Open Letter to UCP MLAs regarding the Auto Insurance Advisory Committee
Dear UCP Caucus,
As a victims’ rights advocate for nearly three decades, I was disappointed when Alberta Treasury Board & Finance’s Automobile Insurance Advisory Committee posted online a push poll (propaganda posing as a public opinion survey), telegraphing TBF-AIAC’s likely preordained recommendation next month that the UCP government engage in unjust, unnecessary and unconservative overregulation by confiscating fair compensation rights of innocent Albertans injured by reckless drivers to redistribute those funds to guilty wrongdoers as enhanced (on paper, at least) “no-fault” benefits and to the multi-national, multi-billion dollar insurance industry in the form of artificially padded profit margins.
Considering data recently revealed by the government’s chief insurance actuary proving that bodily injury frequency, severity and claims costs per vehicle are all dropping (contrary to insurance lobby tales of an industry mired in ongoing crisis due to skyrocketing injury cases), UCP MLAs should stand up for vulnerable Albertans and resoundingly reject any such reprehensible recommendation.
Instead, our government should remove unnecessary regulations that bar auto insurers from offering consumers at a competitive price medical and disability benefits in excess of the mandatory minimum, just as policyholders currently can purchase liability coverage over and above the $200,000 compulsory amount. The standard auto policy required by all Alberta motorists covers tort rights (under Section A liability) and “no-fault” disability and medical benefits (over $40,000 for each pursuant to Section B). The latest statistics show bodily injury claims costs per insured vehicle at under $400, less than half of what insurers charge policyholders for basic coverage (and less than a third of what insurers charge the average Albertan for an auto insurance policy if you include collision coverage). Evidently, any suggestion that Alberta auto insurers collecting over $5 billion in premiums annually (plus massive revenues earned investing those premiums and accumulated surplus capital) cannot afford bodily injury payouts is patently false, as is any insinuation that due to a contrived auto insurance “crisis”, Albertans have no choice but to give up either tort rights or medical/disability coverage. Alberta motorists can (indeed must) have both. This is what I advised the Committee.
Given the slanted composition of this Committee, perhaps the preposterous push poll it penned and posted should come as no surprise. For example, Committee member Shelley Miller is a longtime opponent of the tort rights of innocent injured auto accident victims to receive full and fair compensation from companies that insure the careless motorists who hurt them. Ms. Miller gleefully explains her role in 1999 tort deform (she calls it “reform”) in New South Wales, Australia, where she oversaw the elimination of the pain and suffering compensation rights of over 90% of that jurisdiction's injured traffic accident victims: "The reform occurred over objections by executives of the Law Society and the Bar Association of NSW, who opposed further restriction of the rights of traffic injury victims to have the monetary value of their pain and suffering judicially determined. The reform also occurred without extensive evidence that awards for pain and suffering were too high for NSW traffic victims and did not effectively console injured persons, or that the price of the average motor accident insurance premium was prohibitive." Said Miller of the process, "It was so much fun." Hopefully if this insurer-friendly Committee (chaired by a “consumer rep” employed for decades by insurance companies) proposes jettisoning tort rights in favour of a private sector “no-fault” scheme (such as currently exists in Ontario, where auto insurance rates are much higher than in Alberta), our UCP government will wisely say “no” to no-fault.
It is a fundamental principle of corrective justice that culpable tortfeasors are legally liable (through their insurers) to compensate the people they harm for the pain, suffering and other damages wrongfully inflicted upon those injured victims. Keeping auto insurance rates reasonably stable for good drivers should involve ending the artificial oversubsidization of bad drivers and reducing the number of auto accident victims, not the compensation for those victims. Political plans devised to deprive innocent injured car crash victims of full and fair compensation for pain and suffering and loss of enjoyment of life in an attempt to avoid an increase in insurance premiums for others are flagrantly discriminatory and an affront to human dignity -- see the scholarly and unanimous decision of our Alberta Court of Appeal in Ferraiuolo v. Olson, eloquently written by the Honourable Chief Justice of Alberta, Mrs. Catherine Fraser.
I respectfully reject the insurance lobby’s spurious allegations that Alberta auto insurance is an incredibly unsustainable, no longer profitable, unworkable mess, urgently requiring extreme (and unconstitutional) regulatory intervention to cap or outright eliminate fair pain and suffering compensation payable by insurers of careless motorists to innocent Albertans suffering chronic pain or other significant injuries. Albertans (like Conservative MP Kerry Diotte’s wife Clare) know that serious injuries such as chronic pain, concussions and PTSD are not “minor owies” that can be fixed with a Band-Aid, and that wrongdoers must be held fully accountable for the injuries and carnage they cause on our roadways.
Those with a fiscal clue (including Warren Buffet) know that even when some insurers complain that claims costs and operating expenses (conveniently inflated by bloated C-suite remuneration) might on occasion marginally outpace premiums, these colossal corporations are still netting a fortune in profits by investing those plentiful premiums and capital reserve funds.
Well managed insurers, of course, have proudly posted robust investment income and underwriting profits (a nice bonus, but generally not required for overall profitability) for 2019. For example, AMA recently announced a banner year of nearly $37 million in underwriting profits (premiums in less claims and expenses out) to go along with a little under $9.5 million in investment income. Wildly successful Intact Insurance (the Canadian insurance corporation enjoying the largest market share in the Alberta auto insurance biz) recently announced 2019 profits of over three quarters of a billion dollars. Insurers are pleading poverty and begging for UCP government protection from innocent injured Albertans, whilst simultaneously bragging to their well-heeled investors and laughing all the way to the bank. By the way, Intact’s CEO reportedly rakes in a salary of over $8.5 million per year -- and yet insurers claim they urgently need government assistance to gut legal compensation for innocent injured Albertans. Please tell me you’re not buying the BS the insurance lobbyists are shoveling. With recent premium increases facilitated by the rate cap removal, coupled with a precipitous decline in traffic (and therefore traffic accidents and injuries) due to the COVID-19 outbreak, Alberta auto insurer profits in 2020 are expected to substantially outpace even 2019’s rosy profit figures, all without the government tag-teaming with insurers to re-victimize innocent injured Alberta auto accident victims.
Let’s also put the lie right now to the fallacious insurance lobby line that the courts have misinterpreted the Minor Injury Regulation, leading to “unintended loopholes” that need to be patched. As you know from reading the position paper attached to to the email I sent you six months ago, the “minor injury” cap always was clearly intended by Ralph Klein’s government (which enacted it in 2004) to apply only to “minor injuries”, being soft tissue injuries that heal relatively quickly, i.e. within about three months with prompt and proper protocols treatment, generously provided under standard auto policy Section B accident benefits coverage.
Trust me, I know that it takes courage to stand up to powerful auto insurance lobbyists. Thank you for having the courage and common decency to fight for fairness for ordinary Albertans and against the insurance lobby’s unjust, unwarranted and frankly unAlbertan demand that you add insult to injury by regulating away the civil legal rights of severely normal Albertans wrongfully injured by negligent motorists to full and fair compensation for their chronic pain, suffering and loss of enjoyment of life. Well-connected, Ontario-based auto insurance lobbyists (such as Koolsbergen & Power) are encouraging you to blame the victims; to kick vulnerable, innocent injured Albertans when they’re down. Albertans like Stephanie MacNeil -- whose letter to the editor was featured in the Edmonton Journal about a month before TBF (with IBC whispering in its ear, no doubt) appointed an “insurance industry all-star team” as its expert Auto Insurance Advisory Committee -- know full well that’s not the least bit compassionate and courageous; it’s cowardly and despicable. If TBF civil servants are driving this review the wrong way, secretly scheming to further hike premiums while gutting compensation for innocent victims, it’s time for you to grab the steering wheel, correct course, take the off-ramp and get back on the right road.
Let’s be clear: those who want to turf tort law and enact a no-fault regime believe that an innocent child mowed down in a marked crosswalk by a distracted driver doesn’t deserve fair compensation for her pain and suffering. “After all,” they say, “she didn’t lose income or have to pay out of her own pocket for the months of therapy she needed to recover from her physical injuries and mental trauma.” Do these no-fault fans have no compassion? Do they not have children of their own? No-fault robs from the innocent to unjustly enrich the guilty and their insurers. Will you sit idly by while this happens -- or will you stand up and stop this chicanery?
I appreciate you taking the time to inform yourselves on this issue rather than letting insurance lobbyists and TBF bureaucrats meet behind closed doors to draft draconian legislation and disastrous regulatory amendments absent informed input and direction from our elected representatives -- and not just the Finance Minister and Premier, but also those of you with law degrees including the Justice Minister, the Health Minister and Edmonton’s lone UCP MLA (my MLA!), the rest of cabinet and indeed every member of the UCP caucus. You all know you weren’t elected to seal clap in the legislative assembly and be fawned over by sycophantic cheerleaders at party AGMs & assorted grip ‘n’ grins, but rather to champion the rights of vulnerable ordinary Albertans. As a lawyer and proud UCP member, I respectfully request that you kindly remember what the “C” in UCP stands for, and leave harebrained schemes like turfing tort law in favour of a no-fault system to socialist governments such as BC’s inept Horgan NDP regime. Thank you for taking an interest in this important issue, and for solemnly undertaking to make your voices heard on behalf of severely normal, innocent Albertans (mostly women and children) wrongfully injured by reckless drivers.
Should you have any questions or concerns with respect to the foregoing, please do not hesitate to contact the writer. Thanks again.
K. Mark McCourt, Barrister and Solicitor
President, CEO, Founder & Principal Counsel
The McCourt Law Offices Group of Companies
(Mark McCourt Professional Corporation and Herbert Patrotage Holdings Inc.)