an accident resulting from the owner ship, use or operation of an automobile in respect of which insurance is provided under the contract and resulting in loss or damage to persons or property, the insurer shall, (

a) upon receipt of notice of loss or damage caused to persons or property, make such investigations, con duct such negotiations with the claimant and effect such settlement of any resulting claims as are deemed expedient by the insurer, (

b) defend in the name and on behalf of the insured and at the cost of the insurer any civil action that is at any time brought against the insured on ac count of loss or damage to persons or property, (

c) pay all costs taxed against the insured in any civil action defended by the insurer and any interest accruing after entry of judgment upon that part of the judgment that is within the limits of the in surer's liability, and (

d) where the injury is to a person, reimburse the in sured for outlay for such medical aid as is im mediately necessary at the time. 292. The insurer is not liable under a contract evidenced by a motor vehicle liability policy for any liability, 12 (

a) imposed by any workmen's compensation law upon any person insured by the contract, or

Section 288. This is new. Its purpose is to cover cases where the lien or title holder has not possession.

Section 289. This corresponds to

section 293 of the Act in its reference to territorial limits.

Section 290. This corresponds to

section 293 (3) of the Act but it is broader in its application in that it includes all third parties mentioned in the insuring agreement.

Section 291. This corresponds to

section 295 (1) of the Act but it is not restricted merely to an owner's and driver's policy.

Section 292. This corresponds to clauses (a), (

b) and (

f) of

section 296 of the Act. However, the class of excluded persons is somewhat less restrictive than under

section 296 (

b) of the Act. 12

(b) (

c) resulting from bodily injury to or the death of, (

i) the daughter, son, wife or husband of any per son insured by the contract while being carried in or upon or entering or getting on to or alighting from the automobile, or (ii) any person insured by the contract, or resulting from bodily injury to or the death of any employee of any person insured by the contract while engaged in the operation or repair of the automobile. 293. The insurer may provide under a contract evidenced by a motor vehicle liability policy, in either or both of the following cases, that it shall not be liable: (

a) to indemnify any person engaged in the business of selling, repairing, maintaining, servicing, storing or parking automobiles for any loss or damage sus tained while engaged in the use or operation of or while working upon the automobile in the course of that business unless the person is the owner of the automobile or is his employee; (

b) for loss of or damage to property carried in or upon the automobile or to any property owned or rented by or in the care, custody or control of the insured. 294. Subject to the limitations and exclusions of the en dorsement, the insurer may provide by endorsement to a contract evidenced by a motor vehicle liability policy, in either or both of the following cases, that it shall not be liable for loss or damage: (

a) resulting from bodily injury to or the death of any person being carried in or upon or entering or getting on to or alighting from the automobile; (

b) resulting from the ownership, use or operation of any machinery or apparatus, including its equip ment, mounted on or attached to the automobile while such automobile is at the site of the use or operation -of that machinery or apparatus. 295.

(1) The insurer may provide under a contract evidenced by a motor vehicle liability policy, in one or more of the following cases, that it shall not be liable while: (

a) the automobile is rented or leased to another per son; (

b) the automobile is used to carry explosives or to carry radioactive material for research education development or industrial purposes or f~r purpose~ incidental thereto; (

c) the automobile is used as a taxi-cab, public omnibus livery, jitney or sightseeing conveyance or fo~ carrying passengers for compensation or hire; 13

Section 293. This corresponds to clauses (

c) and (

e) of

section 296 of the Act.

Section 294. This corresponds to -clauses (

d) and (

g) of

section 296 of the Act.

Section 295. Subsection (1) incorporates the substance of present Statutory Conditions 3 and 4. Subsection (2) is new. Subsection (3) is new and it is designed to obviate the necessity of obtaining a specific endorsement where the grant would be a matter of course. 13

(d) (

e) where the insured vehicle is an automobile, other than a trailer, it is used for towing a trailer owned by the insured unless like indemnity is also provided by the insurer in respect of the trailer; where the insured vehicle is a trailer, it is towed by an automobile owned by the insured unless like indemnity is also provided by the insurer in respect of the automobile.

(2) In clause (

b) of subsection (1) "radioactive ma terial" means (

a) spent nuclear fuel rods that have been exposed to radiation in a nuclear reactor, or (

b) radioactive waste material, or (

c) unused enriched nuclear fuel rods, or (

d) any other radioactive material of such quantity and quality as to be harmful to persons or property if its container were destroyed or damaged.

(3) Clause (

a) of subsection (1) does not include the use by an employee of his automobile on the business of his em ployer and for which he is paid.

(4) Clause (

c) of subsection (1) does not include (

a) the use by a person of his automobile for the car riage of another person in return for the former's carriage in the automobile of the latter, or (

b) the occasional and infrequent use by a person of his automobile for the carriage of another person who shares the cost of the trip, or (

c) the use by a person of his automobile for the car riage of a temporary or permanent domestic servant of the insured or his spouse, or (

d) the use by a person of his automobile for the car riage of a client or customer or a prospective client or customer. 296.

(1) Every contract evidenced by a motor vehicle liability policy insures, in respect of anyone accident, to the limit of at least $35,000, exclusive of interest and costs, against liability resulting from bodily injury to or the death of one or more persons and loss of or damage to property.

(2) The contract shall be interpreted to mean that where by reason of anyone accident, liability results from bodily injury or death and from loss of or damage to property, 14 (

a) claims against the insured arising out of bodily injury or death have priority to the extent of $30 - 000 over claims arising out of loss of or damage to property, and (

b) claims against the insured arising out of loss of or damage to property have priority to the extent of $5,000 over claims arising out of bodily injury or death.

Section 296. This corresponds to

section 297 of the Act. However, subsection (3) hereof is new and allows for split limits provided each is for not less than $35,000. Subsection (4) is also new. 14

(3) The insurer may, instead of specifying a limit in the policy for an inclusive amount, specify a limit of liability of at least $35,000, exclusive of interest and costs, against liability resulting from bodily injury to or the death of one or more persons and a limit of liability of at least $35,000, exclusive of interest and costs, against liability for loss of or damage to property.

(4) Nothing in this Part precludes an insurer, with re spect to a limit or limits in excess of those specified in sub section (1) or (3), from increasing or reducing the limit or limits specified in the contract with respect to the use or operation of the automobile by a named person, but no reduction is effective for a limit less than that required un der subsection (1) or (3). 297.

(1) Every motor vehicle liability policy issued in Alberta shall provide that, in the case of liability arising out of the ownership, use or operation of the automobile in any province or territory of Canada, (

a) the insurer shall be liable up to the minimum limits prescribed for that province or territory if those limits are higher than the limits prescribed by the policy, (

b) the insurer shall not set up any defence to a claim that might not be set up if the policy were a motor vehicle liability policy issued in that province or territory, and (

c) the insured, by acceptance of the policy, constitutes and appoints the insurer his irrevocable attorney to appear and defend in any province or territory of Canada in which an action is brought against the insured arising out of the ownership, use or opera tion of the automobile.

(2) A provision in a motor vehicle liability policy in ac cordance with clause (

c) of subsection (1) is binding on the insured. 298.

(1) Nothing in this Part precludes an insurer from providing insurance under a contract evidenced by a motor vehicle liability policy restricted to a limit in excess of that provided by another designated contract evidenced by a motor vehicle liability policy, whether the designated con tract is a first loss insurance or an excess insurance.

(2) Where the contract designated in the excess contract terminates or is terminated, the excess contract is also au toma tically terminated. 299. Nothing in this Part precludes an insurer from entering into an agreement with its insured under a contract evidenced by a motor vehicle liability policy providing that the insured will reimburse the insurer in an agreed amount 15

Section 297. This

section is new and should ,be considered in con junction with new

section 33 (4).

Section 298. This is new and provides for the writing of excess insurance-a practice which is necessary.

Section 299. This is new and gives statutory recognition to agree ments between the insured and the insurer for deductible amounts. 15

in respect of any claim by or judgment in favour of a third party against the insured, and the agreement may be en forced against the insured according to its tenor. 300.

(1) In this

section "nuclear energy hazard" means the radioactive, toxic, explosive or other hazardous prop erties of prescribed substances under the Atomic Energy ContTol Act (Canada).

(2) Where an insured is covered, whether named therein or not, under a contract evidenced by a motor vehicle liabil ity policy for loss or damage resulting from bodily injury to or the death of any person or damage to property arising directly or indirectly out of a nuclear energy hazard and is also covered, whether named therein or not, against such loss or damage under a contract evidenced by a policy of nuclear energy hazard liability insurance issued by a group of insurers and in force at the time of the event giving rise to the loss or damage, (

a) the motor vehicle liability insurance is excess to the nuclear energy hazard liability insurance,and the insurer under the contract of motor vehicle liability insurance is not liable to pay beyond the minimum limits prescribed by

section 296, and (

b) the unnamed insured under the contract of nuclear energy liability insurance may, in respect of such loss or damage, recover indemnity under that eon tract in the same manner and to the same extent as if named therein as the insured, and for that pur pose he shall be deemed to be a party to the contract and to have given consideration therefor.

(3) For the purpose of this section, a contract of nuclear energy hazard liability insurance shall be deemed to be in force at the time of the event giving rise to the loss or damage, notwithstanding that the limits of liability there under have been exhausted. 301.

(1) Where a person is insured under more than one contract evidenced by a motor vehicle liability policy, whether the insurance is first loss insurance or excess, and a question arises under clause (

b) of

section 291 between an insurer and the insured or between the insurers as to which insurer shall undertake the obligation to defend in the name and on behalf of the insured, whether or not any insurer denies liability under its contract, the insured or any in surer may apply to the Supreme Court, and the court shall give such directions as may appear proper with respect to the performance of the obligation.

(2) On an application under subsection (1), the only parties entitled to notice thereof and to be heard thereon are the insured and his insurers, and no material or evidence used or taken upon such an application is admissible upon 16

Section 300. This corresponds to

section 296a of the Act.

Section 301. 'This corresponds to subsections (2) to (5) of

section 295 of the Act. 16

the trial of an action brought against the insured for loss or damage to persons or property arising ,out of the use or operation of the automobile in respect of which the insur ance is provided.

(3) An order under subsection (1) does not affect the rights and obligations of the insurers in respect of payment of any indemnity under their respective policies. ( 4) Where indemnity is provided to the insured under two or more contracts and one or more of them are excess in surance, the insurers shall, as between themselves, con tribute to the payment of expenses, costs and reimbursement for which provision is made in

section 291 in accordance with their respective liabilities for damages awarded against the insured. 302.

(1) Any person who has a claim against an insured for whicn indemnity is provided by a contract evidenced by a motor vehi.cle liability policy, notwithstanding that such person is not a party to the contract, may, upon re covering a judgment therefor in any province or territory of Canada against the insured, have the insurance money payable under the contract applied in or towards satisfac tion of his judgment and of any other judgments or claims against the insured covered by the contract and may, on behalf of himself and all persons having such judgments or claims, maintain an action against the insurer to have the insurance money so applied.

(2) No action shall be brought against an insurer under subsection (1) after the expiration of one year from the final determination of the action against the insured, in cluding appeals if any.

(3) A creditor of the insured is not entitled to share in the insurance money payable under any contract unless his claim is one for which indemnity is provided for by that contract.

(4) The right of a person who is entitled under subsection (1) to have insurance money applied upon his judgment or claim is not prejudiced by (

a) an assignment, waiver, surrender, cancellation or discharge of the contract, or of any interest therein or of the proceeds thereof, made by the insured after the happening of the event giving rise to a claim under the contract, or (

b) any act or default of the insured before or after that event in contravention of this Part or of the terms of the contract, or (

c) any contravention of the Criminal Code (Canada) or a statute of any province or territory of Canada or of any state ,or the District of Columbia of the United States of America by the owner or driver of the automobile, 17

Section 302. Except as to subsections (2), (7) and (8), which are new, this

section ,corresponds to

section 302 of the Act. Certain changes have been made in subsections (9), (10), (11) and (12) to clarify the wording and to give effect to the exclusions now con tained in

section 295 (1) hereof. There are in part presently con tained in Statutory Conditions 3 and 4. 17

and nothing mentioned in clause (a), (

b) or (

c) is available to the insurer as a defence in an action brought under sub section (1).

(5) It is not a defence to an action under this

section that an instrument issued as a motor vehicle liability policy by a person engaged in the business of an insurer and alleged by a party to the action to be such a policy is not a motor vehicle liability policy, and this

section applies mutatis mutandis to the instrument.

(6) The insurer may require any other insurers liable to indemnify the insured in whole or in

part in respect of judg ments or claims to which reference is made in subsection (1) to be made parties to the action and contribute accord ing to their respective liabilities, whether the contribution is ratable or by way of first loss or excess insurance, as the case may be, and the insured shall on demand furnish the insurer with particulars of all other insurance covering the subject matter of the contract.

(7) Where any person has recovered a judgment against the insured and is entitled to bring action under subsection (1), and the insurer admits liability to pay the insurance money under the contract and the insurer considers that (

a) there are or may be other claimants, or (

b) there is no person capable of giving and authorized to give a valid discharge for payment who is willing to do so, the insurer may apply to the court ex parte for an order for payment of the money into court, and the court may, upon such notice, if any, as it thinks necesary, make an order accordingly.

(8) The receipt of the proper officer of the court is suf ficient discharge to the insurer for the insurance money paid into court under subsection (7), ,and the insurance money shall be dealt with as the court may order upon application of any person interested therein.

(9) Notwithstanding anything contained therein to the contrary, every contract evidenced by a motor vehicle liabil ity policy shall, for the purposes of this section, be deemed to provide all the types of coverage mentioned in

section 295, but the insurer is not liable to a claimant, (

a) where the claim results from bodily injury to or the death of any person being carried in or upon or entering or getting on to or alighting from the auto mobile, or (

b) with respect to such coverage in excess of the limits mentioned in

section 296.

(10) Where one or more contracts provide for coverage of a type mentioned in

section 293 or 294, except as provided in subsection (12), the insurer may, (

a) with respect to that type of coverage, and 18

(

b) as against a claimant, avail itself of any defence that it is entitled to set up against the insured, notwithstanding subsection (4).

(11) Where one or more contracts provide for coverage in excess of the limits mentioned in

section 296, except as provided in subsection (12), the insurer may, (

a) with respect to the coverage in excess of those limits, and (

b) as against a claimant, avail itself of any defence that it is entitled to set up against the insured, notwithstanding subsection (4).

(12) Where a contract provides coverage of the type men tioned in clause (

a) of

section 294 in respect of an auto mobile operated in the business of carrying passengers for compensation or hire and insured for that purpose, the in surer may, (

a) with respect to that type of coverage, and (

b) as against a claimant, only avail itself of a defence that it is entitled to set up against the insured in respect of that part of the coverage, if any. that exceeds, (

c) the limits mentioned in

section 296, or (

d) the minimum limits required for that type of cover age by or under any other Act, whichever is the greater.

(13) The insured shall reimburse the insurer upon de mand in the amount that the insurer has paid by reason of this

section and that it would not otherwise be liable to pay.

(14) Where an insurer denies liability under a contract evidenced by a motor vehicle liability policy, it shall, upon application to the court, be made a third party in any action to which the insured is a party and in which a claim is made against the insured by any party to the action in which it is or might be asserted that indemnity is provided by the contract, whether or not the insured enters an appearance or defence in the action.

(15) Upon being made a third party, the insurer may (

a) contest the liability of the insured to any party claiming against the insured, (

b) contest the amount of any claim made against the insured, (

c) deliver any pleadings in respect of the claim of any party claiming against the insured, (

d) have production and discovery from any party ad verse in interest, and (

e) examine and cross-examine witnesses at the trial, to the same extent as if it were a defendant in the action. 19

(16) An insurer may avail itself of subsection (15) not withstanding that another insurer is defending in the name and on behalf of the insured an action to which its insured is a party. 303.

(1) Every insured against whom an action is com menced for damages occasioned by an automobile shall give notice thereof in writing to the insurer within five days after service of every notice or process in the action.

(2) Every insured against whom an action is commenced for damages 'Occasioned by an automobile shall, upon re covery of a judgment against the insured, disclose to a judgment creditor entitled to the benefit of any motor vehicle liability policy particulars of such c'Ontract within 10 days after written demand therefor. Physical Damage Cover 304. Subject to subsection (1) of

section 280, the insurer may provide in a contract such exclusions and limitations, in respect of loss of or damage to or the loss of use of the automobile, as it considers necessary. 305.

(1) A contract or part of a contract providing in surance against loss of Or damage to an automobile and the loss of use thereof may contain a clause to the effect that, in the event of loss, the insurer shall pay only (

a) an agreed portion of any loss that may be sustained, or (

b) the am'Ount of the loss after deduction 'Of a sum specified in the policy, and in either case not exceeding the amount of the insurance.

(2) Where a clause is inserted in accordance with sub section (1), there shall be printed or stamped upon the face of the policy in conspicuous type the words: "This policy contains a partial payment of loss clause." 305a.

(1) Where a claim is made under any contract other than a contract evidenced by a motor vehicle liability policy, the insurer shall, notwithstanding any agreement, adjust the amount of the claim with the insured named in the contract as well as with any person having an interest indicated in the contract.

(2) Where notice is given or proof of loss is made by a person other than the insured, because the insured cannot be located or neglects or refuses or is unable to give notice and make claim under statutory conditions 4 and 7 in

section 284, the insurer may, notwithstanding subsection (1) but in any event not earlier than 60 days from delivery of the proof required under clause (

c) of subsection (1) of statu tory c'Ondition 4, adjust and pay the claim to the other per son having an interest indicated in the contract. 20

Section 303. This is new.

Section 304. This is new but corresponds to the present inter pretation of the Act, namely, allowing freedom, subject to approval, of exclusions in the physical "damage cover.

Section 305. This corresponds to

section 303 of the Act.

Section '305a.

(1) This corresponds to

section 304 of the Act.

(2) This is new and is designed, subject to safeguards, to allow a loss payee to make claim when the insured is not available .. 20

Limited Accident Insurances 305b.

(1) Where an insurer provides in a contract in surance against loss resulting from bodily injury to or the death of a person insured arising out of an accident involv ing an automobile where (

a) there is legal liability of another person for the in jury or death, and (

b) the other person has no insurance against his liability therefor or that person cannot be identified, that insurance applies only in respect of (

c) any person who sustains bodily injury or death while driving, being carried in or upon or entering or getting on to or alighting from the described automobile in respect of which insurance of the class mentioned in subclause (

i) of clause 6 of

section 2 is provided under the contract, and (

d) the insured named in the contract and his or her spouse and any dependent relative residing in the same dwelling premises as the insured named in the contract who sustains bodily injury or death while driving, being carried in or upon Dr entering or getting on to or alighting from or as a result of being struck by any other automobile that is defined in the contra·ct for the purposes of that insurance.

(2) The insurance mentioned in subsection (1) does not apply in respect of a person specified therein who has a right of recovery under The Motor Vehicle Accident Claims Act or similar legislation of any other province or territory of Canada or of any state or the District of Columbia of the United States of America. 305c.

(1) Where in a contract an insurer provide-s in surance against expenses for medical, surgical, dental, ambulance, hospital, professional nursing or funeral ser vices, the insurance applies only in respect of reasonable expenses (

a) of or incurred for any person who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or, if not the occupant of another automobile, as a result of being struck by an automobile owned by the insured named in the contract in respect of which insurance of the class mentioned in subclause (

i) of clause 6 of

section 2 is provided under the contract, and (

b) of the insured named in the contract and his or her spouse and any dependent relative residing in the same dwelling premises as the insured named in the contract who sustains bodily injury or death while driving or being carried in or upon or entering- or getting on to or alighting from or as a result of 21

Section 305b. This is new. This provides for writing as ~utomobile Insurance a coverage entitling the insured under an Automobile policy to recover from his own insurer the amount of damages he would have recovered against an uninsured motorist negligently causing the insured injury. By reas'on of -subsection (2) it is re stricted practically to operation in the United iStates where this type of coverage takes the place of Unsatisfied or Accident Victims funds.

Section 305c. This provision provides for the writing of medical payments cover and corresponds to

section 299 of the Act with this change, namely, that medical payments have been made an in tegral part of Automobile Insurance. Subsection (2) and the following subsections are procedural for dealing with overlapping between policies. 21

being struck by any other automobile that is defined in the contract for the purposes of that insurance.

(2) Where an insurer makes a payment under a ,contract of insurance referred to in subsection (1), the payment constitutes, to the extent of such payment, a release by the insured person or his personal representatives of any claim that the insured person or his personal representatives or any person claiming through or under him or by virtue of The Fatal Accidents Act may have against the insurer and by any other person who may be liable to the insured person or his personal representatives if that other person is in· sured under a contract of the same type as is specified in subsection (1), but nothing in this subsection precludes an insurer from demanding, as a condition precedent to pay ment, a release to the extent of the payment from the person insured or his personal representatives or any other person.

(3) The insurance mentioned in clause (

a) of subsection (1) is a first loss insurance, and any other automobile in surance of the same type available to the injured person or in respect of a deceased person is excess insurance only.

(4) The insurance mentioned in clause (

a) of subsection (1) is excess insurance to any other insurance not being automobile insurance of the same type indemnifying the in jured person or in respect of a deceased person for the expenses.

(5) The insurance mentioned in clause (

b) of subsection (1) is excess insurance to any other insurance indemnifying the injured person or in respect of a deceased person for the expenses. 305d.

(1) Where in a contract an insurer providesac cident insurance benefits in respect of the death of or injury to an insured person arising out of an accident involving an automobile, the insurance applies only in respect of 22 (

a) any person who sustains bodily injury or death while driving or being carried in or upon or enter ing or getting on to or alighting from or, if not the occupant of another automobile, as a result of being struck by an automobile owned by the insured named in the contract in respect of which insurance of the class mentioned in subclause (

i) of clause 6 of

section 2 is provided under the contract, ·and (

b) the insured named in the contract and his or her spouse and any dependent relative residing in the same dwelling premises as the named insured who sustains bodily injury or death while driving or be ingcarried in or upon or entering or getting on to or alighting from or as a result of being struck by any other automobile that is defined in the policy for the purposes of the insurance.

Section 305d. This is new. This provides for limited a'ccident insurance as an integral part of the Automobile Insurance Policy. Subsection (2) and the following subsections are procedural for dealing with overlapping between policies. 22

(2) Where an insurer makes a payment under a contract of insurance to which subsection (1) refers, the payment constitutes, to the extent of such payment, a release by the insured j>erson or his personal representatives of any claim that the insured person or his personal representatives or any person claiming through or under him or by virtue of The Fatal Accidents Act may have against the insurer and by any other person who may be liable to the insured per son or his personal representatives if that other person is in sured under a contract of the same type as is specified in subsection (1), but nothing in this subsection precludes an insurer from demanding, as a condition precedent to pay ment, a release to the extent of the payment from the person insured or his personal representatives or any other person.

(3) Subject to subsection (5), the insurance mentioned in clause (

a) of subsection (1) is a first loss insurance, and any other automobile insurance of the same type available to the injured person or in respect of a deceased person is excess insurance only.

(4) Subject to subsection (5), the insurance mentioned in clause (

b) of subsection (1) is excess insurance over any other automobile insurance of the same type available to the injured person or in respect of a deceased person.

(5) Where a person is entitled to benefits under more than one contract providing insurance of the type mentioned in this section, he or his personal representative or any person claiming through or under him or by virtue of The Fatal Accidents Act may recover only an amount equal to (

a) one benefit, if the benefits under the contracts are of the same limit, or (

b) the highest benefit, if the benefits under the con tracts are not of the same limit. 305e. (1) vVhere a person is injured or killed in an ac cident in Alberta involving an automobile, that person or his personal representative may serve (

a) a demand by registered mail on the owner of the automobile, or (

b) a demand by registered mail on the insurer of the owner of the automobile, requiring the owner or insurer, as the case may be, to state in writing to the person making the demand whether or not that owner has insurance of the type mentioned in

section 305c or 305d or either of them, and, where the demand is made under clause (a), requiring the owner, if he has such insurance, to state the name of the insurer.

(2) An owner or insurer who does not, within 10 days after receiving a demand made under subsection (1) com- ply with the demand is guilty of an offence. ' 23

Section 305e. This is new. This

section and the four following sections are necessary to give effect to the coverages provided under sections 305c and 305d. 23

305/. Any person insured by but not named in a contract to which

section 305c or 305d applies may recover under the contract in the same manner and to the same extent as if named therein as the insured, and for that purpose shall be deemed to be a party to the contract and to have given consideration therefor. 305g.

(1) Where an insurer admits liability for insur ance money payable under

section 305b, 305c or 305d and it appears that (

a) there are adverse claimants, or (

b) the whereabouts of an insured person entitled is unknown, or (

c) there is no person capable of giving and authorized to give a valid discharge therefor who is willing to do so, the insurer may, at any time after 30 days after the date upon which the insurance money becomes payable, apply tQ the court ex parte for an order for payment of the money into the Supreme Court, and the court may upon such notice, if any, as it thinks necessary make an order accordingly.

(2) The receipt of the proper officer of the court is suf ficient discharge to the insurer for the insurance money paid into the Supreme Court, and the insurance money shall be dealt with as the court orders. 305h. Every actiQn or proceeding against an insurer un der a contract in respect of insurance provided under

section 305b, 305c or 305d shall be commenced within the limitation period specified in the contract, but in no event shall the limitation period be less than 'One year after the happening of the accident. 305i.

Where any person makes a claim for damages in respect of bodily injury or death sustained by the person or any other person while driving or being carried in or upon or entering or getting on to or alighting from or as a result of being struck by an automobile, he shall, if required by the person against whom the claim is made or by someone acting on his behalf, furnish to or for that person full par ticulars of all insurance available to the claimant under contracts falling within the scope of

section 3050 or 305d, and of any payments of insurance money made or to be made thereunder. 305j. Subject to subsection (1) of

section 280, an in surer may in a policy 24 (

a) pro'rTide insurance that is less extensjv~ in scope than the insurance mentioned in

section 305b, 3050 or 305d, and (

b) provide the terms of the contract that relate to the insurance mentioned in

section 305b, 3050 or 305d.

Section 305f. This is new.

Section 305g. This is new.

Section 305h. This is new.

Section 305i This is new.

Section 305j. This is new but corresponds in principal to the cover with respe.ct to medical payments provided for under

section 299 of the Act. 24

Other Insurance 305k.

(1) Subject to

section 300, insurance under a con tract evidenced by a valid owner's policy of the kind men tioned in clause 46a of

section 2 is, in respect of liability arising from or occurring in connection with the ownership, use or operation of an automobile owned by the insured named in the contract and within the description or defini tion thereof in the policy, a first loss insurance, and insur ance attaching under any other valid motor vehicle liability policy is excess insurance only.

(2) Subject to sections 300, 305c and 305d and to subsec tion (1) of this section, if the insured named in a contract has or places any other valid insurance, whether against liability for the ownership, use or operation of or against loss of or damage to an automobile or otherwise, of his interest in the subject matter of the contract or any part thereof, the insurer is liable only for its rateable proportion of any liability, expense, loss or damage.

Subrogation 305l. (1) an insurer who makes any payment or assumes liability therefor under a contract is subrogated to all rights of recovery of the insured against any person and may bring action in the name of the insured to enforce those rights.

(2) Where the net amount recovered whether by action or on settlement is, after deduction of the costs of the re covery, not sufficient to provide complete indemnity for the loss or damage suffered, the amount remaining shall be divided between the insurer and the insured in the propor tion in which the loss or damage has been borne by them.

(3) Where the interest of an insured in any recovery is limited to the amount provided under a clause in the contract to which

section 305 applies, the insurer shall have control of the action. ( 4) Where the interest of an insured in any recovery exceeds that referred to in subsection (2) and the insured and the insurer cannot agree as to (

a) the solicitors to be instructed to bring the action in the name of the insured, or (

b) the conduct and carriage of the action or any mat ters pertaining thereto, or (

c) any offer of settlement or the apportionment there of, whether action has been commenced or not, or (

d) the acceptance of any money paid into court or the apportionment thereof, or (

e) the apportionment of costs, or (

I) the launching or prosecution of an appeal, either party may apply to the Supreme Court for the de termination of the matters in question, and the court shall 25

Sect:ion 305k. This corresponds to

section 300 of the Act.

Section 3051. This ,corresponds to

section 290 of the Act. There have, however, been some changes consequent upon the fact that certain limited accident coverages have been provided under the Bill. The provisions of this

section will deal with the carriage of the action. 25

make such order as it considers reasonable having regard to the interests of the insured and the insurer in any recovery in the action or proposed action or in any offer of settlement.

(5) On an application under subsection (4), the only parties entitled to notice and to be heard thereon are the insured and the insurer, and no material or evidence used or taken upon the application is admissible upon the trial of an action brought by or against the insured or the in surer.

(6) A settlement or release given before or after an action is brought does not bar the rights of the insured or the in surer, as the case may be, unless they have concurred therein. 9.

Part VII of The Alberta Insurance Act as it was in force immediately before the day on which

section 8 comes into force continues to apply to contracts of automobile insurance made before the day on whieh

section 8 comes into force until the contract expires or is cancelled or renewed. 10. Secion 307, subsection (2) is amended by striking out clause (

e) and by substituting the following: (

e) insurance provided under

section 305b, 305c or 305d. 11. Sections 320i and 347 are repealed. 12.

Schedule D is struck out. 13. This Act comes into force on a day to be fixed by Proclama tion. 26

9. Exception of existing contracts. 10. Cr·oss references are changed to conform to the new

section numbers. II. The subject matter of the repealed sections is covered in the new sections 187a to 187d. See clause 6 of this Bill. 12. The present automobile statutory conditions are repealed. 26 Title: 1967 (15th, 5th) Bill 16,

An Act to amend The Alberta Insurance Act

Document details

Collection	Alberta — Bills
Citation	L15 S5 1217
Type	bill
Volume / chapter	L15 S5 1217
Language	en
Format	json
Source	PROVINCIAL
Identifier	edd9d6b9f5e8b042e2def7478741eb239a82c894

Source file is stored in the law ingest library (json).