Car insurance claims in New Brunswick

New Brunswick keeps the ordinary tort action and caps one part of it. Every contract evidenced by a motor vehicle liability policy must insure, in respect of any one accident, to a limit of at least $200,000 exclusive of interest and costs, against liability for bodily injury, death and loss of or damage to property (Insurance Act, s. 243(1)). That is a single combined limit — less than half Nova Scotia’s $500,000 next door — and the Act divides it: claims for bodily injury or death have priority over property claims to the extent of $180,000, and property claims have priority over injury claims to the extent of $20,000. An insurer may instead write two separate limits of at least $200,000 each, one for injury and one for property, which is a materially better policy for the same statutory compliance (s. 243(2)–(3)). Every such policy must also provide coverage against uninsured and unidentified motorists, reaching anyone in the insured car and the named insured’s resident spouse and dependent relatives — though a car owned or registered to the insured or the spouse is not an «uninsured automobile», and «unidentified» means the identity of either the owner or the driver cannot be ascertained (s. 255).

The cap is the distinctive feature. In an action for damages arising out of an accident, the amount recoverable for the plaintiff’s non-pecuniary loss for minor personal injury may not exceed the amount set out in the regulations (s. 265.21(3)). The regulation defines «minor personal injury» as any of six injuries, including any clinically associated sequelae, that do not result in serious impairment or in permanent serious disfigurement: a contusion, an abrasion, a laceration, a sprain, a strain, and a whiplash associated disorder — the last defined as a whiplash injury showing no objective, demonstrable, definable and clinically relevant neurological signs and no fracture or dislocation of the spine. That list is twice as long as Nova Scotia’s, which caps only sprains, strains and whiplash-associated disorders. The escape is «serious impairment»: an impairment of physical or cognitive function resulting in a substantial inability to perform the essential tasks of the plaintiff’s regular employment, or of their training or education, or their normal activities of daily living — in each case despite reasonable efforts to use any accommodation provided. As to the amount, accidents between 1 July 2003 and 30 June 2013 are capped at $2,500; accidents from 1 July 2013 are capped at a base of $7,500, adjusted every 1 January since 2015 by the New Brunswick all-items Consumer Price Index, fixed by the calendar year in which the accident occurred, and published each year by the Superintendent by 31 January. So the figure that applies to a given crash is the published amount for that crash’s year, not the number in the regulation.

The deadlines come from two places. On the tort claim, no claim may be brought after the earlier of two years from the day the claim is discovered and fifteen years from the act or omission; a claim is discovered when the claimant first knew or ought reasonably to have known that the loss occurred, that it was caused or contributed to by an act or omission, and that the act or omission was the defendant’s (Limitation of Actions Act, s. 5). Note that New Brunswick’s discovery test has three limbs where Nova Scotia’s has four — Nova Scotia adds knowing that the loss is serious enough to warrant a proceeding, and New Brunswick does not. On the policy, an action against the insurer for damage to the automobile must be commenced within two years after the happening of the loss, and in respect of loss or damage to persons or property within two years after the cause of action arose (statutory condition 6(3)).

On the property side of a claim, the insured must deliver a statutory declaration within ninety days of the loss, stating the place, time, cause and amount and disclosing all other insurance whether valid or not, and compliance is a precondition to suing. The insurer must pay what it owes within sixty days of receiving the proof of loss, or within fifteen days of an appraisal award. Three further rules shape the negotiation: the insurer has seven days after the proof of loss to give written notice that it will repair or replace rather than pay; the car may not be abandoned to the insurer without its consent, and salvage vests in the insurer if it replaces or pays actual cash value; and any disagreement about the repairs or the amount must be determined by appraisal before there can be any recovery, with the right to an appraisal arising only on a written demand made after the proof of loss has been delivered (statutory conditions 4 and 6). After a crash, a driver involved in an accident causing injury, death, or total property damage to an apparent extent of $2,000 or more must immediately, by the quickest means available, notify the local police — or the RCMP outside a municipality or region — giving their own name and address and the vehicle owner’s, and must make a written accident report if a police officer asks for one (Motor Vehicle Act, s. 130(1)). The threshold is the crash’s total property damage, not one person’s, and the written report is owed only on a police request.

Shared fault reduces a New Brunswick award; it never extinguishes it. Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault, and if, having regard to all the circumstances, it is not possible to establish different degrees of fault, the liability is apportioned equally (Contributory Negligence Act, R.S.N.B. 1973, c. C-19, s. 1(1)). Nothing in that section makes anyone liable for damage to which their fault did not contribute (s. 1(2)). There is no threshold at which a claimant’s own share bars recovery: a driver found mostly at fault still recovers the balance, reduced by their share. The court determines each person’s degree of fault, and where two or more are at fault they are jointly and severally liable to the injured person, contributing between themselves in proportion to fault (s. 2). The amount of loss, the fault and the degrees of fault are questions of fact (s. 5), a non-party who may be wholly or partly responsible may be added as a defendant or third party on such terms as may be deemed just (s. 6), and unless the judge directs otherwise the liability for costs follows the same proportion as the liability for the loss (s. 7(2)) — so a partial-fault finding costs a claimant twice over. The apportionment and the minor-injury cap are separate steps and run in that order: apportion first under c. C-19, then cap the non-pecuniary component under s. 265.21 of the Insurance Act. The imputation of one spouse’s fault to the other, once s. 4 of the Act, was repealed in 1995, and s. 3 in 1985; neither may be described as live.

Four things are deliberately absent from this row. New Brunswick’s automobile accident benefits — the medical, income-replacement, death and funeral amounts and their own notice and payment clocks, which are set by the Standard Automobile Policy prescribed by regulation — have not yet been verified against a primary text and are not stated here, because no such regulation was opened. The limit attaching to the compulsory uninsured and unidentified motorist coverage has not yet been verified against a primary text and is not stated here. The cap amount for the relevant accident year, which only the Superintendent’s annual publication fixes and which must not be computed from the $7,500 base, has not yet been verified against a primary text and is not stated here. And whether inherent diminished value is recoverable has not yet been verified against a primary text and is not stated here; nothing read removes the right of action against the other driver for vehicle damage, unlike Nova Scotia, but no search for the term was run and no opinion was read. Complaints go to the New Brunswick Financial and Consumer Services Commission, which regulates insurance along with the rest of the province’s financial sector and takes complaints through its own form.