Car insurance claims in Newfoundland and Labrador

Newfoundland and Labrador keeps the ordinary tort action and reduces one part of every award. A contract evidenced by a motor vehicle liability policy insures, in respect of an accident, to the limit of $200,000, exclusive of interest and costs, against liability for bodily injury, death and loss of or damage to property (Automobile Insurance Act, s. 21(1)). That single combined limit is divided by the Act itself: 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 specify two separate limits of at least $200,000 each, one for injury and one for property; and while a named-driver endorsement may raise or lower an excess limit, no reduction can take the policy below the statutory minimum (s. 21(2)–(4)). Every such policy must also cover uninsured and unidentified motorists, reaching occupants of the insured car and the named insured’s resident spouse and dependent relatives — but note the asymmetry: bodily injury is covered against both uninsured and unidentified vehicles, while damage to your own car is covered only against an identified uninsured owner or driver, so a hit-and-run leaves the vehicle damage outside this coverage.

The distinctive feature is a deductible, not a cap, and the difference matters. In an action in the province for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the damages to which a plaintiff is entitled for non-pecuniary loss «shall be reduced by the amount the Lieutenant-Governor in Council may set by regulation» (s. 39.1). There is no minor-injury definition, no threshold and no class of injury singled out: the reduction applies to every motor claim, subtracted off the top of whatever the award for pain and suffering would otherwise be. That is mechanically different from the minor-injury caps in Nova Scotia and New Brunswick, which limit non-pecuniary damages for a defined list of injuries and leave everything else untouched. A claimant with a large non-pecuniary award in this province loses the deductible from it; a claimant with a small one may end up with nothing for non-pecuniary loss at all.

That deductible has a figure, and it is the province’s own regulation that fixes it. For the purpose of section 39.1, the amount by which the damages to which a plaintiff is entitled in relation to each cause of action for non-pecuniary loss or damage is reduced is $5,000 for loss or damage sustained on or after 1 January 2020, and $2,500 for loss or damage sustained on or after 1 August 2004 and before 1 January 2020 (Automobile Insurance Regulations, 2019, N.L.R. 56/19, s. 8). Two things follow. The amount is flat in the regulation — it is not indexed and no annual publication sets it — so unlike the minor-injury caps in Nova Scotia, New Brunswick and Prince Edward Island it can be stated plainly. And the mechanism differs from a cap in the direction that matters to a claimant: a deductible is subtracted from the non-pecuniary award for each cause of action, so a person whose proven non-pecuniary loss exceeds $5,000 recovers the excess, where a capped province pays no more than the cap however serious the loss.

The deadlines run on two tracks. On the tort claim, no action for damages in respect of injury to a person or property — including economic loss arising from the injury, whether based on contract, tort or statutory duty — may be brought after two years from the date the right to do so arose (Limitations Act, s. 5(a)). But for personal injury and property damage the period «does not begin to run against a person until the person knows or, considering all circumstances of the matter, ought to know that the person has a cause of action» (s. 14(1)), so in practice it is a discovery rule. The outer limit is thirty years from when the event giving rise to the cause of action last occurred — twice the fifteen years that both Nova Scotia and New Brunswick impose. On the policy, an action against the insurer for indemnity must be started within two years after the insured’s liability is established by a court, and an action for damage to the automobile within two years from when the loss was sustained; neither runs from the accident. 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 the insurer must pay what it owes within sixty days of receiving the proof of loss. One further clock favours the claimant: where the insurer has a person medically examined and receives a report, it must ensure the person receives a copy within sixty days of the insurer receiving it.

After a crash, where an accident results in injury or death or in property damage to an apparent extent of $2,000 or more, the driver must immediately make a written report to the nearest peace officer having jurisdiction where the accident occurred. The duty cascades: if the driver is incapable and a capable occupant is present, the occupant makes it; if neither has and the driver or occupant is not the owner, the owner must make it immediately on learning of the accident; and an incapable owner-driver who was alone must make it as soon as they become capable (Highway Traffic Act, s. 170). A cyclist’s equivalent threshold is much lower, at total damage apparently exceeding $250. The investigating peace officer must immediately forward a full-particulars report to the Chief of Police or the RCMP Officer Commanding, including the names and addresses of the persons involved and the extent of the injuries or damage — which is how a claimant identifies the other party.

Shared fault reduces an award here and never bars 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; where, having regard to the circumstances, it is not possible to establish different degrees of fault, the liability is apportioned equally; and nothing in that section makes a person liable for damage to which his or her fault has not contributed (Contributory Negligence Act, R.S.N.L. 1990, c. C-33, s. 2). No percentage of a claimant’s own fault defeats the claim. The court determines the degree in which each person was at fault, and where two or more are found at fault they are jointly and individually liable to the person suffering the loss — the Act’s own older phrase for joint and several liability — and contribute between themselves in proportion to fault (s. 3). Fault and its degrees are questions of fact (s. 4). Costs follow the apportionment unless the judge directs otherwise, and where one party is owed an excess of damages and the other an excess of costs the two are set off against each other (s. 8). The province handles last clear chance more narrowly than by abolition: the question whether one party could have avoided the consequences of the other’s fault may not be put to a jury, or considered by a judge sitting alone, unless the later act or omission was clearly subsequent to and severable from the earlier one, so as not to be substantially contemporaneous with it (ss. 5 and 6) — which in an ordinary collision, where the acts are contemporaneous, means it does not arise. A non-party who may be wholly or partly responsible can be added as a defendant or third party on terms considered just (s. 7). Apportionment and the section 39.1 deductible are separate steps in that order: apportion under c. C-33, then apply the deductible to the non-pecuniary component.

Complaints go to the Office of the Superintendent of Insurance, and its own page is unusually candid about the limits of what it can do: its involvement «is limited to our authority under insurance legislation», which «does not provide us with the authority to settle civil matters where determining liability (e.g. who is at fault) or restitution (e.g. award damages) is the issue». It asks consumers to work through their insurer’s own complaints division first, then the insurer’s ombudsman, then the General Insurance OmbudService, and only then to file a written complaint with the Superintendent. Two things are deliberately absent from this row. The province’s compulsory accident benefits — the medical, income-replacement, death and funeral amounts — are set by the Superintendent’s approved policy forms and have not yet been verified against a primary text, so they are not stated here. And whether inherent diminished value is recoverable has not yet been verified against a primary text and is not stated here, though note that the deductible bites only on non-pecuniary loss and so would not reach such a claim.