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C.C.S.M. c. I40
The Insurance Act
| Table of Contents | Regulations |
| Sections: 1 - 208(2) | 208(3) - 409 | |
208(3) Notwithstanding subsection (2), an insurer does not remain liable, under a contract or benefit provision described in that subsection, to pay a benefit for loss of income for the recurrence, after the termination of that contract or benefit provision, of a disability that recurs after a continuous period of six months, or such longer period as is provided in the contract, during which the group person insured was not disabled.
208(4) An insurer who is liable under subsection (2) to pay a benefit for loss of income on account of the disability of a group person insured is not liable to pay benefits for any period longer than the period remaining of the original maximum benefit period in respect of the disability of the group person insured.
Rights of insured under replacing group contract
208(5) Where a contract of group insurance (herein referred to as the "replacing contract") is entered into within 31 days of the termination of another contract of group insurance (herein referred to as the "other contract") and insures the same group or a part of the group insured under the other contract,
(a) the replacing contract shall provide or shall be deemed to provide that any person who was insured under the other contract at the time of its termination is insured under the replacing contract from and after the termination of the other contract if,
(i) the insurance on that person under the other contract terminated solely by reason of the termination of the other contract, and
(ii) the person is a member of a class eligible for insurance under the replacing contract;
(b) every person who was insured under the other contract and who is insured under the replacing contract is entitled to receive credit for satisfaction of any deductible earned before the effective date of the replacing contract; and
(c) no person who was insured under the other contract shall be excluded from eligibility under the replacing contract solely because of not being actively at work on the effective date of the replacing contract;
but if the replacing contract provides that the full benefits required to be paid pursuant to subsection (2) by the insurer of the other contract is to be provided instead under the replacing contract, the insurer of the other contract is not liable to pay any such benefits.
209(1) Except as provided in subsection (2), in the case of a contract of group insurance an insurer shall issue for delivery by the insured to each group person insured a certificate or other document in which are set forth the following particulars:
1.
the name of the insurer and a sufficient identification of the contract;
2.
the amount or the method of determining the amount of insurance on the group person insured and on any person insured;
3.
the circumstances under which the insurance terminates, and the rights, if any, upon such termination of the group person insured and of any person insured.
209(2) This section does not apply to a contract of blanket insurance or to a contract of group insurance of a non-renewable type issued for a term of six months or less.
210(1) Subject to section 211 and except as otherwise provided in this section, the insurer shall set forth in the policy every exception or reduction affecting the amount payable under the contract, either in the provision affected by the exception or reduction, or under a heading such as "Exceptions" or "Reductions".
210(2) Where the exception or reduction affects only one provision in the policy it shall be set forth in that provision.
210(3) Where the exception or reduction is contained in an endorsement, insertion or rider, the endorsement, insertion or rider shall, unless, it affects all amounts payable under the contract, make reference to the provisions in the policy affected by the exception or reduction.
210(4) The exception or reduction mentioned in section 223 need not be set forth in the policy.
210(5) This section does not apply to a contract made by a fraternal society.
211 Subject to section 212, the conditions set forth in this section shall be deemed to be part of every contract other than a contract of group insurance, and shall be printed on or attached to the policy forming part of such contract with the heading "Statutory Conditions".
STATUTORY CONDITIONS
1(1) The application, this policy, any document attached to this policy when issued, and any amendment to the contract agreed upon in writing after the policy is issued, constitute the entire contract, and no agent has authority to change the contract or waive any of its provisions.
1(2) The insurer shall be deemed not to have waived any condition of this contract, either in whole or in part, unless the waiver is clearly expressed in writing signed by the insurer.
1(3) The insurer shall, upon request, furnish to the insured or to a claimant under the contract a copy of the application.
2 No statement made by the insured or person insured at the time of application for this contract shall be used in defence of a claim under or to avoid this contract unless it is contained in the application or any other written statements or answers furnished as evidence of insurability.
3(1) If after the contract is issued the person insured engages for compensation in an occupation that is classified by the insurer as more hazardous than that stated in this contract, the liability under this contract is limited to the amount that the premium paid would have purchased for the more hazardous occupation according to the limits, classification of risks and premium rates in use by the insurer at the time the person insured engaged in the more hazardous occupation.
3(2) If the person insured changes his occupation from that stated in this contract to an occupation classified by the insurer as less hazardous and the insurer is so advised in writing, the insurer shall either,
(a) reduce the premium rate; or
(b) issue a policy for the unexpired term of this contract at the lower rate of premium applicable to the less hazardous occupation;
according to the limits, classification of risks, and premium rates used by the insurer at the date of receipt of advice of the change in occupation, and shall refund to the insured the amount by which the unearned premium on this contract exceeds the premium at the lower rate for the unexpired term.
Relations of earnings to insurance
4 Where the benefits for loss of time payable hereunder, either alone or together with benefits for loss of time under another contract, including a contract of group accident insurance or group sickness insurance or of both and a life insurance contract providing disability insurance, exceed the money value of the time of the person insured, the insurer is liable only for that proportion of the benefits or loss of time stated in this policy that the money value of the time of the person insured bears to the aggregate of the benefits for loss of time payable under all such contracts and the excess premium, if any, paid by the insured shall be returned to him by the insurer.
5 The insured may terminate this contract at any time by giving written notice of termination to the insurer by registered mail to its head office or chief agency in the province, or by delivery thereof to an authorized agent of the insurer in the province, and the insurer shall upon surrender of this policy refund the amount of premium paid in excess of the short rate premium calculated to the date of receipt of such notice according to the table in use by the insurer at the time of termination.
6(1) The insurer may terminate this contract at any time by giving written notice of termination to the insured and by refunding concurrently with the giving of notice the amount of premium paid in excess of the pro rata premium for the expired time.
6(2) The notice of termination may be delivered to the insured, or it may be sent by registered mail to the latest address of the insured on the records of the insurer.
6(3) Where the notice of termination is delivered to the insured, five days notice of termination shall be given; where it is mailed to the insured, 10 days notice of termination shall be given, and the 10 days shall begin on the day following the date of mailing of notice.
7(1) The insured or a person insured, or a beneficiary entitled to make a claim or the agent of any of them, shall
(a) give written notice of claim to the insurer
(i) by delivery thereof, or by sending it by registered mail to the head office or chief agency of the insurer in the province; or
(ii) by delivery thereof to an authorized agent of the insurer in the province,
not later than 30 days from the date a claim arises under the contract on account of an accident, sickness or disability;
(b) within 90 days from the date a claim arises under the contract on account of an accident, sickness or disability, furnish to the insurer such proof as is reasonably possible in the circumstances of the happening of the accident or the commencement of the sickness or disability, and the loss occasioned thereby, the right of the claimant to receive payment, his age, and the age of the beneficiary if relevant; and
(c) if so required by the insurer, furnish a satisfactory certificate as to the cause or nature of the accident, sickness or disability for which claim may be made under the contract and as to the duration of such disability.
Failure to give notice or proof
7(2) Failure to give notice of claim or furnish proof of claim within the time prescribed by this statutory condition does not invalidate the claim if the notice or proof is given or furnished as soon as reasonably possible, and in no event later than one year from the date of the accident or the date a claim arises under the contract on account of sickness or disability if it is shown that it was not reasonably possible to give notice or furnish proof within the time so prescribed.
Insurer to furnish forms for proof of claim
8 The insurer shall furnish forms for proof of claim within 15 days after receiving notice of claim, but where the claimant has not received the forms within that time he may submit his proof of claim in the form of a written statement of the cause or nature of the accident, sickness or disability giving rise to the claim and of the extent of the loss.
9 As a condition precedent to recovery of insurance moneys under this contract,
(a) the claimant shall afford to the insurer an opportunity to examine the person of the person insured when and so often as it reasonably requires while the claim hereunder is pending; and
(b) in the case of death of the person insured, the insurer may require an autopsy subject to any law of the applicable jurisdiction relating to autopsies.
When moneys payable other than for loss of time
10 All moneys payable under this contract, other than benefits for loss of time, shall be paid by the insurer within 60 days after it has received proof of claim.
When loss of time benefits payable
11 The initial benefits for loss of time shall be paid by the insurer within 30 days after it has received proof of claim, and payment shall be made thereafter in accordance with the terms of the contract but not less frequently than once in each succeeding 60 days while the insurer remains liable for the payments if the person insured when required to do so furnishes before payment proof of continuing disability.
12 An action or proceeding against the insurer for the recovery of a claim under this contract shall not be commenced more than one year after the date the insurance money became payable or would have become payable if it had been a valid claim.
Omission or variation of conditions
212(1) Where a statutory condition is not applicable to the benefits provided by the contract it may be omitted from the policy or varied so that it will be applicable.
212(2) Statutory conditions 3, 4 and 9 may be omitted from the policy if the contract does not contain any provisions respecting the matters dealt with therein.
212(3) Statutory conditions 5 and 6 shall be omitted from the policy if the contract does not provide that it may be terminated by the insurer prior to the expiry of any period for which a premium has been accepted.
212(4) Statutory conditions 3, 4, 5, 6 and 9, and subject to the restriction in subsection (5), statutory condition 7, may be varied but if by reason of the variation the contract is less favourable to the insured, a person insured or a beneficiary than it would be if the condition had not been varied, the condition shall be deemed to be included in the policy in the form in which it appears in section 211.
212(5) Clauses (1)(a) and (b) of statutory condition 7 as enacted may not be varied in policies providing benefits for loss of time.
212(6) Statutory conditions 10 and 11 may be varied by shortening the periods of time prescribed therein, and statutory condition 12 may be varied by lengthening the period of time prescribed therein.
212(7) The title of a statutory condition shall be reproduced in the policy along with the statutory condition, but the number of a statutory condition may be omitted.
212(8) In the case of a contract made by a fraternal society,
(a) the following provision shall be printed on every policy in substitution for subsection (1) of statutory condition 1:
The contract
1(1) This policy, the Act or instrument of incorporation of the society, its constitution, by-laws and rules, and the amendments made from time to time to any of them, the application for the contract and the medical statement of the applicant, constitute the entire contract, and no agent has authority to change the contract or waive any of its provisions.; and
(b) statutory condition 5 shall not be printed on the policy.
Notice of statutory conditions
213 In the case of a policy of accident insurance of a non-renewable type issued for a term of six months or less or in relation to a ticket of travel, the statutory conditions need not be printed on or attached to the policy if the policy contains the following notice printed in conspicuous type:
"Notwithstanding any other provision herein contained, this contract is subject to the statutory conditions in The Insurance Act respecting contracts of accident insurance."
Termination for non-payment of initial or renewal premium
214(1) Where a policy evidencing a contract or a certificate evidencing the renewal of a contract is delivered to the insured and the initial premium or in the case of a renewal certificate the renewal premium therefor has not been fully paid,
(a) the contract or the renewal thereof evidenced by the certificate is as binding on the insurer as if such premium had been paid although delivered by an officer or agent of the insurer who did not have authority to deliver it; and
(b) the contract may be terminated for non-payment of the premium by the insurer upon 10 days' notice of termination given in writing to the insured and mailed postage prepaid and registered to the latest address of the insured on the records of the insurer and the 10 days shall begin on the day following the date of mailing such notice.
214(2) This section does not apply to a contract of group insurance or to a contract made by a fraternal society.
215(1) An insurer may
(a) deduct unpaid premiums from an amount which it is liable to pay under a contract; or
(b) sue the insured for unpaid premiums.
Where cheque or note for premium not paid
215(2) Where a cheque or other bill of exchange or a promissory note or other written promise to pay is given for the whole or part of a premium and payment is not made according to its tenor the premium or part thereof shall be deemed never to have been paid.
215(3) Clause (1)(a) does not apply to a contract of group insurance.
215(4) This section does not apply to a contract made by a fraternal society.
216 Without restricting the meaning of the expression "insurable interest", a person has an insurable interest in his own life and well-being and in the life and well-being of
(a) his child or grandchild;
(b) his spouse or common-law partner ;
(c) any person upon whom he is wholly or in part dependent for, or from whom he is receiving, support or education;
(d) his officer or employee; and
(e) any person in whom he has a pecuniary interest.
217(1) Subject to subsection (2), where at the time a contract would otherwise take effect, the insured has no insurable interest, the contract is void.
217(2) A contract is not void for lack of insurable interest
(a) if it is a contract of group insurance; or
(b) if the person insured has consented in writing to the insurance.
217(3) Where the person insured is under the age of 16 years, consent to the insurance may be given by one of his parents or by a person standing in loco parentis to him.
POLICIES ON LIVES OF MINORS
218 Except in respect of his rights as beneficiary, a minor who has attained the age of 16 years has the capacity of a person of the age of 18 years
(a) to make an enforceable contract; and
(b) in respect of a contract.
MISREPRESENTATION AND NON-DISCLOSURE
219(1) An applicant for insurance on his own behalf and on behalf of each person to be insured, and each person to be insured, shall disclose to the insurer in any application, on a medical examination, if any, and in any written statements or answers furnished as evidence of insurability, every fact within his knowledge that is material to the insurance and is not so disclosed by the other.
219(2) Subject to sections 220 and 223, a failure to disclose, or a misrepresentation of, such a fact renders a contract voidable by the insurer.
Group insurance failure to disclose
219(3) In the case of a contract of group insurance, a failure to disclose or a misrepresentation of such a fact with respect to a group person insured or a person insured under the contract does not render the contract voidable, but if evidence of insurability is specifically requested by the insurer, the insurance in respect of such a person is, subject to section 220, voidable by the insurer.
220(1) Subject to section 223 and except as provided in subsection (2),
(a) where a contract, including renewals thereof, except a contract of group insurance, has been in effect continuously for two years with respect to a person insured, a failure to disclose or a misrepresentation of a fact with respect to that person required by section 219 to be disclosed does not, except in the case of fraud, render the contract voidable; and
(b) where a contract of group insurance, including renewals thereof, has been in effect continuously for two years with respect to a group person insured or a person insured, a failure to disclose or a misrepresentation of a fact with respect to that group person insured or person insured required by section 219 to be disclosed does not, except in the case of fraud, render the contract voidable with respect to that group person insured or person insured.
220(2) Where a claim arises from a loss incurred or a disability beginning before a contract, including renewals thereof, has been in force for two years with respect to the person in respect of whom the claim is made, subsection (1) does not apply to that claim.
Application of incontestability to reinstatement
221 Sections 219 and 220 apply with such modifications as the circumstances require to a failure at the time of reinstatement of a contract to disclose or a misrepresentation at that time, and the period of two years to which reference is made in section 220 commences to run in respect of a reinstatement from the date of reinstatement.
222 Where a contract contains a general exception or reduction with respect to pre-existing disease or physical condition and the person insured or group person insured suffers or has suffered from a disease or physical condition that existed before the date the contract came into force with respect to that person and the disease or physical condition is not by name or specific description excluded from the insurance respecting that person,
(a) the prior existence of the disease or physical condition is not, except in the case of fraud, available as a defence against liability in whole or in part for a loss incurred or a disability beginning after the contract, including renewals thereof, has been in force continuously for two years immediately prior to the date of loss incurred or commencement of disability with respect to that person; and
(b) the existence of the disease or physical condition is not, except in the case of fraud, available as a defence against liability in whole or in part if the disease or physical condition was disclosed in the application for the contract.
223(1) Subject to subsections (2) and (3), if the age of the person insured has been misstated to the insurer then, at the option of the insurer, either
(a) the benefits payable under the contract shall be increased or decreased to the amount that would have been provided for the same premium at the correct age; or
(b) the premium may be adjusted in accordance with the correct age as of the date the person insured became insured.
Misstatement of age in group insurance
223(2) In the case of a contract of group insurance, if there is a misstatement to the insurer of the age of a group person insured or person insured, the provisions, if any, of the contract with respect to age or misstatement of age shall apply.
223(3) Where the age of a person affects the commencement or termination of the insurance, the true age governs.
BENEFICIARIES
224(1) Unless otherwise provided in the policy, an insured may in a contract or by a declaration designate his personal representative or a beneficiary to receive insurance money payable in the event of death by accident, and may from time to time alter or revoke the designation by declaration.
224(2) A designation in an instrument purporting to be a will is not ineffective by reason only of the fact that the instrument is invalid as a will or that the designation is invalid as a bequest under the will.
224(3) A designation in a will is of no effect against a designation made later than the making of the will.
224(4) If a designation is contained in a will and subsequently the will is revoked by operation of law or otherwise, the designation is thereby revoked.
224(5) If a designation is contained in an instrument that purports to be a will and subsequently the instrument, if it had been valid as a will would have been revoked by operation of law or otherwise, the designation is thereby revoked.
225(1) A designation in favour of the "heirs", "next-of-kin" or "estate", or the use of words of like import in a designation shall be deemed to be a designation of the personal representative.
225(2) Where a beneficiary predeceases the person insured or group person insured, as the case may be, and no disposition of the share of the deceased beneficiary in the insurance money is provided in the contract or by declaration, the share is payable,
(a) to the surviving beneficiary; or
(b) if there is more than one surviving beneficiary, to the surviving beneficiaries in equal shares; or
(c) if there is no surviving beneficiary, to the insured or group person insured, as the case may be, or his personal representative.
225(3) A beneficiary designated under section 224 may upon the death by accident of the person insured or group person insured enforce for his own benefit, and a trustee appointed pursuant to section 226 may enforce as trustee, the payment of insurance money payable to him, and the payment to the beneficiary or trustee discharges the insurer to the extent of the amount paid, but the insurer may set up any defence that it could have set up against the insured or his personal representative.
226 An insured may in a contract or by a declaration appoint a trustee for a beneficiary, and may alter or revoke the appointment by a declaration.
227(1) Until an insurer receives at its head or principal office in Canada an instrument or an order of a court affecting the right to receive insurance money, or a notarial copy or a copy verified by statutory declaration of any such instrument or order, it may make payment of the insurance money and shall be as fully discharged to the extent of the amount paid as if there were no such instrument or order.
227(2) Subsection (1) does not affect the rights or interests of any person other than the insurer.
227(3) Where an assignee of a contract gives notice in writing of the assignment to the insurer at its head or principal office in Canada he has priority of interest as against
(a) any assignee other than one who gave notice earlier in like manner; and
(b) a beneficiary.
227(4) Where a contract is assigned unconditionally and otherwise than as security, the assignee has all the rights and interests given by the contract and by this Part to the insured, and shall be deemed to be the insured.
Prohibition against assignment
227(5) A provision in a contract to the effect that the rights or interests of the insured, or in the case of a contract of group insurance the group person insured, are not assignable, is valid.
Insurance money free from creditors
228(1) Where a beneficiary is designated, any insurance money payable to him is not, from the time of the happening of the event upon which it becomes payable, part of the estate of the insured, and is not subject to the claims of the creditors of the insured.
228(2) While there is in effect a designation of beneficiary in favour of any one or more of a spouse or common-law partner, child, grandchild or parent of the person insured or group person insured, the rights and interests of the insured in the insurance money and in the contract so far as either relate to accidental death benefits are exempt from execution or seizure.
Group person insured enforcing rights
229(1) A group person insured may, in his own name, enforce a right given by a contract to him, or to a person insured thereunder as a person dependent upon or related to him, subject to any defence available to the insurer against him or such person insured or against the insured.
229(2) Unless a contract or a declaration otherwise provides, where a person insured or group person insured and a beneficiary die at the same time or in circumstances rendering it uncertain which of them survived the other, the insurance money is payable in accordance with subsection 225(2) as if the beneficiary had predeceased the person insured or group person insured.
230(1) Where the insurer admits liability for the insurance money or any part thereof, and it appears to the insurer that
(a) there are adverse claimants; or
(b) the whereabouts of the person entitled is unknown; or
(c) there is no person capable of giving or authorized to give a valid discharge therefor who is willing to do so;
the insurer may apply ex parte to the court for an order for payment of money into court, and the court may upon such notice, if any, as it deems necessary, make an order accordingly.
230(2) The court may fix without taxation the costs incurred upon or in connection with any application or order made under subsection (1), and may order the costs to be paid out of the insurance money or by the insurer or otherwise as it deems just.
230(3) A payment made pursuant to an order under subsection (1) discharges the insurer to the extent of the payment.
230(4) Where an insurer admits liability for insurance money payable to a minor and there is no person capable of giving and authorized to give a valid discharge therefor who is willing to do so, the insurer may at any time after 30 days from the date of the happening of the event upon which the insurance money becomes payable, pay the money less the applicable costs mentioned in subsection (5) into court to the credit of the minor.
230(5) The insurer may retain out of the insurance money for costs incurred upon payment into court under subsection (4), the sum of $10. where the amount does not exceed $1,000., and the sum of $15. in other cases, and payment of the remainder of the money into court discharges the insurer.
230(6) No order is necessary for payment into court under subsection (4), but the accountant or other proper officer shall receive the money upon the insurer filing with him an affidavit showing the amount payable and the name, date of birth and residence of the minor, and upon such payment being made the insurer shall forthwith notify the Public Trustee in his capacity as official guardian and deliver to him a copy of the affidavit.
230(7) Where it appears that a representative of a beneficiary who is under disability may under the law of the domicile of the beneficiary accept payments on behalf of the beneficiary, the insurer may make payment to the representative and any such payment discharges the insurer to the extent of the amount paid.
Payments not exceeding $2,000.
230(8) Notwithstanding that insurance money is payable to a person, the insurer may if the contract so provides, but subject always to the rights of an assignee, pay an amount not exceeding $2,000. to
(a) a relative by blood or connection by marriage or common-law relationship of a person insured or the group person insured; or
(b) any person appearing to the insurer to be equitably entitled thereto by reason of having incurred expense for the maintenance, medical attendance or burial of a person insured or the group person insured, or to have a claim against the estate of a person insured or the group person insured in relation thereto;
and any such payment discharges the insurer to the extent of the amount paid.
230(9) Subject to subsection (10), insurance money is payable in the province.
230(10) In the case of a contract of group insurance, insurance money is payable in the province or territory of Canada in which the group person insured was resident at the time he became insured.
230(11) Unless a contract otherwise provides, a reference therein to dollars means Canadian dollars whether the contract by its terms provides for payment in Canada or elsewhere.
230(12) Where a person entitled to receive insurance money is not domiciled in the province the insurer may pay the insurance money to that person or to any person who is entitled to receive it on his behalf by the law of the domicile of the payee and any such payment discharges the insurer to the extent of the amount paid.
Payment to personal representative
230(13) Where insurance money is by the contract payable to a person who has died or to his personal representative and such deceased person was not at the date of his death domiciled in the province, the insurer may pay the insurance money to the personal representative of such person appointed under the law of his domicile, and any such payment discharges the insurer to the extent of the amount paid.
230(14) Regardless of the place where a contract was made, a claimant who is a resident of the province may bring an action in the province if the insurer was authorized to transact insurance in the province at the time the contract was made or at the time the action is brought.
230(15) An insurer does not incur any liability for any default, error or omission in giving or withholding information as to any notice or instrument that it has received and that affects the insurance money.
230(16) The insurer shall not in the policy give undue prominence to any provision or statutory condition as compared to other provisions or statutory conditions, unless the effect of that provision or statutory condition is to increase the premium or decrease the benefits otherwise provided for in the policy.
230(17) Where there has been imperfect compliance with a statutory condition as to any matter or thing to be done or omitted by the insured, person insured or claimant with respect to the loss insured against and a consequent forfeiture or avoidance of the insurance in whole or in part, and a court before which a question relating thereto is tried deems it inequitable that the insurance should be forfeited or avoided on that ground, the court may relieve against the forfeiture or avoidance on such terms as it deems just.
230(18) Where a policy issued after September 1, 1973, includes a provision that provides that disability benefits shall be payable only during confinement of the insured, the provision does not bind the insured and the benefits in respect of disability under the policy are payable regardless of whether the insured is confined or not.
230(19) No officer, agent, employee or servant of the insurer, and no person soliciting insurance, whether or not he is an agent of the insurer shall, to the prejudice of the insured, person insured or group person insured, be deemed to be the agent of the insured or of the person insured or group person insured in respect of any question arising out of the contract.
PART VII
AUTOMOBILE INSURANCE
231 In this Part
"contract" means a contract of automobile insurance; (« contrat »)
"insured" means a person insured by a contract whether named or not and includes any person who is stated in a contract to be entitled to benefits payable under the insurance mentioned in subsection 264(1) and subsection 265(1), whether described therein as an insured person or not. (« assuré »)
232(1) This Part applies to contracts providing automobile insurance made or renewed in Manitoba on or after the day on which this Part comes into force.
232(2) This Part does not apply to contracts insuring only against,
(a) loss of or damage to an automobile while in or on described premises; or
(b) loss of or damage to property carried in or upon an automobile; or
(c) liability for loss of or damage to property carried in or upon an automobile.
232(3) This Part does not apply to a contract providing insurance in respect of an automobile not required to be registered under The Drivers and Vehicles Act unless it is insured under a contract evidenced by a form of policy approved under this Part.
232(4) This Part does not apply to a contract insuring solely the interest of a person who has a lien upon, or has as security legal title to, an automobile and who does not have possession of the automobile.
S.M. 2005, c. 37, Sched. A, s. 154.
APPROVAL OF FORMS
Approval of forms by superintendent
233(1) No insurer shall use a form of application, policy, endorsement or renewal or continuation certificate in respect of automobile insurance other than a form approved by the superintendent.
Insurer requiring additional information
233(2) An insurer may require additional information in an approved application form, but such additional information does not constitute part of the application for the purposes of section 236.
Approval of policies in special cases
233(3) Where, in the opinion of the superintendent, any provision of this Part, including any statutory condition, is wholly or partly inappropriate to the requirements of a contract or is inapplicable by reason of the requirements of any Act, he may approve a form of policy, or part thereof, or endorsement evidencing a contract sufficient or appropriate to insure the risks required or proposed to be insured, and the contract evidenced by the policy or endorsement in the form so approved is effective and binding according to its terms notwithstanding that those terms are inconsistent with, vary, omit or add to any provision or condition of this Part.
233(4) Except as to matters mentioned in section 245, the superintendent may, if he considers it to be in the public interest, approve a form of motor vehicle liability policy or endorsement thereto that extends the insurance beyond that prescribed in this Part.
Condition of approval of extension
233(5) The superintendent, in granting an approval under subsection (4), may require the insurer to charge an additional premium for the extension and to state that fact in the policy or in any endorsement.
Approval of standard owners policy
233(6) The superintendent may approve a form of owners policy containing insuring agreements and provisions in conformity with this Part for use by insurers in general, and which, for the purposes of section 235 shall be the "standard owners policy".
Publication of standard owners policy
233(7) Where the superintendent approves the form to which reference is made in subsection (6), he shall cause a copy of the form to be published in the Manitoba Gazette; but it is not necessary for him to publish in the Manitoba Gazette endorsement forms approved for use with the standard owners policy.
233(8) The superintendent may revoke an approval given under this section, and, upon notification of the revocation in writing, no insurer shall thereafter use or deliver a form that contravenes the notification.
233(9) The superintendent shall, on request of any interested insurer, specify in writing his reasons for granting, refusing or revoking an approval of a form.
APPLICATION AND POLICY
Persons forbidden to act as agent
234 No person carrying on the business of financing the sale or purchase of automobiles and no automobile dealer, insurance agent or broker and no officer or employee of such a person, dealer, agent or broker, shall act as the agent of an applicant for the purpose of signing an application for automobile insurance.
235(1) Subject to subsection (6), a copy of the written application, signed by the insured or his agent, or, if no signed application is made, a copy of the purported application, or a copy of such part of the application or purported application as is material to the contract, shall be embodied in, endorsed upon or attached to the policy when issued by the insurer.
Policy issued where no signed application
235(2) If no signed written application is received by the insurer prior to the issue of the policy, the insurer shall deliver or mail to the insured named in the policy, or to the agent for delivery or mailing to the insured, a form of application to be completed and signed by the insured and returned to the insurer.
235(3) The insurer shall deliver or mail to the insured named in the policy, or to the agent for delivery or mailing to the insured, the policy or a true copy thereof and every endorsement or other amendment to the contract.
235(4) Where a written application signed by the insured or his agent is made for a contract, the policy evidencing the contract shall be deemed to be in accordance with the application unless the insurer points out in writing to the insured named in the policy in what respect the policy differs from the application, and, in that event, the insured shall be deemed to have accepted the policy unless within one week from the receipt of the notification he informs the insurer in writing that he rejects the policy.
235(5) Upon every application form and policy, there shall be printed or stamped in conspicuous type a copy of subsection 236(1).
Certificate where standard owners policy in force
235(6) Where an insurer adopts the standard owners policy, it may, instead of issuing the policy, issue a certificate in a form approved by the superintendent which, when issued, is of the same force and effect as if it was in fact a standard owners policy, subject to the limits and coverages shown thereon by the insurer and any endorsements issued concurrently therewith or subsequent thereto; but, at the request of an insured, at any time, the insurer shall issue the policy and copy of the written application or purported application as required by subsection (1).
Application of other provisions where certificate issued
235(7) Where a certificate is issued under subsection (6), subsection (5) and subsection 261(2) apply with such modifications as the circumstances require.
235(8) Where an insurer issues a certificate under subsection (6), proof of the contents may be given by production of a copy of the Manitoba Gazette containing the form of standard owners policy approved by the superintendent.
Misrepresentation or violation of conditions renders claim invalid
236(1) 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
(b) the insured contravenes a term of the contract or commits a fraud; or
(c) the insured wilfully makes a false statement in respect of a claim under the contract;
a claim by the insured is invalid and the right of the insured to recover indemnity is forfeited.
236(2) No statement of the applicant shall be used in defence of a claim under the contract unless it is contained in the signed written application therefor or, where no signed written application is made, in the purported application, or part thereof, that is embodied in, endorsed upon or attached to the policy.
236(3) No statement contained in a purported copy of the application, or part thereof, other than a statement describing the risk and the extent of the insurance, shall be used in defence of a claim under the contract unless the insurer proves that the applicant made the statement attributed to him in the purported application, or part thereof.
237(1) Subject to subsection 233(3), section 238, and section 261,
(a) the conditions set forth in this section are statutory conditions and shall be deemed to be part of every contract and shall be printed in every policy with the heading "Statutory Conditions"; and
(b) no variation or omission of or addition to a statutory condition is binding on the insured.
237(2) In this section, "policy" does not include an interim receipt or binder.
STATUTORY CONDITIONS
In these statutory conditions, unless the context otherwise requires, the word "insured" means a person insured by this contract whether named or not.
1(1) The insured named in this contract shall promptly notify the insurer or its local agent in writing of any change in the risk material to the contract and within his knowledge.
1(2) Without restricting the generality of the foregoing, the words "change in the risk material to the contract" include:
(a) any change in the insurable interest of the insured named in this contract in the automobile by sale, assignment or otherwise, except through change of title by succession, death or proceedings under the Bankruptcy Act (Canada);
and in respect of insurance against loss of or damage to the automobile,
(b) any mortgage, lien or encumbrance affecting the automobile after the application for this contract;
(c) any other insurance of the same interest, whether valid or not, covering loss or damage insured by this contract or any portion thereof.
2(1) The insured shall not drive or operate the automobile
(a) unless he is for the time being either authorized by law or qualified to drive or operate the automobile; or
(b) while his licence to drive or operate an automobile is suspended or while his right to obtain a licence is suspended or while he is prohibited under order of any court from driving or operating an automobile; or
(c) while he is under the age of 16 years or under such other age as is prescribed by the law of the province in which he resides at the time this contract is made as being the minimum age at which a licence or permit to drive an automobile may be issued to him; or
(d) for any illicit or prohibited trade or transportation; or
(e) in any race or speed test.
2(2) The insured shall not permit, suffer, allow or connive at the use of the automobile
(a) by any person
(i) unless that person is for the time being either authorized by law or qualified to drive or operate the automobile, or
(ii) while that person is under the age of 16 years or under such other age as is prescribed by the law of the province in which he resides at the time this contract is made as being the minimum age at which a licence or permit to drive an automobile may be issued; or
(b) by any person who is a member of the household of the insured while his licence to drive or operate an automobile is suspended or while his right to obtain a licence is suspended or while he is prohibited under order of any court from driving or operating an automobile; or
(c) for any illicit or prohibited trade or transportation; or
(d) in any race or speed test.
Requirements where loss or damage to persons or property
3(1) The insured shall,
(a) promptly give to the insurer written notice, with all available particulars, of any accident involving loss or damage to persons or property and of any claim made on account of the accident;
(b) verify by statutory declaration, if required by the insurer, that the claim arose out of the use or operation of the automobile and that the person operating or responsible for the operation of the automobile at the time of the accident is a person insured under this contract; and
(c) forward immediately to the insurer every letter, document, advice or writ received by him from or on behalf of the claimant.
3(2) The insured shall not
(a) voluntarily assume any liability or settle any claim except at his own cost; or
(b) interfere in any negotiations for settlement or in any legal proceeding.
3(3) The insured shall, whenever requested by the insurer, aid in securing information and evidence and the attendance of any witness and shall co-operate with the insurer, except in a pecuniary way, in the defence of any action or proceeding or in the prosecution of any appeal.
Requirements where loss or damage to automobile
4(1) Where loss of or damage to the automobile occurs, the insured shall, if the loss or damage is covered by this contract,
(a) promptly give notice thereon in writing to the insurer with the fullest information obtainable at the time;
(b) at the expense of the insurer, and as far as reasonably possible, protect the automobile from further loss or damage; and
(c) deliver to the insurer within 90 days after the date of the loss or damage a statutory declaration stating, to the best of his knowledge and belief, the place, time, cause and amount of the loss or damage, the interest of the insured and of all others therein, the encumbrances thereon, all other insurance, whether valid or not, covering the automobile and that the loss or damage did not occur through any wilful act or neglect, procurement, means or connivance of the insured.
4(2) Any further loss or damage accruing to the automobile directly or indirectly from a failure to protect it as required under subcondition (1) of this condition is not recoverable under this contract.
4(3) No repairs, other than those that are immediately necessary for the protection of the automobile from further loss or damage, shall be undertaken and no physical evidence of the loss or damage shall be removed,
(a) without the written consent of the insurer; or
(b) until the insurer has had a reasonable time to make the examination for which provision is made in statutory condition 5.
4(4) The insured shall submit to examination under oath, and shall produce for examination at such reasonable place and time as is designated by the insurer or its representative all documents in his possession or control that relate to the matters in question, and he shall permit extracts and copies thereof to be made.
Insurer liable for cash value of automobile
4(5) The insurer shall not be liable for more than the actual cash value of the automobile at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to that actual cash value with proper deduction for depreciation, however caused, and shall not exceed the amount that it would cost to repair or replace the automobile, or any part thereof, with material of like kind and quality, but, if any part of the automobile is obsolete and out of stock, the liability of the insurer in respect thereof shall be limited to the value of that part at the time of loss or damage, not exceeding the maker's latest list price.
4(6) Except where an appraisal has been made, the insurer, instead of making payment, may, within a reasonable time, repair, rebuild or replace the property damaged or lost with other of like kind and quality if, within seven days after the receipt of the proof of loss, it gives written notice of its intention to do so.
4(7) There shall be no abandonment of the automobile to the insurer without the insurer's consent. If the insurer exercises the option to replace the automobile or pays the actual cash value of the automobile, the salvage, if any, shall vest in the insurer.
4(8) In the event of disagreement as to the nature and extent of the repairs and replacements required, or as to their adequacy, if effected, or as to the amount payable in respect of any loss or damage, those questions shall be determined by appraisal as provided under The Insurance Act before there can be recovery under this contract, whether the right to recover on the contract is disputed or not, and independently of all other questions. There shall be no right to an appraisal until a specific demand therefor is made in writing and until after proof of loss has been delivered.
5 The insured shall permit the insurer at all reasonable times to inspect the automobile and its equipment.
Time and manner of payment of insurance money
6(1) The insurer shall pay the insurance money for which it is liable under this contract within 60 days after the proof of loss has been received by it or, where an appraisal is made under subcondition (8) of statutory condition 4, within 15 days after the award is rendered by the appraisers.
6(2) The insured shall not bring an action to recover the amount of a claim under this contract unless the requirements of statutory conditions 3 and 4 are complied with or until the amount of the loss has been ascertained as therein provided or by a judgment against the insured after trial of the issue or by agreement between the parties with the written consent of the insurer.
6(3) Every action or proceeding under the contract against the insurer in respect of a claim for indemnification for liability of the insured for loss or damage to property of another person or for personal injury to or death of another person shall be commenced within two years after the liability of the insured is established by a court of competent jurisdiction and not afterwards. Every other action or proceeding against the insurer under the contract, in respect of loss or damage to the automobile shall be commenced within two years from the time the loss or damage was sustained and not afterwards.
Who may give notice and proofs of claim
7 Notice of claim may be given and proofs of claim may be made by the agent of the insured named in this contract in case of absence or inability of the insured to give the notice or make the proof, such absence or inability being satisfactorily accounted for or, in the like case or if the insured refuses to do so, by a person to whom any part of the insurance money is payable.
8(1) This contract may be terminated,
(a) by the insurer giving to the insured 15 days' notice of termination by registered mail or five days' written notice of termination personally delivered;
(b) by the insured at any time on request.
8(2) Where this contract is terminated by the insurer,
(a) the insurer shall refund the excess of premium actually paid by the insured over the pro rata premium for the expired time, but in no event shall the pro rata premium for the expired time be deemed to be less than any minimum retained premium specified; and
(b) 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.
8(3) 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.
8(4) The refund may be made by money, postal or express company money order or cheque payable at par.
8(5) The 15 days mentioned in clause (a) of subcondition (1) of this condition commences to run on the day following the receipt of the registered letter at the post office to which it is addressed.
9 Any written notice to the insurer may be delivered at, or sent by registered mail to, the chief agency or head office of the insurer in the province. Written notice may be given to the insured named in this contract by letter personally delivered to him or by registered mail addressed to him at his latest post office address as notified to the insurer. In this condition, the expression "registered" means registered in or outside Canada.
Exceptions respecting statutory conditions
238(1) Except as otherwise provided in the contract, the statutory conditions set forth in section 237 do not apply to insurance coming within section 263, 264 or 265.
238(2) Where a contract does not insure against liability for loss or damage to persons and property, statutory condition 3 in section 237 is not a part of the policy and may be omitted from the printing of the conditions in the policy.
238(3) When a contract does not insure against loss of or damage to the automobile, statutory condition 4 in section 237 is not a part of the policy and may be omitted from the printing of the conditions in the policy.
Application of clause 2(2)(b) of conditions
238(4) Where a person who is a member of a household of the insured under a contract uses the automobile described in the contract while that person's licence to drive or operate an automobile is suspended, or while that person's right to obtain a licence is suspended, or while that person is prohibited under order of any court from driving or operating an automobile, clause (2)(b) of statutory condition 2 as set out in section 237 does not apply if the insured did not know, at that time he permitted, suffered, allowed or connived at the use of the automobile by that person, that that person's licence to drive or operate an automobile was suspended, or that that person's right to obtain a licence was suspended, or that that person was prohibited under order of a court from driving or operating an automobile; but the onus is on the insured to prove that he did not know that fact.
MOTOR VEHICLE LIABILITY POLICIES
Coverage of owner's policy specific automobile
239(1) Every contract evidenced by an owner's policy insures the person named therein and every other person who with his consent personally drives an automobile owned by the insured named in the contract and within the description or definition thereof in the contract against liability imposed by law upon the insured named in the contract or that other person for loss or damage,
(a) arising from the ownership, use or operation of any such automobile; and
(b) resulting from bodily injury to or the death of any person, and damage to property.
239(2) Where the contract evidenced by an owner's policy also provides insurance against liability in respect of an automobile not owned by the insured named in the contract, an insurer may stipulate in the contract that the insurance is restricted to such persons as are specified in the contract.
Death of person named in owner's policy
239(3) Where the insured named in an owner's policy dies, the following persons shall be deemed to be the insured under the policy:
(a) The spouse or common-law partner of the deceased insured if residing in the same dwelling premises at the time of his death.
(b) In respect of the described automobile, a newly acquired automobile that was acquired by the deceased insured prior to his death and a temporary substitute automobile, all as defined by the policy,
(i) any person having proper temporary custody thereof until grant of probate or administration to the personal representative of the deceased insured,
(ii) the personal representative of the deceased insured.
Coverage of non-owner's policy
240 Every contract evidenced by a non-owner's policy insures the person named therein and such other person, if any, as is specified in the policy against liability imposed by law upon the insured named in the contract or that other person for loss or damage,
(a) arising from the use or operation of an automobile within the definition thereof in the policy, other than an automobile owned by him or registered in his name; and
(b) resulting from bodily injury to or the death of any person, and damage to property.
241 For the purposes of this Part, a person shall not be deemed to be the owner of an automobile for the reason only that he has a lien on the automobile or has legal title to the automobile as security.
242 Insurance under sections 239 and 240 applies to the ownership, use or operation of the insured automobile within Canada and the United States of America and upon a vessel plying between ports of those countries.
243 Any person insured by but not named in a contract to which section 239 or 240 applies may recover indemnity in the same manner and to the same extent as if named therein as the insured, and for that purpose shall be deemed to be a party to the contract and to have given consideration therefor.
244 Every contract evidenced by a motor vehicle liability policy shall provide that, where a person insured by the contract is involved in an accident resulting from the ownership, use or operation of an automobile in respect of which insurance is provided under the contract and resulting in loss or damage to persons or property, the insurer shall,
(a) upon receipt of notice of loss or damage caused to persons or property, make such investigations, conduct such negotiations with the claimant and effect such settlement of any resulting claims as are deemed expedient by the insurer;
(b) defend in the name and on behalf of the insured and at the cost of the insurer any civil action that is at any time brought against the insured on account of loss or damage to persons or property;
(c) pay all costs taxed against the insured in any civil action defended by the insurer and any interest accruing after entry of the judgment upon that part of the judgment that is within the limits of the insurer's liability; and
(d) where the injury is to a person, reimburse the insured for outlay for such medical aid as is immediately necessary at the time.
245 The insurer is not liable under a contract evidenced by a motor vehicle liability policy for any liability,
(a) imposed by any workers compensation law upon any person insured by the contract;
(b) resulting from bodily injury to or the death of any person insured by the contract; or
(c) resulting from bodily injury to or the death of any employee of any person insured by the contract while engaged in the operation or repair of the automobile.
246 The insurer may provide under a contract evidenced by a motor vehicle liability policy, in either or both of the following cases, that it shall not be liable,
(a) to indemnify any person engaged in the business of selling, repairing, maintaining, servicing, storing or parking automobiles for any loss or damage sustained while engaged in the use or operation of or while working upon the automobile in the course of that business unless the person is the owner of the automobile or is his employee;
(b) for loss of or damage to property carried in or upon the automobile or to any property owned or rented by or in the care, custody or control of the insured.
Exclusion for machinery, etc. in operation
247 Subject to the limitations and exclusions of the endorsement, the insurer may provide by endorsement to a contract evidenced by a motor vehicle liability policy, that it shall not be liable for loss or damage resulting from the ownership, use or operation of any machinery or apparatus, including its equipment, mounted on or attached to the automobile while the automobile is at the site of the use or operation of that machinery or apparatus.
248(1) The insurer may provide under a contract evidenced by a motor vehicle liability policy, in one or more of the following cases, that it shall not be liable while,
(a) the automobile is rented or leased to another person;
(b) the automobile is used to carry explosives or to carry radio-active material for research, education, development or industrial purposes or for purposes incidental thereto;
(c) the automobile is used as a taxicab, public omnibus, livery, jitney or sightseeing conveyance or for carrying passengers for compensation or hire;
(d) where the insured vehicle is an automobile, other than a trailer, it is used for towing a trailer owned by the insured unless like indemnity is also provided by the insurer in respect of the trailer;
(e) where the insured vehicle is a trailer, it is towed by an automobile owned by the insured unless like indemnity is also provided by the insurer in respect of the automobile.
248(2) In clause (1)(b), "radio-active material" means,
(a) spent nuclear fuel rods that have been exposed to radiation in a nuclear reactor; or
(b) radio-active waste material; or
(c) unused enriched nuclear fuel rods; or
(d) any other radio-active material of such quantity and quality as to be harmful to persons or property if its container were destroyed or damaged.
248(3) Clause (1)(a) does not include the use by an employee of his automobile on the business of his employer and for which he is paid.
248(4) Clause (1)(c) does not include,
(a) the use by a person of his automobile for the carriage of another person in return for the former's carriage in the automobile of the latter;
(b) the occasional and infrequent use by a person of his automobile for the carriage of another person who shares the cost of the trip;
(c) the use by a person of his automobile for the carriage of a temporary or permanent domestic servant of the insured or his spouse or common-law partner; or
(d) the use by a person of his automobile for the carriage of a client or customer or a prospective client or customer; or
(e) the occasional and infrequent use by the insured of his automobile for the transportation of children to or from school or school activities conducted within the educational program.
Minimum liability under policy
249(1) Every contract evidenced by a motor vehicle liability policy insures, in respect of any one accident, to the limit of at least $200,000., exclusive of interest and costs, against liability resulting from bodily injury to or the death of one or more persons and loss of or damage to property.
249(2) The contract shall be interpreted to mean that where, by reason of any one accident, liability results from bodily injury or death and from loss of or damage to property,
(a) claims against the insured arising out of bodily injury or death have priority to the extent of $180,000. over claims arising out of loss of or damage to property; and
(b) claims against the insured arising out of loss of or damage to property have priority to the extent of $20,000. over claims arising out of bodily injury or death.
Minimum limits where separate limits designated
249(3) The insurer may, instead of specifying a limit in the policy for an inclusive amount, specify a limit of liability of at least $200,000., exclusive of interest and costs, against liability resulting from bodily injury to or the death of one or more persons and a limit of liability of at least $200,000., exclusive of interest and costs, against liability for loss of or damage to property.
249(4) Nothing in this Part precludes an insurer, with respect to a limit or limits in excess of those specified in subsection (1) or (3), from increasing or reducing the limit or limits specified in the contract with respect to the use or operation of the automobile by a named person, but no reduction is effective for a limit less than that required under subsection (1) or (3).
Stipulation in motor vehicle liability policy
250(1) Every motor vehicle liability policy issued in the province shall provide that, in the case of liability arising out of the ownership, use or operation of the automobile in any province or territory of Canada,
(a) the insurer shall not set up any defence to a claim that might not be set up if the policy were a motor vehicle liability policy issued in that province or territory insuring the insured only in respect of any liability in excess of $200,000.; and
(b) the insured, by acceptance of the policy, constitutes and appoints the insurer his irrevocable attorney to appear and defend in any province or territory of Canada in which an action is brought against the insured arising out of the ownership, use or operation of the automobile.
250(2) A provision in a motor vehicle liability policy in accordance with clause (1)(b) is binding on the insured.
251 Nothing in this Part precludes an insurer from providing insurance under a contract evidenced by a motor vehicle liability policy restricted to a limit in excess of that provided under The Manitoba Public Insurance Corporation Act or by another designated contract evidenced by a motor vehicle liability policy, whether the designated contract is a first loss insurance or an excess insurance.
Termination of excess insurance
252 Where the insurance in excess of which the excess contract provides insurance is terminated or terminates, the excess contract is automatically terminated.
Agreement for partial payment of claim by insured
253 Nothing in this Part precludes an insurer from entering into an agreement with its insured under a contract evidenced by a motor vehicle liability policy providing that the insured will reimburse the insurer in an agreed amount in respect of any claim by or judgment in favour of a third party against the insured, and the agreement may be enforced against the insured according to its tenor.
254 An insurer that issues a document
(a) purporting to show that, at the date of the issue of the document, there was in force a policy of insurance which was, in fact, not in force; or
(b) showing that a policy of insurance expires on a date later than that on which, in fact, it expires;
is guilty of an offence.
255(1) In this section, "nuclear energy hazard" means the radio-active, toxic, explosive or other hazardous properties of prescribed substances under the Atomic Energy Control Act (Canada).
Liability when nuclear energy contract also in force
255(2) Where an insured is covered, whether named therein or not, under a contract evidenced by a motor vehicle liability policy for loss or damage resulting from bodily injury to or the death of any person or damage to property arising directly or indirectly out of a nuclear energy hazard and is also covered, whether named therein or not, against such loss or damage under a contract evidenced by a policy of nuclear energy hazard liability insurance issued by a group of insurers and in force at the time of the event giving rise to the loss or damage,
(a) the motor vehicle liability insurance is excess to the nuclear energy hazard liability insurance, and the insurer under the contract of motor vehicle liability insurance is not liable to pay beyond the minimum limits prescribed by section 249; and
(b) the unnamed insured under the contract of nuclear energy liability insurance may, in respect of such loss or damage, recover indemnity under that contract in the same manner and to the same extent as if named therein as the insured, and for that purpose he shall be deemed to be a party to the contract and to have given consideration therefor.
255(3) For the purpose of this section, a contract of nuclear energy hazard liability insurance shall be deemed to be in force at the time of the event giving rise to the loss or damage, notwithstanding that the limits of liability thereunder have been exhausted.
Effective payment on behalf of insured
255(4) Where an insurer makes a payment on behalf of an insured under a contract evidenced by a motor vehicle liability policy to a person who is or alleges himself to be entitled to recover from the insured covered by the policy, the payment constitutes, to the extent of the payment, a release by the person or his personal representative of any claim that the person or his personal representative or any person claiming through or under him or by virtue of The Fatal Accidents Act may have against the insured and the insurer.
255(5) Nothing in this section precludes the insurer making the payment from demanding, as a condition precedent to such payment, a release from the person, or his personal representative or any other person to the extent of the payment.
Consideration of payment in judgments
255(6) Where the person commences an action the court shall adjudicate upon the matter first without reference to the payment, but in giving judgment the payment shall be taken into account, and the person shall be entitled to a judgment only for the net amount, if any.
255(7) The intention of this section is to permit payments to a claimant without prejudice to the defendant or his insurer, either as an admission of liability or otherwise, and the fact of any payment shall not be disclosed to the judge or jury until after judgment, but before formal entry thereof.
Defence where more than one contract
256(1) Where a person is insured under more than one contract evidenced by a motor vehicle liability policy, whether the insurance is first loss insurance or excess, and a question arises under clause 244(b) between an insurer and the insured or between the insurers as to which insurer shall undertake the obligation to defend in the name and on behalf of the insured, whether or not any insurer denies liability under its contract, the insured or any insurer may apply to the court; and the court shall give such directions as may appear proper with respect to the performance of the obligation.
256(2) On an application under subsection (1) the only parties entitled to notice thereof and to be heard thereon are the insured and his insurers, and no material or evidence used or taken upon such an application is admissible upon the trial of an action brought against the insured for loss or damage to persons or property arising out of the use or operation of the automobile in respect of which the insurance is provided.
256(3) An order under subsection (1) does not affect the rights and obligations of the insurers in respect of payment of any indemnity under their respective policies.
256(4) Where indemnity is provided to the insured under two or more contracts and one or more of them are excess insurance, the insurers shall, as between themselves, contribute to the payment of expenses, costs and reimbursement for which provision is made in section 244 in accordance with their respective liabilities for damages awarded against the insured.
Limitation of group automobile insurance
257(1) No rating bureau and no insurer authorized to transact the business of insurance within Manitoba shall fix or make any rate or schedule of rates or charge a rate for automobile insurance to any group of persons by reason of the group being engaged in any trade, calling, profession or occupation, or by reason of membership in any guild, union, society, club or association or by reason of common employment or by reason of common occupancy of the same building or group of buildings or for any other reason that would result in a lower cost to an individual in the group than the individual would have had to pay if insured individually; and every insurer or other person who violates this section is guilty of an offence.
257(2) Nothing in this Act prohibits the fixing or charging of a special rate for the insurance of two or more vehicles owned by and registered in the name of the same person, except where the owner is engaged in the business of leasing the vehicles and the vehicles are the subject of a leasing agreement for a period in excess of 30 days.
257(3) Nothing in this section prohibits the fixing or charging of a special rate for the insurance of two or more vehicles of a lessor that are rented to the same lessee.
Application of insurance money under motor vehicle liability policy
258(1) Any person who has a claim against an insured for which indemnity is provided by a contract evidenced by a motor vehicle liability policy, notwithstanding that such person is not a party to the contract, may, upon recovering a judgment therefor in any province or territory of Canada against the insured, have the insurance money payable under the contract applied in or towards satisfaction of his judgment and of any other judgments or claims against the insured covered by the contract and may, on behalf of himself and all persons having such judgments or claims, maintain an action against the insurer to have the insurance money so applied.
258(2) No action shall be brought against an insurer under subsection (1) after the expiration of one year from the final determination of the action against the insured, including appeals if any.
258(3) A creditor of the insured is not entitled to share in the insurance money payable under any contract unless his claim is one for which indemnity is provided for by that contract.
258(4) The right of a person who is entitled under subsection (1) to have insurance money applied upon his judgment or claim is not prejudiced by,
(a) an assignment, waiver, surrender, cancellation or discharge of the contract, or of any interest therein or of the proceeds thereof, made by the insurer after the happening of the event giving rise to a claim under the contract; or
(b) any act or default of the insured before or after that event in contravention of this Part or of the terms of the contract; or
(c) any contravention of the Criminal Code (Canada) or a statute of any province or territory of Canada or of any state or the District of Columbia of the United States of America by the owner or driver of the automobile;
and nothing mentioned in clause (a), (b) or (c) is available to the insurer as a defence in an action brought under subsection (1).
Section applicable to purported policy
258(5) It is not a defence to an action under this section than an instrument issued as a motor vehicle liability policy by a person engaged in the business of an insurer and alleged by a party to the action to be such a policy is not a motor vehicle liability policy, and this section applies with such modifications as the circumstances require to the instrument.
258(6) The insurer may require any other insurers liable to indemnify the insured in whole or in part in respect of judgments or claims to which reference is made in subsection (1) to be made parties to the action and contribute according to their respective liabilities, whether the contribution is rateably or by way of first loss or excess insurance, as the case may be, and the insured shall on demand furnish the insurer with particulars of all other insurance covering the subject-matter of the contract.
258(7) Where any person has recovered a judgment against the insured and is entitled to bring action under subsection (1), and the insurer admits liability to pay the insurance money under the contract and the insurer considers that,
(a) there are or may be other claimants; or
(b) there is no person capable of giving and authorized to give a valid discharge for payment who is willing to do so;
the insurer may apply to the court ex parte for an order for payment of the money into court, and the court may, upon such notice, if any, as it thinks necessary, make an order accordingly.
258(8) The receipt of the proper officer of the court is sufficient discharge to the insurer for the insurance money paid into court under subsection (7), and the insurance money shall be dealt with as the court may order upon application of any person interested therein.
Section 248 coverage and limitation on coverage
258(9) Notwithstanding anything contained therein to the contrary, every contract evidenced by a motor vehicle liability policy shall, for the purposes of this section, be deemed to provide all the types of coverage mentioned in section 248; but the insurer is not liable to a claimant with respect to that coverage in excess of the limits mentioned in section 249.
Defence where coverage under ss. 246, 247
258(10) Where one or more contracts provide for coverage of a type mentioned in section 246 or 247, except as provided in subsection (12), the insurer may,
(a) with respect to that type of coverage; and
(b) as against a claimant;
avail itself of any defence that it is entitled to set up against the insured, notwithstanding subsection (4).
258(11) Where one or more contracts provide for coverage in excess of $200,000., except as provided in subsection (12), the insurer may,
(a) with respect to the coverage in excess of those limits; and
(b) as against a claimant;
avail itself of any defence that it is entitled to set up against the insured, notwithstanding subsection (4).
Defence where vehicle used in business of carrying passengers
258(12) Where a contract provides coverage of the type mentioned in clause 247(a) in respect of an automobile operated in the business of carrying passengers for compensation or hire and insured for that purpose, the insurer may,
(a) with respect to that type of coverage; and
(b) as against a claimant;
only avail itself of a defence that it is entitled to set up against the insured in respect of that part of the coverage, if any, that exceeds,
(c) $200,000.; or
(d) the minimum limits required for that type of coverage by or under any other Act;
whichever is the greater.
Insured's liability to reimburse insurer
258(13) The insured shall reimburse the insurer upon demand in the amount that the insurer has paid by reason of this section and that it would not otherwise be liable to pay.
Insurer may be made third party
258(14) Where an insurer denies liability under a contract evidenced by a motor vehicle liability policy, it shall, upon application to the court in which the action is proceeding, be made a third party in any action to which the insured is a party and in which a claim is made against the insured by any party to the action in which it is or might be asserted that indemnity is provided by the contract, whether or not the insured enters an appearance or defence in the action.
258(15) Upon being made a third party, the insurer may,
(a) contest the liability of the insured to any party claiming against the insured;
(b) contest the amount of any claim made against the insured;
(c) deliver any pleadings in respect of the claim of any party claiming against the insured;
(d) have production and discovery from any party adverse in interest; and
(e) examine and cross-examine witnesses at the trial;
to the same extent as if it were a defendant in the action.
258(16) An insurer may avail itself of subsection (15) notwithstanding that another insurer is defending in the name and on behalf of the insured an action to which its insured is a party.
Insured to give notice of action
259(1) Every insured against whom an action is commenced for damages occasioned by an automobile shall give notice thereof in writing to the insurer within five days after service of every notice or process in the action.
259(2) Every insured against whom an action is commenced for damages occasioned by an automobile shall, upon recovery of a judgment against the insured, disclose to a judgment creditor entitled to the benefit of any motor vehicle liability policy particulars of such contract within 10 days after written demand therefor.
PHYSICAL DAMAGE COVER
Stipulations in physical damage cover
260 Subject to subsection 233(1), the insurer may provide in a contract such exclusions and limitations, in respect of loss or damage to or the loss of use of the automobile, as it considers necessary.
Partial payment of loss clause
261(1) A contract or part of a contract providing insurance against loss of or damage to an automobile and the loss of use thereof may contain a clause to the effect that, in the event of loss, the insurer shall pay only,
(a) an agreed portion of any loss that may be sustained; or
(b) the amount of the loss after deduction of a sum specified in the policy;
and in either case not exceeding the amount of the insurance.
261(2) Where a clause is inserted in accordance with subsection (1), there shall be printed or stamped upon the face of the policy in conspicuous type the words: "This policy contains a partial payment of loss clause".
Claims to be adjusted with insured
262(1) Where a claim is made under any contract other than a contract evidenced by a motor vehicle liability policy, the insurer shall, notwithstanding any agreement, adjust the amount of the claim with the insured named in the contract as well as with any person having an interest indicated in the contract.
262(2) Where notice is given or proof of loss is made by a person other than the insured, because the insured cannot be located or neglects or refuses or is unable to give notice and make claim under statutory conditions 4 and 7 in section 237, the insurer may, notwithstanding subsection (1) but in any event not earlier than 60 days from delivery or the proof required under clause (1)(c) of statutory condition 4, adjust and pay the claim to the other person having an interest indicated in the contract.
LIMITED ACCIDENT INSURANCE
263(1) Where an insurer provides in a contract insurance against loss resulting from bodily injury to or the death of a person insured arising out of an accident involving an automobile where,
(a) there is legal liability of another person for the injury or death; and
(b) the other person has no insurance against his liability therefor or that person cannot be identified;
that insurance applies only in respect of,
(c) any person who sustains bodily injury or death while driving, being carried in or upon or entering or getting on to or alighting from the described automobile in respect of which insurance of the class mentioned in clause (a) of the definition "automobile insurance" is provided under the contract; and
(d) the insured named in the contract and his or her spouse or common-law partner and any dependent relative residing in the same dwelling premises as the insured named in the contract who sustains bodily injury or death while driving, being carried in or upon or entering or getting on to or alighting from or as a result of being struck by any other automobile that is defined in the contract for the purposes of that insurance.
263(2) The insurance mentioned in subsection (1) does not apply in respect of a person specified therein who has a right of recovery under The Unsatisfied Judgment Fund Act or similar legislation of any other province or territory of Canada or of any state or the District of Columbia of the United States of America.
264(1) Where in a contract an insurer provides insurance against expenses for medical, surgical, dental, ambulance, hospital, professional nursing or funeral services, the insurance applies only in respect of reasonable expenses,
(a) of or incurred for any person who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or, if not the occupant of another automobile, as a result of being struck by an automobile owned by the insured named in the contract in respect of which insurance of the class mentioned in clause (a) of the definition "automobile insurance" is provided under the contract; and
(b) of the insured named in the contract and his or her spouse or common-law partner and any dependent relative residing in the same dwelling premises as the insured named in the contract who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or as a result of being struck by any other automobile that is defined in the contract for the purposes of that insurance.
264(2) Where an insurer makes a payment under a contract of insurance referred to in subsection (1), the payment constitutes, to the extent of such payment, a release by the insured person or his personal representatives of any claim that the insured person or his personal representatives or any person claiming through or under him or by virtue of The Fatal Accidents Act may have against the insurer and any other person who may be liable to the insured person or his personal representatives if that other person is insured under a contract of the same type as is specified in subsection (1), but nothing in this subsection precludes an insurer from demanding, as a condition precedent to payment, a release to the extent of the payment from the person insured or his personal representatives or any other person.
First loss and excess insurance
264(3) The insurance mentioned in the clause (1)(a) is a first loss insurance, and any other automobile insurance of the same type available to the injured person or in respect of a deceased person is excess insurance only.
264(4) The insurance mentioned in clause (1)(a) 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.
264(5) The insurance mentioned in clause (1)(b) is excess insurance to any other insurance indemnifying the injured person or in respect of a deceased person for the expenses.
265(1) Where in a contract an insurer provides accident insurance benefits in respect of the death of, or injury to, an insured person arising out of an accident involving an automobile, the insurance applies only in respect of,
(a) any person who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or, if not the occupant of another automobile, as a result of being struck by an automobile owned by the insured named in the contract in respect of which insurance of the class mentioned in clause (a) of the definition "automobile insurance" is provided under the contract; and
(b) the insured named in the contract and his or her spouse or common-law partner and any dependent relative residing in the same dwelling premises as the named insured who sustains bodily injury or death while driving or being carried in or upon or entering or getting on to or alighting from or as a result of being struck by any other automobile that is defined in the policy for the purposes of the insurance.
265(2) Where an insurer makes a payment under a contract of insurance to which subsection (1) refers, the payment constitutes, to the extent of such payment, a release by the insured person or his personal representatives of any claim that the insured person or his personal representatives or any person claiming through or under him or by virtue of The Fatal Accidents Act may have against the insurer and any other person who may be liable to the insured person or his personal representatives if that other person is insured under a contract of the same type as is specified in subsection (1), but nothing in this subsection precludes an insurer from demanding, as a condition precedent to payment, a release to the extent of the payment from the person insured or his personal representatives or any other person.
First loss and excess insurance
265(3) Subject to subsection (5), the insurance mentioned in clause (1)(a) is a first loss insurance, and any other automobile insurance of the same type available to the injured person or in respect of a deceased person is excess insurance only.
265(4) Subject to subsection (5), the insurance mentioned in clause (1)(b) is excess insurance over any other automobile insurance of the same type available to the injured person or in respect of a deceased person.
265(5) Where a person is entitled to benefits under more than one contract providing insurance of the type mentioned in this section, he or his personal representative or any person claiming through or under him or by virtue of The Fatal Accidents Act may recover only an amount equal to,
(a) one benefit, if the benefits under the contracts are of the same limit; or
(b) the highest benefit, if the benefits under the contracts are not of the same limit.
Demand for particulars of insurance
266(1) Where a person is injured or killed in an accident in the province involving an automobile, that person or his personal representative may serve,
(a) a demand by registered mail on the owner of the automobile; or
(b) a demand by registered mail on the insurer of the owner of the automobile;
requiring the owner or insurer, as the case may be, to state in writing to the person making the demand whether or not that owner has insurance of the type mentioned in section 264 and 265, or either of them, and, where the demand is made under clause (a), requiring the owner, if he has such insurance, to state the name of the insurer.
266(2) An owner or insurer who does not, within 10 days after receiving a demand made under subsection (1), comply with the demand is guilty of an offence.
267(1) Any person insured by but not named in a contract to which section 263, 264 or 265 applies may recover under the contract in the same manner and to the same extent as if named therein as the insured, and for that purpose shall be deemed to be a party to the contract and to have given consideration therefor.
267(2) Whe