The Insurance Institute of Canada Ontario Automobile Insurance Textbook Addendum August 2010 (revised)

Transcription

1 The Insurance Institute of Canada Ontario Automobile Insurance Textbook Addendum August 2010 (revised) (To be used with the 2007 edition.) Study 1, page 4, at the end of the excerpt from Section 233 (1) of the Insurance Act add clause (2) as follows: (2) Subsection (1) does not invalidate such statutory accident benefits as are set out in the Statutory Accident Benefits Schedule. Study 1, page 7, under Misrepresentation or violation of conditions renders claim invalid, at the end of Section 233(1) add clause (2) as follows: Section 233. (2) Subsection (1) does not invalidate such statutory accident benefits as are set out in the Statutory Accident Benefits Schedule. Study 1, page 12, under the description of Accident Benefits add items as follows: non-earner benefits caregiver expenses Study 1, page 15, replace the last two paragraphs as follows: To the best of my knowledge, all listed drivers are qualified to hold a driver s licence, and the details in Sections 1 to 6 and 9 are correct. Warning the Insurance Act provides that where (a) an Applicant for a contract, (i) gives false particulars of the described automobile to be insured to the prejudice of the insurer, or (ii) knowingly misrepresents or fails to disclose in the application any fact required to be stated therein; or Study 1, Page 17, replace the last two paragraphs as follows: Page 1 of 8

2 I am applying for automobile insurance based on the information provided above. With respect to this application or any renewal or change to my coverage, I authorize you to collect, use and disclose my driving record, auto insurance history and auto claims history, and those of the listed drivers from whom I declare I have obtained consent for these purposes as permitted by law for the limited purposes necessary to assess the risk, investigate and settle claims, and detect and prevent fraud. The authorization of the applicant is to allow the insurer to obtain relevant information such as past insurance records, driving records, past claims, and convictions, among other information, for the purpose of accurately rating the applicant's automobile insurance premiums, investigating and settling claims, and such other purposes as the law permits. Study 1, page 19, replace the Ontario Application of Automobile Insurance (OAF1) with this document [PDF 77 KB] Study 2, replace study with this document [PDF 141KB] Study 3, replace study with this document [PDF 119KB] Study 4, page 6, after the first paragraph add paragraph as follows: If the stereo is factory installed equipment it is considered part of the vehicle for the purposes of determining the actual cash value for loss or damage. However, if the electronic accessories or equipment are other than factory installed equipment the policy limits the total actual cash value payable for loss or damage to this equipment to a total of $1,500. Study 6, page 2, after the Territory (Where You Are Covered) section, add section as follows: Occupant Defined In the OAP 1, occupant is defined as a person, including the driver, in or on an automobile, or getting into, on, out of, or off an automobile. Study 7, page 12, under Inspection of Automobile replace the paragraph below item 8. as follows: This means both before a loss occurs and after. Under the Regulations insurers have the right to inspect vehicles at any reasonable time. This is intended as a deterrent to fraud. Study 7, page 13, opposite the marginal heading Resolution of disagreement by appraisal under s.128 of the Act replace bullet point (c) as follows: (c) a request in writing that an appraisal be carried out in accordance with section 128 of the Act, (i) is made by the insured, or Page 2 of 8

3 (ii) is made by the insurer and the insured agrees. Study 7, page 13, replace the paragraph below the above noted bullet point as follows: This section sets out the conditions under which the parties can resolve a disagreement by appraisal. The Insurance Act stipulates the appraisal process that involves each party hiring an appraiser to evaluate the matter under dispute. If these appraisers cannot agree on the evaluation both appraisals are then given to an independent third appraiser, or umpire, who decides which appraisal is correct. Study 7, pages14-17, replace the section Termination as follows: Termination Many ordinary commercial contracts do not have provision to allow termination of the contract by either party, but insurance contracts normally do. The insured or the insurer may cancel a policy. At one time insurers did not have to justify a cancellation; this is no longer the case for automobile policies in Ontario. The acceptable reasons for cancellation are very limited and an insurer must get formal exemption from the Superintendent of Insurance if it does not comply with the rules set out in legislation. Exemptions are not readily given and are beyond the scope of this course. The purpose of the next condition is to state in detail what an insurer must take into consideration when terminating an insurance contract, how and when it may proceed with the termination, and the information that must be provided in the notice of termination. 11. (1) Subject to section 12 of the Compulsory Automobile Insurance Act and sections 237 and 238 of the Insurance Act, the insurer may, by registered mail or personal delivery, give to the insured a notice of termination of the contract. Note the specific reference to other legislation. Section 12 (1) of the Compulsory Automobile Insurance Act states: Where a contract of automobile insurance has been in effect for more than 60 days, the insurer may only terminate the contract for one or more of the following reasons: 1. Non-payment of, or any part of, the premium due under the contract or of any charge under any agreement ancillary to the contract. 2. The insured has given false particulars of the described automobile to the prejudice of the insurer. 3. The insured has knowingly misrepresented or failed to disclose in an application for insurance any fact required to be stated therein. Page 3 of 8

4 4. For a material change of risk within the meaning of the statutory conditions referred to in section 234 of the Insurance Act. Sections 237 and 238 of the Insurance Act contain the same provisions as well as setting out the procedures for exemptions from these rules. It immediately becomes clear that an insurer cannot cancel an automobile policy without good cause or it will run into legal difficulties. If there is a valid reason for cancellation, it must be done in strict compliance with the condition. The insurer may terminate a policy by giving written notice either by registered mail or personal delivery. Subcondition (1.1) and (1.2) of Condition 11. spell out the precise amount of time the insurer must give when terminating the contract. (1.1) If the insurer gives a notice of termination under subcondition (1) for a reason other than non-payment of the whole or any part of the premium the notice of termination shall terminate the contract no earlier than, (a) the 15th day after the insurer gives the notice, if the insurer gives the notice by registered mail; or (b) the fifth day after the insurer gives the notice, if the insurer gives the notice by personal delivery. (1.2) Subject to subcondition (1.7), if the insurer gives a notice of termination under subcondition (1) for the reason of non-payment of the whole or any part of the premium the notice of termination shall specify a day for the termination of the contract that is no earlier than, (a) the 30th day after the insurer gives the notice, if the insurer gives the notice by registered mail; or (b) the 10th day after the insurer gives the notice, if the insurer gives the notice by personal delivery. Subcondition (1.7) permits the insurer to terminate the insurance contract for non-payment of premium in accordance with subcondition (1.1) rather than subcondition (1.2) if the insurer has issued termination notices for non-payment on two previous occasions. (2) This contract may be terminated by the insured at any time on request. When an insured wishes to cancel a policy, it may be done at any time on request. There is no requirement in the policy whereby the insured is required to return the policy to the insurer, however, for protection, the insurer should either obtain the policy, signed off by the insured, or obtain written authorization from the insured to cancel. The practice of cancelling by oral instruction is risky, Page 4 of 8

5 because of the difficulty of proving the request for cancellation was in fact made by the insured. (3) Where this contract is terminated by the insurer, (a) the insurer shall refund the excess of premium actually paid by the insured over the proportionate premium for the expired time, but in no event shall the proportionate premium for the expired time be deemed to be less than any minimum retained premium specified; (b) if the termination is for a reason other than non-payment the refund shall accompany the notice, unless the premium is subject to adjustment or determination as to the amount, in which case, the refund shall be made as soon as practicable. (c) if the termination is for the reason of non-payment the refund shall be made as soon as practicable after the effective date of the termination. When the insurer cancels a policy the cancellation and premium refund requirements must be closely followed, otherwise a cancellation may be found invalid. The insurer is required to refund the excess of the premium actually paid over the pro rata premium for the expired time subject to any minimum retained premium stated in the policy. This refund is to accompany the letter of cancellation unless it is subject to adjustment; then it must be made as soon as practicable. Sometimes a registered letter of cancellation is returned to the insurer by the post office because the insured has moved and cannot be located. As long as the insurer has followed the termination provisions, the cancellation is effective, provided the insurer retains evidence of its attempt to notify the insured of termination. In such an event, the returned registered letter of cancellation should not be opened because to do so may destroy the evidence. This was the subject of an actual court case in which cancellation was upset because the insurer had opened the returned registered letter of cancellation. (4) Where this contract is terminated by the insured, the insurer shall refund as soon as practicable the excess of premium actually paid by the insured over the short rate premium for the expired time, but in no event shall the short rate premium for the expired time be deemed to be less than any minimum retained premium specified. When an insured cancels a policy, the refund is calculated on a short rate basis subject to any minimum retained premium stated in the policy. This produces a slightly smaller refund to offset the insurer s expenses in issuing and then cancelling the policy before a substantial part of the premium is earned. Page 5 of 8

6 Summary (5) For the purpose of clause (a) of subconditions (1.1) and (1.2), the day on which the insurer gives the notice by registered mail shall be deemed the day after the day of mailing. (6) all references in this condition to times of day shall be interpreted to mean the time of day in the local time of the place of residence of the insured. Insured may cancel at any time No special conditions apply Refund premium on short rate basis subject to minimum retained premium Refund payment to be made as soon as possible Insurer may terminate policy by following strict conditions Reason for termination must be valid within the terms of the Automobile Insurance Act and the Insurance Act Give 15 days after the day the insurer gives written notice by registered mail (30 days after if policy is being cancelled for non-payment) OR give 5 days written notice, after the day the insurer personally delivered (10 days after if policy is being cancelled for non-payment) Refund premium on pro rata basis subject to minimum retained premium Refund payment must accompany notice of cancellation unless premium is subject to adjustment; then it must follow as soon as possible Notice begins to run on the day after the day of mailing Study 8, page 16, under Removing Depreciation Deduction (OPCF 43), replace the second last sentence as follows: If the vehicle is a total loss, the insurer pays the value or price of the vehicle (as defined in the endorsement wording) without deduction for depreciation. Study 8, page 18, after the Agreement Not to Rely on SABS Priority of Payments Rules section add section as follows: Added Coverage to Offset Tort Deductibles (OPCF 48) Under the standard Owner s Policy wording, claims payment for a bodily injury liability suit for non-economic loss is subject to a per person deductible. This endorsement offsets or reduces the deductible as permitted in the Regulation. In effect the insured can buy-down the bodily injury tort deductible. The coverage Page 6 of 8

7 provided is a first-party coverage that is, the insured claims the reduction in deductible from his or her own insurer not from the third-party insurer. Study 9, page 4 add numbered points to the list of unfair and deceptive practices as follows: 12. The use of a document in place of a form approved for use by the Superintendent, unless none of the deviations in the document from the approved form affects the substance or is calculated to mislead. 13. Any examination or purported examination under oath that does not comply with the requirements under the Act or the regulations. Study 9, page 4 under the numbered list of unfair and deceptive practices add as follows: The legislation also identifies as unfair or deceptive any practice that: Is used to attempt to obtain a different premium for an insurance policy than the premium set out on the policy Is used to refund or discount all or part of the premium in any form to the person applying for insurance Uses credit information for the purposes of processing an application for automobile insurance responding to a request for automobile insurance renewal of any automobile policy. In addition, when an applicant requests an automobile insurance quotation, the insurer approached must provide the lowest rate it makes available taking into consideration all of the circumstances related to the application. Where the insurer is affiliated with other insurers or has other means of distribution, the insurer must provide the lowest rate available from any of those affiliated insurers or means of distribution. Study 10, page 2, in the second paragraph amend the first sentence to read as follows: On average, most drivers do not experience difficulty obtaining automobile insurance through regular markets (also referred to as voluntary markets). Study 10, page 3, under The Facility Association, after the first paragraph add paragraphs as follows: In provinces where the Association operates, the underwriting rules of the various automobile insurers serve as guidelines to determine whether a risk qualifies for insurance through the voluntary market. These rules are a list of grounds for which the insurer declines to issue, terminates, or refuses to renew a contract, or refuses to provide or continue a coverage or endorsement. Page 7 of 8

8 Since underwriting rules can vary from insurer to insurer, a risk declined by one insurer s underwriting rules may be accepted by another insurer s underwriting rules. In theory, a risk would be placed in the residual market if it does not meet any insurer s underwriting rules. But some risks placed in the residual market may be eligible for insurance through the voluntary market. Example In Ontario, consumers are only required to have one declination letter from a voluntary market insurer before being eligible for coverage through the residual market. Study 10, page 5, under Sharing of Results add definition as follows: Definition A car year is a measurement of an insurer s exposure. It means an automobile insured for a period of 12 months. For example, a single policy providing coverage on three automobiles for a six-month term would be 1.5 car years. Study 10, page 7, after the Servicing Carrier Compensation section add section as follows: Risk Sharing Pools The Facility Association also manages risk sharing pools in Alberta, New Brunswick, Nova Scotia, and Ontario, which are established under the Plan of Operation. These pools allow automobile insurance underwriters to transfer certain private passenger automobile exposures that may meet the companies underwriting guidelines, but still present higher-than-average risk. They are sometimes referred to as "grey" private passenger risks. Because these risks meet underwriting guidelines, insurers cannot decline them, and they must still be written in the voluntary market at the insurers normal rates. Risk sharing pools give the writing companies the option of keeping such business for their own account or transferring it to the pool. Only risks that do not meet underwriting guidelines can be considered residual market risks and have policies issued through the Facility Association. -Ontario Pool- The Ontario Risk Sharing Pool has operated since Insurers who are members of the pool cede the entire grey policies to the pool, but retain 15 percent of the premiums and claims. Insurers share the experience of the transferred risk with the pool in accordance with their share of the market and their usage of the pool. The company which issues the initial policy (the primary writer) remains responsible for servicing the policy, including settling any claims which may arise from the policy. Page 8 of 8