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REVISED REGULATION (1984)
UNDER THE INSURANCE (MOTOR VEHICLE) ACT � Continued
B.C. Reg. 447/83
Part 10 � First Party Coverage
Division 1 � Inverse Liability and Uninsured or
Hit and Run Accidents Outside British Columbia
147 (1) In this section:
"insured" means an insured as defined in section 113;
"loss or damage" means loss or damage to which collision coverage applies.
(2) Where loss or damage occurs in Canada or the United States of America to a vehicle described in an owner's certificate and the insured does not have a right of action under the law of the place where the loss or damage occurs or where the person responsible for the loss or damage resides, the corporation shall, subject to subsections (3) and (4), compensate the insured for the loss or damage in an amount equal to the amount of damages the insured would have recovered if the insured had had a right of action.
(3) The limit of compensation under this section is, after allowance for salvage, the least of the following:
(a) the cost of repairing the vehicle;
(b) the declared value of the vehicle;
(c) the actual cash value of the vehicle.
(4) Where a vehicle for which compensation is provided under this section is insured for own damage collision coverage under Part 9 or for own damage coverage provided by another insurer,
(a) compensation provided under this section proportionately reduces the collision deductible paid or payable by the insured under an owner's certificate, and
(b) no compensation is payable for loss or damage for which coverage is provided by the other insurer.
(5) Any dispute between the insured and the corporation as to the degree of liability, if any, of the insured for loss or damage to a vehicle for which compensation is provided under this section shall be submitted to arbitration under the Commercial Arbitration Act.
(6) Except as provided in this section, Division 2 of Part 9 applies in respect of a claim under this section.
[am. B.C. Reg. 449/88, s. 27.]
148 (1) In this section:
"insured" means
(a) a person named as an owner in an owner's certificate,
(b) a member of the household of a person mentioned in paragraph (a),
(c) Repealed. [B.C. Reg. 257/86, s. 33.]
(c.1) an insured as defined in section 42 who is not in default of premium payable under section 45, or
(c.2) a member of the household of an insured described in paragraph (c.1),
and includes the personal representative of a deceased insured;
"unidentified vehicle" means a vehicle
(a) that causes injury or death to an insured arising out of physical contact of the vehicle with the insured or the vehicle of which the insured is an occupant, and
(b) in respect of which
(i) the names of both the owner and the driver are not ascertainable,
(ii) the name of the owner is not ascertainable and the vehicle has no driver, or
(iii) the name of the driver is not ascertainable and the owner is not liable for the actions of the driver;
"uninsured vehicle" means a vehicle the owner or driver of which is not insured under a motor vehicle liability policy as defined in the Insurance Act, but does not include a vehicle owned by or registered in the name of
(a) Repealed. [B.C. Reg. 379/85, s. 49.]
(b) the government of Canada, the United States of America, another state or country or political subdivision of a state or any corporation or agency owned or controlled by a government,
(c) a person who has given proof of financial responsibility in another jurisdiction in a manner similar to the manner prescribed by section 106 of the Motor Vehicle Act, or
(d) a person who is an authorized self-insurer within the meaning of a financial or safety responsibility law respecting motor vehicles.
(2) Where death or injury of an insured arises out of the operation on a highway in Nunavut, the Yukon Territory, the Northwest Territories or the United States of America of an unidentified or uninsured vehicle, other than an uninsured vehicle owned by or registered in the name of the insured or a member of the same household as the insured, the corporation shall, subject to subsections (3), (4) and (7.1), compensate the insured, or a person who has a claim in respect of the death of the insured, for any amount he is entitled to recover as damages for the injury or death from the owner or driver of the unidentified or uninsured vehicle.
(3) The liability of the corporation for payment of all claims under this section arising out of the same occurrence, including a claim for
(a) prejudgment interest under the Court Order Interest Act or similar legislation of another jurisdiction,
(b) post-judgment interest under the Interest Act (Canada) or similar legislation of another jurisdiction, and
(c) costs awarded by a court,
shall not exceed the lesser of
(d) the total amount of damages awarded in respect of the occurrence to all insured by the coverage,
(e) the amount by which liability is limited in section 11 of Schedule 3, or
(f) the minimum limits applicable to third party legal liability insurance injury or death in the jurisdiction in which the occurrence took place.
(4) The corporation is not liable under this section
(a) to an insured who has a right of recovery under an unsatisfied judgment fund or similar fund in any jurisdiction,
(b) to an insured who, to the prejudice of the corporation,
(i) before a payment is made under this section, commences in the Province or elsewhere an action for damages in respect of the injury or death and fails to file a copy of the originating process with the corporation within 60 days after the day the action is commenced, or
(ii) without the written consent of the corporation settles or prosecutes to judgment a claim against a person or organization that may be liable to the insured for the injury or death, or
(c) to an insured who is an operator of, or a passenger in or on, a vehicle that the insured knew or ought to have known was being operated without the consent of the owner.
(5) The corporation is not liable under this section unless the insured or a representative of the insured,
(a) with respect to an accident with an unidentified vehicle, reports the accident within 24 hours after its occurrence to a policeman, peace officer, judicial officer or the administrator of any law respecting motor vehicles,
(b) within 28 days after the occurrence, files with the corporation a statement under oath that the insured has a cause of action arising out of the accident against the owner or driver of an unidentified or uninsured vehicle and setting out the facts in support of that statement, and
(c) on the request of the corporation, allows the corporation to inspect the motor vehicle the insured occupied at the time of the occurrence.
(6) Where an insured makes a claim under this section and against a person who is insured under Part 6, any payment made under this section shall be deducted from any amount the insured is entitled to recover from that person under Part 6.
(7) Any benefits paid to an insured under Part 7 or under legislation of another jurisdiction providing similar benefits shall be deducted from any amount payable to the insured under this section.
(7.1) No compensation shall be paid under this section in respect of that part of claim that is paid or payable as an insured claim as defined in section 106 (1).
(8) The determination as to whether an insured is legally entitled to recover damages and, if so entitled, the amount of the damages, shall be made by agreement between the insured and the corporation, but any dispute as to whether the insured is legally entitled to recover damages or as to the amount of damages shall be submitted to arbitration under the Commercial Arbitration Act.
(9) Section 148.2 (6) applies in respect of compensation provided under this section.
[am. B.C. Regs. 335/84, s. 34; 379/85, s. 49; 449/88, s. 28; 438/92, s. 17; 379/93, s. 9; 441/98, s. 12; 470/99, s. 3.]
Division 2 � Underinsured Motorist Protection
148.1 (1) In this section:
�assigned corporate driver� means a person assigned by the owner or lessee named in an owner�s certificate to be the principal driver of a vehicle described in the owner�s certificate if
(a) the owner or lessee is not an individual, and
(b) the assigned vehicle is a taxable benefit to the assigned person under the Income Tax Act (Canada);
�deductible amount� means an amount
(a) payable by the corporation under section 20 or 24 of the Act, or recoverable by the insured from a similar fund in the jurisdiction in which the accident occurs,
(b) payable under section 148,
(c) payable under Part 7 or as accident benefits under another plan of automobile insurance similar to Part 7,
(d) paid directly by the underinsured motorist as damages,
(e) payable from a cash deposit or bond given in place of proof of financial responsibility,
(f) to which the insured is entitled under the Workers Compensation Act or a similar law of the jurisdiction in which the accident occurs,
(f.1) to which the insured is entitled under the Employment Insurance Act (Canada),
(f.2) to which the insured is entitled under the Canada Pension Plan,
(g) payable to the insured under a certificate, policy or plan of insurance providing third party legal liability indemnity to the underinsured motorist,
(h) payable under a policy of insurance issued under the Insurance Act or a similar law of another jurisdiction providing underinsured motorist protection for the same occurrence for which underinsured motorist protection is provided under this section, or
(i) payable to the insured under any benefit or right or claim to indemnity;
�insured� means
(a) an occupant of a motor vehicle described in the owner�s certificate,
(b) a person who is
(i) named as the owner or lessee in the owner�s certificate where that person is an individual,
(i.1) an assigned corporate driver, or
(ii) a member of the household of a person described in subparagraph (i) or (i.1),
(b.1) a person who is
(i) an insured as defined in section 42 and who is not in default of premium payable under section 45, or
(ii) a member of the household of an insured described in subparagraph (i), or
(c) a person who, in the jurisdiction in which the accident occurred, is entitled to maintain an action against the underinsured motorist for damages because of the death of a person described in paragraph (a), (b) or (b.1),
and, for the purpose of the payment of compensation under this Division, includes the personal representative of a deceased insured;
�owner�s certificate� means an owner�s certificate or policy to which underinsured motorist protection relates;
�underinsured motorist� means an owner or operator of a vehicle who is legally liable for the injury or death of an insured but is unable, when the injury or death occurs, to pay the full amount of damages recoverable by the insured or his personal representative in respect of the injury or death.
(2) Where death or injury of an insured is caused by an accident that
(a) arises out of the use or operation of a vehicle by an underinsured motorist, and
(b) occurs in Canada or the United States of America or on a vessel travelling between Canada and the United States of America,
the corporation shall, subject to subsections (1), (5) and (6) and section 148.4, compensate the insured, or a person who has a claim in respect of the death of the insured, for any amount he is entitled to recover from the underinsured motorist as damages for the injury or death.
(3) No coverage is provided under underinsured motorist protection to an insured who is
(a) the occupant of a vehicle that is in fact not licensed under the Motor Vehicle Act, the Commercial Transport Act or similar legislation of another jurisdiction, unless the insured has reasonable grounds to believe the vehicle is licensed,
(b) an operator of, or a passenger in or on, a vehicle that the operator or passenger knew or ought to have known was being operated without the consent of the owner, or
(c) the occupant of a vehicle which is exempt under section 43 or 44 of the Act, whether or not the vehicle is operated by a person named in a driver�s certificate.
(4) Underinsured motorist protection does not apply to a hit and run accident unless
(a) the hit and run accident occurs on a highway, and
(b) where the hit and run accident occurs in the Yukon, Northwest Territories or United States of America, there is actual physical contact between the insured or the vehicle occupied by the insured and the unidentified vehicle.
(5) The liability of the corporation under this Division for payment under an owner�s certificate or driver�s certificate of all claims arising out of the same occurrence, including a claim for
(a) prejudgment interest under the Court Order Interest Act or similar legislation of another jurisdiction,
(b) post-judgment interest under the Interest Act (Canada) or similar legislation of another jurisdiction, and
(c) costs awarded by a court or an arbitrator,
shall not exceed
(d) the total amount of damages awarded in respect of the accident to all persons insured under that owner�s certificate or driver�s certificate,
(e) the amount determined under section 148.2 (1), or
(f) the applicable amount set out in section 13 of Schedule 3,
whichever is least, minus the sum of the applicable deductible amounts.
(6) Sections 73 to 76 apply in respect of underinsured motorist protection.
(7) Where more than one certificate provides underinsured motorist protection to an insured, the insured shall be compensated only under one such certificate.
(8) Where, in the event of a claim, an insured has access to underinsured motorist protection coverage under both an owner�s certificate and a driver�s certificate, the insured shall be compensated under the owner�s certificate.
(9) Where, in the event of a claim, an insured has access to underinsured motorist protection coverage or similar insurance protection under a contract of automobile insurance of another jurisdiction, the benefits of that coverage are primary and any benefits provided under this Division are available only to the extent that the amount of benefits provided by the certificate exceeds the amount of benefits provided by the primary insurance.
(10) An insured, or the personal representative of an insured, who, before the corporation settles a claim for injury or death of the insured arising out of the operation of a vehicle by an underinsured motorist, commences an action against the underinsured motorist, shall immediately serve the corporation with a copy of the originating process in the action.
[en. B.C. Reg. 324/91, s. 35; am. B.C. Regs. 379/93, s. 10; 271/97; 424/97, s. 4; 470/99, s. 4; 452/2003, s. 5.]
148.2 (1) The determination as to whether an insured provided underinsured motorist protection under section 148.1 is entitled to compensation and, if so entitled, the amount of compensation, shall be made by agreement between the insured and the corporation, but any dispute as to whether the insured is entitled to compensation or as to the amount of compensation shall be submitted to arbitration under the Commercial Arbitration Act.
(2) Notwithstanding subsection (1), section 11 (1) (c) of the Commercial Arbitration Act does not apply in respect of an order for costs of an arbitration.
(3) An arbitrator may make an order as to costs of an arbitration only on a party and party basis.
(4) The corporation is not liable under section 148.1
(a) in respect of an accident occurring in a jurisdiction of Canada or the United States of America in which the right to sue and recover damages for injury or death caused by a vehicle accident is barred by law, or
(b) to an insured who, without the written consent of the corporation and to its prejudice, settles or prosecutes to judgment an action against a person or organization that may be liable to the insured for injury or death.
(5) Where an insured has breached a condition under section 55 or has done or omitted to do anything and, as a result of the breach, action or omission, the insured disqualifies himself from receiving one or more of the amounts referred to in the definition of "deductible amount" in section 148.1 (1), the insured's claim under his underinsured motorist protection shall be reduced by the amount that the insured would, but for the breach, action or omission, have been entitled to.
(6) Subject to subsection (1), where an accident for which a claim is made under section 148.1 occurs in another jurisdiction,
(a) the law of the place where the insured suffered the injury for which the claim is made shall, whether or not death results from that injury, be applied
(i) to determine if the insured is legally entitled to recover damages and, if he is, the degree to which he is so entitled, and
(ii) in any arbitration proceedings arising out of a difference between the insured and the corporation as to whether the insured is legally entitled to recover damages or the degree to which he is so entitled, and
(b) the law of the Province shall be applied
(i) to determine the measure of any damages recoverable by the insured and to assess the amount of compensation payable to the insured, and
(ii) in any arbitration proceedings arising out of a difference between the insured and the corporation respecting the measure of any damages or the amount of compensation.
[en. B.C. Reg. 324/91, s. 35.]
148.3 Where the underinsured motorist protection relates to a garage automobile policy or a garage non-owned automobile policy, protection is extended to an officer or employee of the garage service operator who, in the course of his duties or employment, is an occupant of a customer's vehicle while the vehicle is being operated by its owner or is in the care, custody or control of the garage service operator.
[en. B.C. Reg. 324/91, s. 35; am. B.C. Reg. 441/98, s. 13.]
148.4 Coverage under this Division shall not apply to an owner's certificate issued to a vehicle while such vehicle is being used as a bus, taxi or limousine use vehicle.
[en. B.C. Reg. 324/91, s. 35.]
148.5 and 148.6 Repealed. [B.C. Reg. 452/2003, s. 6.]
148.7 (1) The corporation may, on application and payment of the applicable premium set out in Appendix 1, provide coverage for excess underinsured motorist protection policy (APV-334 or APV-334L) in the form set out in Schedule 6.
(2) Coverage provided under subsection (1) is subject to the terms and conditions set out in the special coverage form.
[en. B.C. Reg. 438/92, s. 18; am. B.C. Reg. 298/2002, s. 8.]
Copyright (c) 2003: Queen�s Printer, Victoria, British Columbia, Canada