Is There Coverage In An Automobile Insurance Policy to Protect Injury Victims?
Automobile Insurance Policies In Ontario Provide a Schedule of Statutory Benefits As Coverage to Protect Accident Victims.
Understanding the Statutory Accident Benefits Schedule Protection Available to Automobile Accident Victims
In Ontario, injuries arising from an automobile incident, whether the injured person was a vehicle occupant, pedestrian, or cyclist, the Insurance Act, R.S.O. 1990, c. I.8, prescribes certain accident benefits protection. The accident benefits coverage within an automobile insurance policy, commonly referred to as SABS, being an acronym for the Statutory Accident Benefits Schedule, O. Reg. 34/10 ("SABS"), are a compulsory requirement for every automobile, motorcycle, snowmobile, among other things, operating on roadways and other than purely private lands, provides protection for the losses and expenses arising from injuries.
Negotiating for the full SABS as are deserved from an insurance company, and handling the claims adjuster who is appointed to protect the interests of the insurance company, requires an intermediary with a strong working knowledge of the statutory coverage provided under the Ontario law as well as advocacy and administrative skills including an understanding of various medical conditions, rehabilitation processes, and abbreviations as the many standard terms used upon insurance sector and health care sector documents. Additionally, whereas the SABS may be standardized, individual with injuries as the victims of automobile accidents are unique rather than standard and thus much more than a cookie-cutter approach is required so to ensure against any nickel-and-diming that insurance companies are often accused of. A professional legal representative on the side of an injured accident victim helps to ensure that an insurance company is pushed to provide proper coverage promptly without undue delay.
Qualifying for Coverage
Generally, all persons injured in an incident involving an Ontario registered and insured automobile are entitled to SABS coverage; however, a common misperception is that a person must claim the SABS coverage from the vehicle involved within the incident. This is untrue. Under the Ontario no-fault regime, the SABS coverage is provided in accordance to a priority schedule. Per the priority schedule, an injured person is first required to make claim for SABS coverage from the insurer providing an insurance policy to that person - this is required regardless of the vehicle the person was injured in, or by. For example, if Bob is insured by ABC Insurance Company and is traveling in an automobile owned by Joe, that is insured by XYZ Insurance company, and becomes injured within an accident involving the automobile owned by Joe, the insurer that Bob must seek SABS coverage from is ABC Insurance Company, being the insurer of Bob, rather than from XYZ Insurance Company as the insurer of Joe. This priority requiring that a person claim from their own insurance is the requirement regardless of whether Joe caused the accident that injured Bob or whether the accident was caused by some other driver involving some other vehicle. Again, this priority is counter-intuitive to most people who will, wrongfully, presume that the SABS coverage comes from the insurer of the vehicle responsible for causing the incident.
Priority of Payment
With the above said, there are incidents that involve persons who are without automobile insurance, such as those persons who are simply without insurance because the person is in an automobile. In these situations, the SABS coverage remains available per the priority of payment schedule, essentially a pecking order, which requires that the person make claim in accordance to the requirements prescribed in section 268(2) of the Insurance Act as follows:
Liability to Pay
268(2) The following rules apply for determining who is liable to pay statutory accident benefits:
1. In respect of an occupant of an automobile,
i. the occupant has recourse against the insurer of an automobile in respect of which the occupant is an insured,
ii. if recovery is unavailable under subparagraph i, the occupant has recourse against the insurer of the automobile in which he or she was an occupant,
iii. if recovery is unavailable under subparagraph i or ii, the occupant has recourse against the insurer of any other automobile involved in the incident from which the entitlement to statutory accident benefits arose,
iv. if recovery is unavailable under subparagraph i, ii or iii, the occupant has recourse against the Motor Vehicle Accident Claims Fund.
2. In respect of non-occupants,
i. the non-occupant has recourse against the insurer of an automobile in respect of which the non-occupant is an insured,
ii. if recovery is unavailable under subparagraph i, the non-occupant has recourse against the insurer of the automobile that struck the non-occupant,
iii. if recovery is unavailable under subparagraph i or ii, the non-occupant has recourse against the insurer of any automobile involved in the incident from which the entitlement to statutory accident benefits arose,
iv. if recovery is unavailable under subparagraph i, ii or iii, the non-occupant has recourse against the Motor Vehicle Accident Claims Fund.
(3) An insurer against whom a person has recourse for the payment of statutory accident benefits is liable to pay the benefits.
Choice of Insurer
(4) If, under subparagraph i or iii of paragraph 1 or subparagraph i or iii of paragraph 2 of subsection (2), a person has recourse against more than one insurer for the payment of statutory accident benefits, the person, in his or her absolute discretion, may decide the insurer from which he or she will claim the benefits.
(5) Despite subsection (4), if a person is a named insured under a contract evidenced by a motor vehicle liability policy or the person is the spouse or a dependant, as defined in the Statutory Accident Benefits Schedule, of a named insured, the person shall claim statutory accident benefits against the insurer under that policy.
(5.1) Subject to subsection (5.2), if there is more than one insurer against which a person may claim benefits under subsection (5), the person, in his or her discretion, may decide the insurer from which he or she will claim the benefits.
(5.2) If there is more than one insurer against which a person may claim benefits under subsection (5) and the person was, at the time of the incident, an occupant of an automobile in respect of which the person is the named insured or the spouse or a dependant of the named insured, the person shall claim statutory accident benefits against the insurer of the automobile in which the person was an occupant.
(6) The insurance mentioned in subsection (1) is excess insurance to any other insurance not being automobile insurance of the same type indemnifying the injured person or in respect of a deceased person for the expenses.
Alternatively, the opposite situation could arise where an injured person has recourse against multiple insurers with which the injured person is an insured. This could occur, and where this situation exists usually does occur, where a person carries multiple insurance policies with multiple insurers; such as, for example, when Bob (from our example above) carries live coverage with XYZ Insurance Company and ABC Insurance Company but is injured while an occupant of a third party vehicle. In this situation, per section 268(4) of the Insurance Act, Bob is entitled to make a choice of which insurer to claim from, XYZ or ABC.
The coverage available under the SABS section of an automobile policy is prescribed by the Insurance Act which contains certain statutory limits and conditions, with optional limits available (review with your insurance provider), and which includes protection against, among other things, losses of income (time off work), medical expense, rehabilitation expenses, pharmaceutical expenses.
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