This is an official version.

Copyright © 1994: Queen's Printer,
St. John's, Newfoundland and Labrador, Canada

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Statutes of Newfoundland 1994


CHAPTER 4

AN ACT TO AMEND THE AUTOMOBILE
INSURANCE ACT

(Assented to June 9, 1994)

Analysis


        1.   S.2 Amdt.
Definitions

        2.   S.33 R&S
Uninsured motorist coverage

        3.   Ss.45.1 to 45.22 Added
45.1   Application
45.2   Application to
          Facility Association
45.3   Application after
          judgment
45.4   Payment
45.5   Objection to
          application
45.6   Application to Trial Division
45.7   Directed payment
45.8   Failure to defend
45.9   Applicant to assign judgment
45.10 Party Unknown
45.11 Action against Party Unknown
45.12 Facility Association pleadings
45.13 Dismissal where
          driver unknown
45.14 Party Unknown added as defendant
45.15 Application for
          declaratory judgment
45.16 Reasonable effort
          required
45.17 Exemption from
          payment
45.18 Costs not payable
45.19      Supreme Court
          procedure applies
45.20      Prohibition re
          damages
45.21 Consent considered
          given
45.22 Regulations

        4.   RSN 1990 cI‑10
Amdt.

        5.   RSN 1990 cJ‑3
Rep.

        6.   Commencement


Be it enacted by the Lieutenant‑Governor and House of Assembly in Legislative Session convened, as follows:

RSN 1990 cA‑22 as amended

        1. Section 2 of the Automobile Insurance Act is amended by adding immediately after paragraph (d) the following:

          (d.1)  "Facility Association" means the Facility Association referred to in section 97 of the Insurance Companies Act;

        2. Section 33 of the Act is repealed and the following substituted:

Uninsured motorist coverage

      33. (1) In this section

             (a)  "insured automobile" means the automobile defined or described in the contract;

             (b)  "person insured under the contract" means,

                      (i)  in respect of a claim for damage to the insured automobile, the owner of the automobile,

                     (ii)  in respect of a claim for damage to the contents of the insured automobile, the owner of the contents, and

                    (iii)  in respect of a claim for bodily injuries or death,

                            (A)  a person while driving, being carried in or upon or entering or getting on to or alighting from the insured automobile,

                            (B)  the insured named in the contract and if residing in the same dwelling premises as the insured named in the contract, his or her spouse and any dependant relative, while driving, being carried in or upon or entering or getting on to or alighting from an uninsured automobile, or, who is struck by an uninsured or unidentified automobile, and

                            (C)  if the insured named in the contract is a corporation, unincorporated association or partnership, any director, officer, employee or partner of the insured named in the contract, for whose regular use the insured automobile is furnished and, if residing in the same dwelling place, his or her spouse or a dependant relative, while driving, being carried in or upon or entering or getting on to or alighting from an uninsured automobile, or, who is struck by an uninsured or unidentified automobile, if that director, officer, employee or partner or his or her spouse is not the owner of an automobile insured under a contract;

             (c)  "unidentified automobile" means an automobile with respect to which the identity of either the owner or driver cannot be ascertained; and

             (d)  "uninsured automobile" means an automobile with respect to which neither the owner nor driver of it has applicable and collectible bodily injury liability and property damage liability insurance for its ownership, use or operation, but does not include an automobile owned by or registered in the name of the insured or his or her spouse.

             (2)  Every contract evidenced by a motor vehicle liability policy shall provide for payment by the insurer of all sums that

             (a)  a person insured under the contract is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile;

             (b)  a person is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injury to or death of a person insured under the contract resulting from an accident involving an automobile; and

             (c)  a person insured under the contract is legally entitled to recover from the identified owner or driver of an uninsured automobile as damages for accidental damage to the insured automobile or its contents, or to both the insured automobile and its contents, resulting from an accident involving an automobile,

subject to the terms, conditions, provisions, exclusions and limits prescribed by regulation.

             (3)  A dependant relative referred to in the definition "person insured under the contract" in paragraph (1)(b)

             (a)  who is the owner of an automobile insured under a contract; or

             (b)  who sustains bodily injuries or dies as a result of an accident while driving, being carried in or upon or entering or getting on to or alighting from his or her own uninsured automobile,

shall be considered not to be a dependant relative for the purposes of this section.

             (4)  The Lieutenant‑Governor in Council may make regulations

             (a)  prescribing, amending or altering the terms, conditions, provisions, exclusions and limits with respect to payments under subsection (2);

             (b)  considering a term, condition, provision, exclusion, or limit as prescribed, amended or altered by a regulation made under paragraph (a) to be included in a motor vehicle liability policy made or renewed on or after the effective date of the regulation and in any motor vehicle liability policy that is subsisting on the effective date of the regulation; and

             (c)  requiring that terms, conditions, provisions, exclusions and limits as prescribed, amended or altered by a regulation made under paragraph (a) be attached to or included in every motor vehicle liability policy as a schedule in or to the policy.

             (5)  Payments made or available to a person under a contract of insurance referred to in subsection (2) constitute, to the extent of those payments, a release by the person or the person's personal representative or a person claiming through or under the person or by virtue of the Fatal Accidents Act, of a claim that the person may have under subsection (2), 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 the person's personal representative or another person.

             (6)  A release under subsection (5) shall not enure to the benefit of the person or persons against whom the insurer has a right to subrogation under this Act.

             (7)  This section applies to all contracts evidenced by motor vehicle liability policies made or renewed on or after the commencement of this subsection, and all contracts evidenced by motor vehicle liability policies that existed on the commencement of this subsection shall be considered to provide for the payments referred to in subsection (2) in respect of an accident arising out of the use or operation of an automobile occurring on or after the commencement of this subsection.

        3. The Act is amended by adding immediately after section 45 the following:

Application

   45.1 (1) Sections 45.2 to 45.21 apply only to matters arising out of accidents involving an automobile occurring on or after the commencement of this subsection.

             (2)  Sections 45.2 to 45.21 apply only to a claim for damages by a person who is not insured under a contract within the meaning of section 33 and who has no other insurance, or has insurance that is inadequate, with respect to the damages claimed, and subject to subsection (4), no person other than one who is not insured under a contract under section 33 and who has no other insurance, or who has other insurance that is inadequate, with respect to the damages claimed, shall apply to the Facility Association for payment of damages under sections 45.2 to 45.21.

             (3)  Notwithstanding another provision of this Act, a person shall not apply to the Facility Association under sections 45.2 or 45.3 for payment of damages in respect of damage to an automobile owned by or registered in the name of the person, notwithstanding that the person may have had no applicable and collectible insurance with respect to that automobile at the time of the accident in which the damage was incurred, if at the time of the accident, the person was driving the automobile or had the care or control of it, whether it was in motion or not.

             (4)  Where a question arises between a person's insurer and the Facility Association as to whether a person is insured under a contract of insurance under section 33 or has other insurance with respect to the damages claimed, the person may, at his or her option, make a claim for damages against the insurer or apply to the Facility Association for payment of damages under sections 45.2 to 45.21.

             (5)  Where under subsection (4) a person elects to make a claim for damages against the person's insurer and liability is denied on the grounds that the person is not insured under a contract under section 33 and has no other insurance with respect to the damages claimed, the person may, under sections 45.2 to 45.21, apply to the Facility Association for payment of damages.

             (6)  Where under subsection (4) or (5) a person makes a claim for damages under sections 45.2 to 45.21 by applying to the Facility Association for payment of damages and the Facility Association makes a payment to the person under those sections, the Facility Association is subrogated to the extent of those payments to the rights of the person to whom the payments are made and, where, in the opinion of the Facility Association, the person is insured under a contract under section 33 or has other insurance with respect to the damages claimed, the Facility Association may bring an action in its name or in the name of that person against the insurer to recover the amount of the payment.

             (7)  A payment made by the Facility Association under subsection (6) shall not bar the person to whom it is made from making a claim against the person's insurer for damages in excess of the amount of the payment by the Facility Association.

             (8)  For the purpose of this section a person shall not be considered to have insurance coverage or inadequate insurance coverage only because he or she receives or is entitled to receive compensation or benefits under the Hospital Insurance Agreement Act, the Medical Care Insurance Act, the Social Assistance Act or the Workers' Compensation Act for injuries or damages arising out of an accident involving an automobile.

Application to Facility Association

   45.2 (1) A person who would have a cause of action against an owner or a driver of an automobile, other than an automobile owned by or under the care and control of that person, for damages for personal injuries to or the death of a person or damage to property, arising out of the operation, care or control of the automobile in the province, except a person entitled to apply under section 45.3, may apply on a form provided by the Facility Association for payment by the Facility Association of the damages respecting that death, personal injury or property damage.

             (2)  Upon receipt of an application under subsection (1), the Facility Association shall, by registered or certified mail, forward a notice of the application for payment by the Facility Association to the owner and the driver of the automobile against whom liability for the damages caused by the operation of the automobile is alleged, to their latest known addresses or their latest addresses as recorded by the Registrar of Motor Vehicles.

             (3)  The Facility Association may, respecting an application made under subsection (1), make payment, subject to the same conditions, limits, deductions and exclusions which would apply to an application by a judgment creditor under sections 45.3 to 45.21, with the necessary changes, of an amount that it considers proper in all the circumstances if

             (a)  the applicant executes a release of all claims arising out of the automobile accident, subject to subsections 45.1(6) and (7), that caused the damages to be paid by the Facility Association; and

             (b)  subject to paragraph (c), the owner and driver of the automobile against whom liability for the damages caused by the operation of the automobile is alleged, execute a consent to the payment of the sum for damages by the Facility Association and also execute an undertaking in a form provided by the Facility Association to repay to the Facility Association the amount to be paid by the Facility Association; or

             (c)  the person to whom a notice is sent in accordance with subsection (2) does not reply within 30 days of the date upon which the notice was sent either,

                      (i)  by mail, or

                     (ii)  by attending in person at the place named in the notice,

and disputes liability to the person applying under subsection (1).

             (4)  Where an amount is paid out by the Facility Association under subsection (3) or (5), the Facility Association shall, to the extent of the amount paid out, be considered to be a creditor of every person against whom liability for the damages caused by the operation of the automobile is alleged and who was given notice under subsection (2), and upon filing with the Registrar of the Trial Division of a certificate of the Facility Association in a form prescribed by regulation stating the amount paid out, judgment may be entered in that amount in the name of the Facility Association as a judgment of the Trial Division, and, without the consent of the Facility Association, no execution under a judgment obtained respecting those damages shall be made by a person other than the Facility Association against the property of the judgment debtor until the judgment debt of the Facility Association is satisfied.

             (5)  The Facility Association may in its discretion make interim payments to claimants claiming damages for personal injury where the responsible person or persons do not dispute their liability after a notice is sent to them under subsection (2).

Application after judgment

   45.3 Subject to section 45.8, where a person obtains in a court in the province a judgment

             (a)  against an owner or a driver of an automobile, other than an automobile owned by or under the care or control of the person, for damages for injuries to or the death of a person or damage to property, arising out of the operation, care or control of the automobile in the province; or

             (b)  against a party unknown as described in section 45.10, for damages for injury to or the death of a person arising out of the operation, care or control of an automobile in the province,

upon the determination of all proceedings, including appeals, the person may apply to the Facility Association for payment of the amounts in respect of the judgment to which the person is entitled under sections 45.2 to 45.21.

Payment

   45.4 The Facility Association shall pay out to the person the amount of the judgment including the costs included in the judgment, or that part of the judgment including the costs to which the person is entitled, if

             (a)  the person makes an affidavit

                      (i)  as to what amount the person has recovered or is or was entitled to recover, from any source, for or in respect of an injury, death or damage to a person or property arising out of the operation, care or control of the automobile by the owner or driver of it against whom the judgment was obtained whether or not in the action damages were claimed for or in respect of the injury, death or damage and as to what compensation or services or benefits with a pecuniary value the person has recovered or received or is or was entitled to recover or receive for the injury, death or damage, and

                     (ii)  that the application is not made by or on behalf of an insurer in respect of an amount paid or payable by the insurer by reason of the existence of a contract of insurance and that, subject to subsection 45.1(4), no part of the amount is sought to be paid by the Facility Association in place of making a claim or receiving a payment that is or was payable by reason of the existence of a contract of insurance and that no part of the amount sought will be paid to an insurer to reimburse or otherwise indemnify an insurer in respect of an amount paid or payable by the insurer by reason of the existence of a contract of insurance, and

             (b)  the solicitor for the person makes an affidavit

                      (i)  that the judgment is a judgment under section 45.3,

                     (ii)  giving particulars of the amount of damages for or in respect of injury or death, damage to property and the costs, included in the judgment,

                    (iii)  that in so far as the solicitor was advised by a person and learned of any facts during the litigation

                            (A)  the solicitor, subject to subsection 45.1(4), has commenced action against all persons against whom the person might reasonably be considered as having a cause of action for or in respect of the injury, death or damage to person or property as described in subparagraph (a)(i),

                            (B)  the application is not made by or on behalf of an insurer in respect of an amount paid or payable by the insurer by reason of the existence of a contract of insurance and that, subject to subsection 45.1(4), no part of the amount sought to be paid by the Facility Association is sought in place of making a claim or receiving a payment which is or was payable by reason of the existence of a contract of insurance and that no part of the amount sought will be paid to an insurer to reimburse or otherwise indemnify an insurer in respect of any amount paid or payable by the insurer by reason of the existence of a contract of insurance, and

                            (C)  that except as disclosed in the applicant's affidavit, the person is and was not entitled to recover, from any source, nor to receive compensation or services or benefits with a pecuniary value, for or in respect of an injury, death or damage to person or property as described in subparagraph (a)(i), and

                    (iv)  that the action was defended throughout to judgment or that there was a default or a consent or agreement by or on behalf of the defendant and that the solicitor complied with section 45.8, and

             (c)  the affidavits, together with

                      (i)  a copy of the statement of claim,

                     (ii)  a certified copy of the judgment,

                    (iii)  the assignment of judgment, and

                    (iv)  where applicable, the solicitor's taxed bill of costs,

are forwarded to the Facility Association.

Objection to application

   45.5 (1) Where, on an application to the Facility Association,

             (a)  all the documents required under section 45.4 are not forwarded;

             (b)  a matter required to be in an affidavit is omitted;

             (c)  the amount requested to be paid by the Facility Association is, in its opinion, greater than the amount to which the applicant is entitled under sections 45.2 to 45.21; or

             (d)  for any reason, the Facility Association wishes the application for payment to go before a judge of the Trial Division for an order for payment by the Facility Association,

the Facility Association shall, within 30 days of receipt of the application, advise the person of its objections to the application for payment and, subject to subsection (2), advise the person that he or she must obtain an order of a judge of the Trial Division for payment by the Facility Association.

             (2)  The Facility Association shall advise the person to remedy an objection it may have against payment and if the objection is remedied to the satisfaction of the Facility Association, it shall then make payment as provided in sections 45.2 to 45.4.

Application to Trial Division

   45.6 When a person is advised that payment shall not be made except by order of a judge of the Trial Division, the person may apply to a judge of the Trial Division, upon notice to the Facility Association, for an order directing payment by the Facility Association of the amount in respect of the judgment to which the person is entitled under sections 45.2 to 45.21.

Directed payment

   45.7 (1) The judge may order the Facility Association, subject to sections 45.2 to 45.21, to pay the amount with respect to the judgment to which the judgment creditor is entitled in accordance with those sections, if the applicant in his or her application satisfies the judge

             (a)  that the applicant has obtained a judgment under section 45.3, stating, whether against an owner, driver or a Party Unknown, the amount of the judgment, and the amount owing on the judgment, at the date of the application;

             (b)  that, subject to subsection 45.1(4), the applicant has commenced an action against all persons whom he or she might reasonably be considered as having a cause of action for an injury, death or damage to a person or property arising from the operation, care or control of the automobile by the owner or driver against whom the judgment was obtained;

             (c)  that the applicant has prosecuted every action in good faith to judgment or dismissal;

             (d)  that with respect to the amount to be paid, the applicant has not recovered and is and was not entitled to recover, from any source, an amount for or in respect of the injury, death or damage to person or property described in paragraph (b);

             (e)  that with respect to the amount to be paid, the applicant has not received and is and was not entitled to receive, from any source, compensation or services or benefits with a monetary value for or in respect of the injury, death or damage to a person or property described in paragraph (b);

              (f)  that the application is not made by or on behalf of an insurer in respect of an amount paid or payable by the insurer because of the existence of a contract of insurance, and that, subject to subsection 45.1(4), the amount or part of the amount sought to be paid out by the Facility Association shall not be sought in place of making a claim or receiving a payment that is or was payable because of the existence of a contract of insurance and that no part of the amount sought will be paid to an insurer to reimburse or otherwise indemnify an insurer respecting an amount paid or payable by the insurer because of the existence of a contract of insurance; and

             (g)  that the amount sought to be paid out by the Facility Association does not exceed the maximum amount payable under section 45.17.

             (2)  The Facility Association may appear and be heard on the application and may show cause why the order should not be made.

Failure to defend

   45.8 (1) Where an action is commenced and the defendant

             (a)  fails to file and serve a defence;

             (b)  fails to appear in person or by counsel at an examination for discovery, trial or appeal or notifies the plaintiff that such failure is likely; or

             (c)  consents to the entering of judgment,

an order may not be made under section 45.7, and money is not required to be paid by the Facility Association respecting a judgment obtained on those proceedings, unless, before proceeding further, the plaintiff gives written notice, as prescribed by regulation, to the Facility Association of that failure, notification, consent or agreement and affords it not less than 30 days to investigate the circumstances of the claim and an opportunity to take the action it considers advisable under subsection (2).

             (2)  Notwithstanding subsection (1), a judge may upon application by the Facility Association, extend the time within which the Facility Association may investigate the circumstances of the claim but that extension shall be for not more than 60 additional days.

             (3)  Where the Facility Association receives notice under subsection (1), it may, if it considers it advisable, on behalf and in the name of the defendant, take any step to enforce the defendant's right to compensation or indemnity arising from the claim available to the defendant, and take a step in the proceedings, including a consent to judgment in an amount that it considers proper in the circumstances, and all acts done under this subsection shall be considered to be the acts of the defendant.

Applicant to assign judgment

   45.9 (1) Money is not required to be paid by the Facility Association to comply with an order under section 45.7 until the judgment of the applicant or the portion of the judgment for which the Facility Association is liable or the applicant's interest in the judgment is assigned to the Facility Association.

             (2)  Upon filing a copy of the assignment of judgment, certified by the Facility Association to be a true copy, with the registrar of the court in which the judgment was obtained, the Facility Association shall, to the extent of the amount of the assignment, be considered to be the judgment creditor.

             (3)  Where execution is issued in the name of the judgment creditor and a copy of the assignment of judgment, certified under subsection (2), is filed with the sheriff having the order of seizure and sale, subsection (2) shall apply with the necessary changes.

Party Unknown

45.10 Where injury to or the death of a person arises out of the operation, care or control of an automobile in the province but the identity of the automobile, the owner and the driver of it cannot be established, a person who would have a cause of action against the owner or driver in respect of that injury or death may, upon notice to the Facility Association, apply to a judge of the Trial Division for an order permitting the person to bring an action in the Trial Division against a nominal defendant designated as a Party Unknown.

Action against Party Unknown

45.11 The judge may make an order permitting the applicant to bring an action against a Party Unknown if he or she is satisfied that

             (a)  there are reasonable grounds for bringing the action;

             (b)  all reasonable efforts have been made to ascertain the identity of the automobile involved and of the owner and driver of it;

             (c)  the identity of the automobile involved and of the owner and driver of it cannot be established; and

             (d)  the application is not made by or on behalf of an insurer in respect of an amount paid or payable because of the existence of a contract of insurance, and that, subject to subsection 45.1(4), no part of the amount sought to be recovered in the intended action is sought in place of making a claim or receiving a payment that is or was payable because of the existence of a contract of insurance, and that no part of the amount sought will be paid to an insurer to reimburse or otherwise indemnify the insurer respecting an amount paid or payable by it because of the existence of a contract of insurance.

Facility Association pleadings

45.12 In an action brought against a Party Unknown under sections 45.10 and 45.11 the Facility Association

             (a)  has all the rights of a defendant in the action, but nothing in this section imposes liability upon the Facility Association; and

             (b)  may plead the general issue and give the special matter in evidence.

Dismissal where driver unknown

45.13 (1) Where an action for damages for injury to or the death of a person, arising out of the operation, care or control of an automobile in the province has been dismissed and the judge in dismissing the action states in writing that the injury or death arose out of the operation, care or control of an automobile

             (a)  the identity of which and the owner and driver of which is not established; or

             (b)  at a time when that automobile was, without the consent of the owner, in the possession of a person other than the owner and the identity of the driver is not established,

sections 45.10 and 45.11 shall be available for a period of 3 months from the date of the dismissal, notwithstanding an Act limiting the time within which an action may be brought.

             (2)  Where, under subsection (1), an application is made under section 45.10, paragraph 45.11(c) does not apply.

Party Unknown added as defendant

45.14 (1) Where an action for damages for injury to or the death of a person arising from the operation, care or control of an automobile in the province is commenced and the defendant by the pleadings alleges that the plaintiff's damage was caused by a Party Unknown, the plaintiff may apply to add the Party Unknown as a defendant and section 45.11 shall apply with the necessary changes.

             (2)  This section does not limit or restrict a right to add or join a person as a party to an action under the Rules of the Supreme Court.

Application for declaratory judgment

45.15 (1) Where judgment has been obtained against a Party Unknown, the Facility Association may bring an action against a person for a declaratory judgment, declaring that person to have been, at the time of the accident, the owner or driver of the automobile in respect of the operation, care or control of which the judgment was obtained, and the court may give judgment accordingly.

             (2)  An action under subsection (1) may be commenced in the Trial Division.

             (3)  When a declaratory judgment has been given under this section,

             (a)  the person declared in the judgment to be the owner or driver shall be considered to have been the defendant in the action in which judgment was obtained against the Party Unknown and the judgment against the Party Unknown shall be considered to be a judgment against that person; and

             (b)  the Facility Association shall be considered to have obtained a judgment against that person for the amount of all money paid by it in respect of the judgment against the Party Unknown and shall accordingly have all the rights of a judgment creditor, including the right to recover money that would have been payable in respect of the death or injury under a contract of insurance that was in force at the time of the accident, notwithstanding an Act limiting the time within which an action may be brought.

             (4)  Where the injury or death arose out of the operation, care or control of the automobile at a time when the automobile was, without the owner's consent, in the possession of some person other than the owner, that action shall be disposed of in the same manner as though the identity of the owner had not been established.

Reasonable effort required

45.16 In an action against a Party Unknown, a judgment against a Party Unknown shall not be granted unless the court in which the action is brought is satisfied that all reasonable efforts have been made by the claiming party to ascertain the identity of the automobile and the owner and driver of it and that that identity cannot be established.

Exemption from payment

45.17 (1) The Facility Association is not required to pay

             (a)  an amount in respect of a judgment in favour of a person who ordinarily resides outside the province, unless that person resides in a jurisdiction that provides substantially the same benefits to persons who ordinarily reside in the province, but a payment shall not include an amount that would not be payable by the law of the jurisdiction in which that person resides; or

             (b)  more than $200,000, exclusive of costs for injury to or death of 1 or more persons or damage to property resulting from a single accident occurring on or after the commencement of this paragraph except that payments with respect to damages for damage to property shall be limited to claims for damages greater than $250,

but, where the judgment creditor recovers or is or was entitled to recover, from any source, for or in respect of an injury, death or damage to person or property arising out of the operation, care or control of the automobile by the owner or driver against whom the judgment was obtained, whether or not in the action damages were claimed for, or, in respect of the injury, death or damage, or where the judgment creditor receives, or is or was entitled to receive, from any source, compensation or services or benefits with a monetary value for or in respect of the injury, death or damage, the amount recovered or received and the amount that the judgment creditor is or was entitled to recover or receive and the amount of the compensation and monetary value of any service or benefits received or that the judgment creditor is or was entitled to receive shall be deducted from the amount of damages included in the judgment and only the amount of damages included in the judgment after those deductions, or the maximum amount payable under paragraph (b), whichever is less, is required to be paid by the Facility Association.

             (2)  Notwithstanding subsection (1), in computing the amount payable by the Facility Association, a reduction shall not be made

             (a)  with respect to an amount recovered or recoverable by the judgment creditor under a contract of life insurance, where the amount is payable in respect of the death of the person;

             (b)  with respect to compensation or the monetary value of services or benefits which the judgment creditor received, or is or was entitled to receive, under the Hospital Insurance Agreement Act, the Medical Care Insurance Act, the Social Assistance Act or the Workers' Compensation Act; and

             (c)  with respect to

                      (i)  an amount recovered by the judgment creditor, or which the judgment creditor is entitled to recover, from those sources prescribed by regulation, or

                     (ii)  an amount of compensation, or the monetary value of benefits or services, received by the judgment creditor, or which the judgment creditor is entitled to receive, from those sources prescribed by regulation or where the compensation, benefits or services are of a kind prescribed by regulation.

             (3)  In this section "residence" shall be determined as of the date of the accident as a result of which the damages are claimed.

Costs not payable

45.18 (1) Subject to section 45.2, costs, other than costs taxed on a party and party basis, are not required to be paid by the Facility Association.

             (2)  Where an action has been maintained in part by an insurer and a part only of the amount of the judgment in the action is payable by the Facility Association, there shall not be paid by the Facility Association more than that part of the party and party costs of the action that bears the same ratio to the whole of those costs as the part of the judgment payable by the Facility Association bears to the whole amount of the judgment.

Supreme Court procedure applies

45.19 The practice and procedure of the Supreme Court of Newfoundland or the court in which the application or action is brought, including the right of appeal and the practice and procedure relating to appeals, apply to an application or action under sections 45.2 to 45.21.

Prohibition re damages

45.20 (1) An application for the payment of damages shall not be made to the Facility Association by or on behalf of a government of a country or state including the governments of Canada, the United States of America or a province, state or political subdivision, corporation or agency of those governments.

             (2)  Subsection (1) shall not apply to applications under the Hospital Insurance Agreement Act, the Medical Care Insurance Act, the Social Assistance Act or the Workers' Compensation Act.

Consent considered given

45.21 For the purposes of sections 45.2 to 45.20 all actions against owners and drivers whose liability results in payment by the Facility Association shall be considered to have been taken in their own right and all actions taken by the Facility Association in the settlement of claims and actions on their behalf shall be considered to have been taken upon their instructions and with their full consent.

Regulations

45.22 The Lieutenant‑Governor in Council may make regulations

             (a)  respecting forms to be used for the purposes of sections 45.2 to 45.21;

             (b)  prescribing sources for the purposes of subparagraph 45.17(2)(c)(i); and

             (c)  prescribing sources of compensation, benefits and services, and kinds of compensation, benefits and services under subparagraph 45.17(2)(c)(ii).

RSN 1990 cI‑10 Amdt.

        4. (1) Section 97 of the Insurance Companies Act is repealed and the following substituted:

Facility Association continued

      97. The unincorporated non‑profit association of insurers known as the Facility Association is continued under the name Facility Association.

             (2)  Subsections 98(1), (2) and (3) of the Act are repealed and the following substituted:

Facility Association

      98. (1) An insurer licensed to transact automobile insurance in the province is a member of the association and shall be bound by the articles and by‑laws of the association.

             (2)  The association shall, in its articles of association or by‑laws and in terms not inconsistent with this Act, establish a plan to be known as the Plan of Operation

             (a)  to provide automobile insurance to owners and licensed operators of automobiles who would be unable to obtain that insurance without the Plan of Operation; and

             (b)  to provide, in accordance with sections 45.1 to 45.21 of the Automobile Insurance Act, payment with respect to claims for damages made by persons who are not insured under a contract within the meaning of section 33 of the Automobile Insurance Act and who have no other insurance or who have other insurance that is inadequate with respect to the damages claimed,

and shall, in accordance with those articles of association or by‑laws and this Act, establish and implement the Plan of Operation and carry out its obligations in the province with respect to that plan.

             (3)  The association shall

             (a)  in accordance with the Plan of Operation referred to in paragraph 2(a) ensure through its members that a contract of automobile insurance is provided with respect to every application for automobile insurance submitted under the Plan of Operation to an insurer by an agent, broker or representative on behalf of a person; and

             (b)  in accordance with that aspect of the Plan of Operation referred to in paragraph (2)(b), carry out, in accordance with sections 45.1 to 45.21 of the Automobile Insurance Act, its obligations with respect to applications made to it for payment of damages under those sections.

             (3)  Subsections 99(3) and (4) of the Act are repealed and the following substituted:

             (3)  The association shall appoint an agent for service in the province and shall, in writing, notify the superintendent of the name of that agent for service and that agent's address and the superintendent shall file that notice.

             (4)  Where an agent for service appointed under subsection (3) dies, resigns or has his or her appointment revoked, the Facility Association shall immediately appoint another agent for service in the same manner as under subsection (3).

             (5)  The association shall immediately, in writing, notify the superintendent of a change of address of its agent for service and the superintendent shall file that notice.

             (6)  The address of an agent for service referred to under subsections (3), (4) and (5) shall be an office that is accessible to the public during normal business hours.

             (7)  Service of process, a notice or document in a civil, criminal or administrative action shall be considered to have been made upon the association if made upon the agent for service in the following manner:

             (a)  by personally serving the agent for service as shown in the notice last filed with the superintendent;

             (b)  by delivery of the notice or document to the address of its agent for service as last filed with the superintendent; or

             (c)  by sending the notice or document by registered mail to that address.

             (8)  Obligations of the association under this or the Automobile Insurance Act that are not carried out by the association in accordance with those Acts and liability of the association arising out of those obligations shall be considered to have been assumed by the insurers licensed under this Act for automobile insurance and the insurers shall be jointly and individually liable for damages arising out of those obligations in respect of which the association is or would be liable under this Act or the Automobile Insurance Act.

             (4)  The Act is amended by adding immediately after section 99 the following:

Assessments

   99.1 The association may, in accordance with its Plan of Operation, impose assessments on each member for the purpose of meeting the operating costs of the association and the Plan of Operation and each member shall, in accordance with the Plan of Operation, pay to the association those assessments which are imposed.

RSN 1990 cJ‑3 Rep.

        5. (1) The Judgment Recovery (Nfld.) Ltd. Act is repealed.

             (2)  Notwithstanding subsection (1), where an action is commenced under the Judgment Recovery (Nfld.) Ltd. Act before the commencement of this Act, or where an accident involving an automobile occurs before the commencement of this Act, that action shall be governed by the Judgment Recovery (Nfld.) Ltd. Act and that Act shall be considered to be in force for the purpose of those actions until all those actions have been settled or dealt with in accordance with the Judgment Recovery (Nfld.) Ltd. Act.

Commencement

        6. This Act comes into force on July 1, 1994.