November 26, 2012
Accident Benefits Update – Isn’t One Deductible Bad Enough?
ACCIDENT BENEFITS UPDATE
For the week of November 26 to November 30, 2012
Isn’t one deductible bad enough?
Martin v. Fleming, 2012 ONCA 750; Ontario Court of Appeal, October 29, 2012, Sharp, Rouleau and Hoy JJ.A.
This was an appeal from a Rule 21 motion judge’s ruling as to the interpretation of s.267.5(7) of the Insurance Act. R.S.O. 1990, c. I.8. Section 267.5(7) stipulates the deductible amounts applicable to awards of general damages.
The motions judge held that when a plaintiff was in multiple accidents, and the actions are tried together, the court must still determine the amount of general damages attributable to each action. Having attributed an award of general damages to each action, there is no reason why the insurer in each action should not be entitled to the applicable deductible in each.
The Court of Appeal agreed with the decision and dismissed the appeal with costs.
The implications of the Court of Appeal decisions can be best illustrated by a concrete hypothetical example.
Ms. Smith was involved in a car accident on January 5, 2012 for which she was not at fault. As a result of the accident Ms. Smith sustained injuries to her spine. Although still able to walk, Ms. Smith could no longer run the 10 km marathons she once did. On June 16, 2012, Ms. Smith was involved in another motor vehicle collision for which she was not at fault. As a result of this second collision Ms. Smith sustained further injury to her spine making it painful for her to walk long distances.
Having awarded Ms. Smith general damages in the amount of $50,000 for the first collision and $30,000 for the second collision, applying the applicable deductible of $30,000, Ms. Smith would only be entitled to a general damages of $20,000 for the first collision and nothing for the second. A total award of $80,000 would net $20,000.
Accessing This Decision:
If you would like to read the court’s decision for yourself, it can be found at:http://www.canlii.org/en/on/onca/doc/2012/2012onca750/2012onca750.html
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