In Bill 41, the Alberta
government has proposed changes designed to reduce the price of
auto insurance through restricting some claims, making litigation
less complex, and reducing damage awards. The definition of
"minor injury" has been expanded to encompass injuries
which are "clinically associated sequelae of the sprain,
strain or WAD injury, whether physical or psychological in nature,
caused by the accident that do not result in a serious
impairment". This definition is similar to Ontario's
and New Brunswick's except that Bill 41 includes psychological
injuries.
Neither Ontario's nor New Brunswick's courts have
interpreted the term "clinically associated sequelae."
There are decisions from Ontario's License Appeal
Tribunal ("LAT") which are not binding and may not be
given much weight in Alberta. The LAT has tended to interpret
"clinically associated sequelae" to mean injuries listed
in the minor injury guideline that developed into more serious
conditions. However, the LAT has tended to exclude chronic
pain and similar conditions from being "clinically associated
sequelae" due to the duration it takes for these symptoms to
develop. Many psychological injuries such as concussions or
psychological disorders will probably not be considered minor
injuries for similar reasons.
Bill 41 limits each party to either one to three expert witnesses
depending on if the claim exceeds $100,000. However, a party can
retain more experts if they get permission from the court or if all
parties agree. The court will likely allow additional witnesses if
these experts provide new insight.
Presently, if a not-at-fault motorist in Alberta has an accident,
their insurer pays for repairs to their vehicle and its contents
and then pursues a subrogated claim against the at-fault driver.
Bill 41 will require the insurer pay the insured for any
damage to their vehicle and its contents regardless of fault.
However, recovery is limited to the insured's degree of
fault unless the insured has all-perils or collision coverage. The
insured can pursue an action against their insurer if they are not
satisfied with the degree of fault. Both parties then have to
agree to appoint an umpire to resolve the dispute.
Prejudgment interest for "pain and suffering damages" for
automobile accidents will begin accruing on the earlier of when the
statement of claim is served on the defendant or when the claimant
provides notice to the defendant's insurer of their intent to
make a claim instead of the date of the accident. Interest will now
be at the rate for quantifiable damages. Presently this is
around 1.5% per year. Previously, interest on "pain and
suffering damages" was 4% per year.
Dentists, psychologists, and occupational therapists are now
providers of adjunct therapy. Each claimant is limited to
$1,000 in coverage from these providers. Previously, these
treatments were included in the $50,000 for all reasonable expenses
incurred within two years of the accident. Now, the auto
insurer will only be responsible for $1,000 combined between any
dental, psychological, or occupational therapist treatment before
either the claimant pays out-of-pocket or through a collateral
benefits insurer. This change will decrease special damages
awards if the claimant has collateral benefits insurance because
they will usually pay for these treatments. If the claimant pays
out-of-pocket, these payments will become special damages.
Bill 41 provides many changes to Alberta's auto insurance regime. These changes may assist insurers to retain fewer experts, provide less Section B benefits, and have more injuries included in the minor injury cap. However, the changes to the minor injury cap will not serve to restrict more serious injuries such as most concussions or long-lasting psychological disorders.
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