BILL NO. 186
(as introduced)
1st Session, 59th General Assembly
Nova Scotia
54 Elizabeth II, 2005
Insurance Act
(amended)
Darrell Dexter
Cole Harbour
First Reading: May 4, 2005
Second Reading:
Third Reading:
Explanatory Notes
Clauses 1 and 2 repeal amendments to the Insurance Act respecting a minor injury cap.
Clause 3 repeals the power of the Governor in Council to determine "Section B Accident Benefits" by regulation. Clause 4 empowers the Nova Scotia Insurance Review Board to inquire into the rates of an individual insurer. Clause 5 sets out the "Section B Accident Benefits" in the Insurance Act as they were immediately before being repealed by the Automobile Insurance Reform Act. Clause 6 repeals amendments to the Judicature Act enabling damages for personal injuries or for death to be paid in whole or in part by periodic payments.An Act to Amend Chapter 231
of the Revised Statutes, 1989,
the Insurance Act,
and Chapter 240
of the Revised Statutes, 1989,
the Judicature Act
1 (1) Subsection 16F(1) of Chapter 231 of the Revised Statutes, 1989, the Insurance Act, as enacted by Chapter 1 of the Acts of 2003 (Second Session), is amended by striking out " No member shall be directly or indirectly employed by or interested in an insurance company" in the first and second lines and substituting "No member and no member of the member's immediate family shall be directly or indirectly employed by an insurance company, or by the Insurance Bureau of Canada or any of its affiliated organizations, or interested in or, for greater certainty, be an agent, adjuster, underwriter or broker for an insurance company".
(2) Subsection 16F(2) of Chapter 231, as enacted by Chapter 1, is amended by adding "disclose or" immediately after "to" in the first line.
2 Sections 113A to 113D of Chapter 231 are repealed.
3 Subsection 140(1) of Chapter 231, as amended by Chapter 1 of the Acts of 2003 (Second Session) , is further amended by striking out "regulations made by the Governor in Council, which shall be printed in every policy under the heading "Section B - Accident Benefits"" in the sixth, seventh and eighth lines and substituting "the Schedule to this Part, as the coverage in the Schedule may be added to or increased from time to time by the Governor in Council".
4 Subsection 157(1) of Chapter 231, as amended by Chapter 1 of the Acts of 2003 (Second Session) , is further amended by adding "or of any individual insurer" immediately after "Province" in the last line.
5 Chapter 231 is further amended by adding immediately after Section 159B the following heading and Schedule:
MANDATORY MEDICAL AND REHABILITATION
BENEFITS, AND ACCIDENT BENEFITS IN
MOTOR VEHICLE LIABILITY POLICIES
The Insurer agrees to pay to or with respect to each insured person as defined in this section who sustains bodily injury or death by an accident arising out of the use or operation of an automobile:
AND FUNERAL EXPENSES
1 All reasonable expenses incurred within four years from the date of the accident as a result of such injury for necessary medical, surgical, dental, chiropractic, hospital, professional nursing and ambulance service and for any other service within the meaning of insured services under the Health Services and Insurance Act and for such other services and supplies which are, in the opinion of the physician of the insured person's choice and that of the Insurer's medical advisor, essential for the treatment, occupational retraining or rehabilitation of said person, to the limit of $25,000 per person.
2 Funeral expenses incurred up to the amount of $l,000 in respect of the death of any one person.
The Insurer shall not be liable under this subsection for those portions of such expenses payable or recoverable under any medical, surgical, dental, or hospitalization plan or law or, except for similar insurance provided under another automobile insurance contract, under any other insurance contract or certificate issued to or for the benefit of, any insured person.
LOSS OF INCOME PAYMENTS
A. Subject to the provisions of this Part, for death that ensues within 180 days of the accident or within 104 weeks of the accident if there has been continuous disability during that period, a payment - based on the status at the date of the accident of the deceased in a household where a head of the household, spouse or common-law partner or dependants survive - of the following amounts:
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Spouse or common-law partner 10,000 |
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Dependant within the meaning of sub- |
In addition, with respect to death of the head of the household, where there are two or more survivors spouse or common-law partner or dependants the principal sum payable is increased $1,000 for each survivor other than the first.
B. For the purposes of this Part,
(1) "spouse or common-law partner of the head of the household" means the spouse or common-law partner with the lesser income from employment in the twelve months preceding the date of the accident.
(2) repealed 2000, c. 29, s. 23.
(a) the spouse or common-law partner of the head of the household who resides with the head of the household;
(ii) 18 years of age or over who, because of mental or physical infirmity, is principally dependent upon the head of the household or the spouse or common-law partner of the head of the household for financial support, or
(iii) 18 years of age or over who, because of full-time attendance at a school, college or university, is principally dependent upon the head of the household or the spouse or common-law partner of the head of the household for financial support; or
(ii) of the spouse or common-law partner of the head of the household,
residing in the same dwelling premises and principally dependent upon the head of the household or the spouse or common-law partner of the head of the household for financial support.
(4) The total amount payable shall be paid to a person who is the head of the household or the spouse or common-law partner of the head of the household, as the case may be, if that person survives the deceased by at least 30 days.
(5) The total amount payable with respect to death where no head of the household or spouse or common-law partner survives the deceased by at least 30 days shall be divided equally among the surviving dependants.
(6) No amount is payable on death, other than incurred funeral expenses, if no head of the household or dependant survives the deceased by at least 30 days.
Subject to the provisions of this Part, a weekly payment for the loss of income from employment for the period during which the insured person suffers substantial inability to perform the essential duties of his occupation or employment, provided,
(a) such person was employed at the date of the accident;
(b) within 30 days from the date of the accident and as a result of the accident the insured person suffers substantial inability to perform the essential duties of his occupation or employment for a period of not less then seven days;
(c) no payments shall be made for any period in excess of 104 weeks except that if, at the end of the 104 week period, it has been established that such injury continuously prevents such person from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, the Insurer agrees to make such weekly payments for the duration of such inability to perform the essential duties.
Amount of Weekly Payment - The amount of a weekly payment shall be the lesser of,
(b) 80 per cent of the insured person's gross weekly income from employment, less any payments for loss of income from employment received by or available to such person under,
(ii) wage or salary continuation plans available to the person by reason of his employment, and
but no deduction shall be made for any increase in such payment due to a cost of living adjustment subsequent to the insured person's substantial inability to perform the essential duties of his occupation or employment.
(1) there shall be deducted from an insured person's gross weekly income any payments received by or available to him from part-time or other employment or occupation subsequent to the date of the accident;
(2) a principal unpaid housekeeper residing in the household not otherwise engaged in occupation or employment for wages or profit, if injured, shall be deemed disabled only if completely incapacitated and unable to perform any of his or her household duties and, while so incapacitated, shall receive a benefit at the rate of $70 per week for not more than 12 weeks;
(3) a person shall be deemed to be employed,
(a) if actively engaged in an occupation or employment for wages or profit at the date of the accident; or
(b) if 18 years of age or over and under the age of 65 years, so engaged for any six months out of the preceding 12 months and in these circumstances shall be deemed to have suffered loss of income at a rate equal to that of his most recent employment earnings;
(4) a person receiving a weekly payment who, within 30 days of resuming his occupation or employment is unable to continue such occupation or employment as a result of such injury, is not precluded from receiving further weekly payments;
(5) where the payments for loss of income payable hereunder, together with payments for loss of income under another contract of insurance other than a contract of insurance relating to any wage or salary continuation plan available to an insured person by reason of his employment, exceed the actual loss of income of the insured person, the insurer is liable only for that proportion of the payments for loss of income stated in this policy that the actual loss of income of the person insured bears to the aggregate of the payments for loss of income payable under all such contracts.
RESPECTING ACCIDENTS OCCURRING IN QUEBEC
This subsection comes into force and is effective only in accordance with a written agreement between the Government of Nova Scotia and the Government of Quebec or an agency thereof.
A. For the purposes of this Part,
(a) "accident" means an event occurring in Quebec resulting in damage caused by an automobile, or by the use of an automobile, or by the load of an automobile, including damage caused by a trailer;
(b) "bodily injury" means physical, psychological or mental injury including death as well as damage to the clothing worn by the victim at the time of the accident;
(c) "resident of Nova Scotia" means any person,
(ii) who meets the criteria prescribed in Division II of O.C. 374-78 made under the Automobile Insurance Act (Quebec), which apply with necessary modifications,
but does not include a person,
(iii) who is merely touring, passing through or visiting Nova Scotia, or
(iv) who is, at the time of an accident in Quebec, the owner or driver of, or a passenger in, an automobile registered in Quebec;
(d) "person insured in Quebec" means a resident of Nova Scotia who is
(ii) the insured and, if residing in the same dwelling premises as the insured, his or her spouse or common-law partner and any dependent relative of either while an occupant of any other automobile,
(iii) any person, not the occupant of an automobile, who is struck by the described automobile or a newly acquired or temporary substitute automobile as defined in this policy,
(iv) the named insured, if an individual, and his or her spouse or common-law partner and any dependent relative residing in the same dwelling premises as the named insured, not the occupant of an automobile who is struck by any other automobile,
(v) if the insured is a corporation, unincorporated association, or partnership, any employee or partner of the insured for whose regular use the described automobile is furnished, and his or her spouse or common-law partner and any dependent relative of either, residing in the same dwelling premises as such employee or partner, while an occupant of any other automobile,
(vi) any employee or partner of the insured for whose regular use the described automobile is furnished, and his or her spouse or common-law partner and any dependent relative of either, residing in the same dwelling premises as such employee or partner, while not the occupant of an automobile who is struck by any other automobile, and
(vii) any other person who is,
b. not being the occupant of an automobile, is struck by an automobile,
driven by a person insured in Quebec as defined in sub-subparagraphs (i) to (vi) of this subparagraph.
Notwithstanding anything to the contrary, an exclusion or limitation existing in this Schedule B or in the general provisions, definitions and statutory conditions of a contract of automobile insurance shall not apply to a person insured in Quebec as defined in this subsection 2A.
DEFINITIONS, AND EXCLUSIONS OF THIS SECTION
In this section, the words "insured person" mean
(a) any person while an occupant of the described automobile or of a newly acquired or temporary substitute automobile as defined in this policy;
(b) the insured and, if residing in the same dwelling premises as the insured, his or her spouse or common-law partner and any dependent relative of either while an occupant of any other automobile; provided that,
(ii) such person is not engaged in the business of selling, repairing, maintaining, servicing, storing, or parking automobiles at the time of the accident,
(iii) such other automobile is not owned or regularly or frequently used by the insured or by any person or persons residing in the same dwelling premises as the insured,
(iv) such other automobile is not owned, hired, or leased by an employer of the insured or by an employer of any person or persons residing in the same dwelling premises as the insured,
(v) such other automobile is not used for carrying passengers for compensation or hire or for commercial delivery;
(c) in subsections 1, 2 and 2A of this section only, any person, not the occupant of an automobile or of railway rolling-stock that runs on rails, who is struck, in Canada, by the described automobile or a newly acquired or temporary substitute automobile as defined in the policy;
(d) in subsections 1, 2 and 2A of this section only, the named insured, if an individual and his or her spouse or common-law partner and any dependent relative residing in the same dwelling premises as the named insured, not the occupant of an automobile or of railway rolling-stock that runs on rails, who is struck by any other automobile; provided that
(ii) that automobile is not owned or regularly or frequently used by the insured or by any person or persons residing in the same dwelling premises as the named insured,
(iii) that automobile is not owned, hired, or leased by an employer of the insured or by an employer of any person or persons residing in the same dwelling premises as the named insured;
(e) if the insured is a corporation, unincorporated association, or partnership, any employee or partner of the insured for whose regular use the described automobile is furnished, and his or her spouse or common-law partner and any dependent relative of either, residing in the same dwelling premises as such employee or partner, while an occupant of any other automobile of the private passenger or station wagon type; and
(f) in subsections 1, 2 and 2A of this section only, any employee or partner of the insured, for whose regular use the described automobile is furnished, and his or her spouse or common-law partner and any dependent relative of either, residing in the same dwelling premises as such employee or partner, while not the occupant of an automobile or of railway rolling-stock that runs on rails, who is struck by any other automobile; provided that, in respect of (e) and (f) above,
(ii) the described automobile is of the private passenger or station wagon type,
(iii) such person is not engaged in the business of selling, repairing, maintaining, servicing, storing, or parking automobiles at the time of the accident,
(iv) such other automobile is not owned or regularly or frequently used by the employee or partner, or by any person or persons residing in the same dwelling premises as such employee or partner,
(v) such other automobile is not owned, hired, or leased by the insured or by an employer of any person or persons residing in the same dwelling premises as such employee or partner of the insured,
"physician" means legally qualified medical practitioner.
(a) Except as provided in subsection 2A, the Insurer shall not be liable under this section for bodily injury to or death of any person,
(ii) who is entitled to receive the benefits of any worker's compensation law or plan,
(iii) caused directly or indirectly by radioactive material;
(b) The Insurer shall not be liable under subsection 1 or Part II of subsection 2 of this section for bodily injury or death,
(ii) sustained by any person driving the automobile who is not for the time being either authorized by law or qualified to drive the automobile.
The insured person or his agent, or the person otherwise entitled to make claim or his agent, shall,
(a) give written notice of claim to the Insurer by delivery thereof or by sending it by registered mail to the chief agency or head office of the Insurer in the Province, within 30 days from the date of the accident or as soon as practicable thereafter;
(b) within 90 days from the date of the accident for which the claim is made, or as soon as practicable thereafter, furnish to the Insurer such proof of claim as is reasonably possible in the circumstances of the happening of the accident and the loss occasioned thereby;
(c) if so required by the Insurer, furnish a certificate as to the cause and nature of the accident for which the claim is made and as to the duration of the disability caused thereby from a physician.
The Insurer has the right and the claimant shall afford to the Insurer, an opportunity to examine the person of the insured person when and as often as it reasonably requires while the claim is pending, and also, in the case of the death of the insured person, to make an autopsy subject to the law relating to autopsies.
Notwithstanding any release provided for under the relevant sections of the Insurance Act, the Insurer may demand, as a condition precedent to payment of any amount under this section of the policy, a release in favour of the insured and the Insurer from liability to the extent of such payment from the insured person or his personal representative or any other person.
(a) All amounts payable under this section, other than benefits under Part II of subsection 2, shall be paid by the Insurer within 30 days after it has received proof of claim. The initial benefits for loss of time under Part II of subsection (2) shall be paid within 30 days after it has received proof of claim, and payments shall be made thereafter within each 30-day period while the Insurer remains liable for payments if the insured person, whenever required to do so, furnishes prior to payment proof of continuing disability.
(b) No person shall bring an action to recover the amount of a claim under this section unless the requirements of provisions 3 and 4 of this subsection are complied with, nor until the amount of the loss has been ascertained as provided in this section.
(c) Every action or proceeding against the Insurer for the recovery of a claim under this section shall be commenced within one year from the date on which the cause of action arose and not afterwards.
(8) Limitation on benefit payable
Where a person is entitled to benefits under more than one contract providing insurance of the type set forth in subsection 1, 2 or 2A, he or his personal representative or any person claiming through or under him or by virtue of the Fatal Injuries Act or the Survivorship Act may recover only an amount equal to one benefit.
In so far as applicable the general provisions, definitions, exclusions and statutory conditions of the policy also apply.
6 Sections 35A to 35I of Chapter 240 of the Revised Statutes, 1989, the Judicature Act, are repealed.
This page and its contents published by the Office of the Legislative Counsel, Nova Scotia House of Assembly, and © 2005 Crown in right of Nova Scotia. Created May 4, 2005. Send comments to legc.office@novascotia.ca.
