Cedric Stephens Emancipating motor claims victims
Senior Gleaner Writer Janet Silvera wrote a memorable piece last Wednesday. The subject: visual artist Trishaunna Henry’s spiritual journey in imagining and executing the slave monument ‘Lest we Forget’, which was commissioned by J. Wray & Nephew Limited and unveiled two days earlier at Appleton Estate in St Elizabeth. J. Wray & Nephew is owned by the Italian spirits multinational, Campari Group.
I was deeply moved by the photograph of the sculpture. The artist’s description of her experiences during the creative process captured the intensity of her feelings about the horrors of enslavement.
Ten days before, my daughter, a cultural historian, and I visited another vertically integrated but Jamaican-owned sugar estate in a beautiful valley in St Catherine. Alexis, like those of her generation, posted a message on social media immediately after a tour of the rum-making part of the factory. She remarked that enslaved persons’ contribution to that enterprise’s longevity and success had been omitted from the story of its past, and as it turned out, contrasted with that of its counterpart in Nassau Valley, St Elizabeth.
Today’s article will link the preceding brief ideas about enslavement to my March 29, 2018, article titled ‘Motor Insurance Law Short-Changing Accident Victims’. It featured a then 22-year-old woman who was injured in a car accident in 2014. According to the news report, she suffered brain damage, recurring headaches, seizures, blurry vision, and loss of movement in one arm and both legs. The court made an award to her of $36.2 million as compensation because of the negligence of the driver of a motor vehicle. He was covered by a policy of insurance issued under the Motor Vehicles Insurance (Third-Party) Risks Act that went into force in 1941.
I predicted in the article that the injured woman would only collect 5.5 per cent of the court award, or $2 million. The remaining 94.5 per cent, or $34.2 million, was not covered by the driver’s motor insurance policy. He was insured under what was called in the past an ‘Act policy’. That type of coverage is the minimum amount that was required by law and was sold as such.
Comprehensive and third-party motor policies at the time provided unlimited liability for personal injuries. Motor insurers discontinued the practice of providing unlimited liability for personal injuries many years ago. They substituted ‘any one person and/or any one accident’ limits.
In cases where a claim or series of claims arising out of one accident exceeded the policy limits, the claimant was expected to recoup the excess amount directly from the negligent third party. The insurer was only contractually obliged to pay the policy limit. The recovery process in these situations is often fraught with problems. The negligent party seldom has the financial resources to pay. Only a very small percentage of motorists would have assets to pay a personal injury award of $34.2 million.
Motorists often misunderstand the Road Traffic Act and Regulations and the connection with motor insurance. Speed limits, that is, the ‘maximum’ speeds at which vehicles must be driven on public roadways, are, among other things, set by the traffic law. The law setting out the legal framework for motor insurance, in contrast, specifies the ‘minimum’ amounts (or limits) for liability insurance for personal injury and property damage.
Over the years, the gap between the minimum amounts stipulated in the Motor Vehicles Insurance (Third-Party Risks) Act or MVITPRA and the size of court awards has increased sharply. It is assumed that the responsible minister will revise the limits in the MVITPRA with the same frequency as those that exist in the Minimum Wage Act.
Other factors that nine out of 10 motorists, insurers, and brokers ignore or are unaware of during the buying/selling process include:
o The size of court awards for personal injuries and property damage has increased faster than the rate of inflation in the economy;
o Multi-vehicle accidents occur from time to time in which many persons are killed or injured. The costs associated with these accidents often exceed tens of millions;
o The ages, professions, or businesses and injuries suffered by third parties often affect the amounts claimed by third parties;
o Cost estimates of the size of the repair/replacement costs of third-party property that may be damaged or destroyed are driven by the prices of new vehicles;
o Policy limits for personal injury and property damage offered by insurers are arbitrarily selected and are not based on analyses of real-world data; and
o The frequency of motor vehicle accidents has continued to increase over the years.
Motor insurance policies are often not fit-for-purpose and create nasty surprises for policyholders and innocent victims of road accidents like the 22-year-old woman. Despite these flaws, the authorities have continued to allow contracts of motor insurance to be mislabelled as ‘comprehensive’.
The minimum limit stated under the MVITPRA for personal injury in the example cited above is $2 million. That amount is only 58.25 per cent higher than the average selling price of ?20 for which an enslaved person was sold in 1780, according to the BBC. That ?20 in 1780 is equivalent in purchasing power today to about ?4,592.86. At the current exchange rate, the latter amount is equal to about $844,000 in Jamaican currency.
Successive administrations, led by persons who were ‘born ya’, have not considered it appropriate to increase the minimum thresholds for personal injuries for innocent victims of motor vehicle accidents.
Their legislative counterparts in most of the other English-speaking Caribbean countries in The Bahamas, Barbados, Belize, The Cayman Islands, and Trinidad & Tobago have done so long ago. In Barbados, for example, the minimum limit for personal injury to any one person is nearly 757 times higher than the average price that an enslaved person was sold during the 18th century.
The sad irony is that if the insurance industry was not Jamaicanised, most persons who sustained personal injuries in motor vehicle accidents would have had more adequate protection than obtains in 2023.
Cedric E. Stephens provides independent information and advice about the management of risks and insurance. For free information or counsel, write to: aegis@flowja.com or business@gleanerjm.com