Canadian Underwriter

Your client’s vehicle is damaged by a massive pothole. Is it covered and is the city liable?

January 15, 2020   by Jason Contant

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You’re on your way to work minding your own business when all of a sudden you drive over a massive pothole and damage your car. Does your auto insurance cover it and can the city be held liable?

In short, pothole damage is covered under optional auto insurance policies and the city can be held liable, but it’s very difficult to be successful in a pothole damage claim against the city. If a personal injury results, then statutory accident benefits might be available.

On Jan. 6, at least 12 vehicles were damaged in Toronto after hitting a massive pothole on the Gardiner Expressway. Although no injuries were reported, some vehicles were so damaged that they couldn’t be driven and had to be towed away, CityNews reported.

Pete Karageorgos, director of consumer & industry relations in Ontario with Insurance Bureau of Canada (IBC), told Canadian Underwriter Tuesday that damage from potholes is covered under optional collision or all-perils coverage.

A vehicle owner or insurer could then go to the city to collect, but they would have to prove their case, Karageorgos said.

The city can be held liable, but it’s very difficult to be successful in a claim against a city for damage caused by a pothole, said Edward Masters, a personal injury lawyer with Mann Lawyers LLP in Ottawa. “I would not expect an insurance company to make a claim against the city because of how hard it is to recover.”

Potholes in Ontario are addressed in Ontario Regulation 239/02: Minimum Maintenance Standards for Municipal Highways under the Municipal Act. Section 6.1 provides that only potholes exceeding both the surface area and depth set out in an accompanying table need to be repaired “after becoming aware of the fact.” A pothole is deemed to be acceptable (in a state of repair) if its surface area or depth is less than or equal to that set out in the table, Edwards noted.

For example, a pothole on a Class 1 highway must not exceed 600 cm² surface area and an 8 centimetre depth for more than four days.

“Even if a pothole is too big or deep, the municipality still has a certain time period within which it has to be repaired,” Masters noted. “But there is a further catch: the time limit for repairing a particular pothole only starts to run once the city has been put on notice of its existence. So, if nobody reports a pothole, the time limit for getting it fixed never starts to run.”

The size of what amounts to an unacceptably large pothole depends on the character of the street it inhabits, its speed limit and average daily traffic, Masters said. The type of road surface and the pothole’s location – on either the travelled portion of the road or the shoulder of the road – also determine how large a pothole has to be before it needs to be repaired and how long the municipality has to repair it (a paved surface is required to tolerate smaller potholes for a shorter period of time than an unpaved surface or a shoulder).

“The Municipal Act prescribes the size and age a pothole must be before the city can be held liable for the damage it causes to a motor vehicle. This explains why almost all claims made against municipalities for damage caused by potholes are unsuccessful.”

As infrastructure ages, might we see more of these types of claims (or are we seeing them happen more often)?

“As municipal budgets get squeezed, we may see more and larger potholes going unfixed for longer periods of time,” Masters said. “But given how hard it is to make a successful claim for pothole damage, I doubt we will see more of these claims. What we will see is more people with damaged cars and no recourse against the responsible city.”

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7 Comments » for Your client’s vehicle is damaged by a massive pothole. Is it covered and is the city liable?
  1. Frank Cain says:

    One of the more compelling reasons given as to why a municipality is not liable for pothole damage to vehicles is the municipality did not create the pothole – mother nature did, by the expansion and contraction of water under the road. No different than lightning striking a curbside tree and part of it falling on and damaging a parked vehicle. The city may own the tree, but no action of the city’s caused the damage.

    • william hazelton says:

      You are so confused that I feel that it is unfair to say more. Seriously though, seek help for your condition. Unless of course you work for those who are trying to avoid their responsibility. Then I would say, you know not what you say. Have a great day.

    • Barb Carter says:

      Frank, so if someone slips on ice/snow at a location I control I should not be held accountable because Mother Nature caused the snow and ice? We both know that isn’t how the Insurance Company or the courts look at it. In the case of the Municipality they are responsible for road maintenance, that is why we pay taxes. The tax payers should not be put in a position where we have to report these potholes in order for them to be repaired and to “maybe” be compensated. It is also having to have a level of trust that the Municipality is being truthful when claiming they weren’t aware of the pothole, hence not having to pay the claim. How does the public even know if it was or was not reported?

  2. william hazelton says:

    What utter BS. The roads of today are a disgrace. As far as city budgets being squeezed, that is only due to negligence on the part of all levels of government. They are continuing to spend never ending amounts of money on programs and services that should not even exist. All the while down loading costs onto individuals and their insurers. As far as the standards of road conditions acceptability, these are so called standards developed by those trying to avoid responsibility, GOVERNMENT.

  3. i’ve subrogated against municipalities for damages caused by “potholes” successfully! The municipality is responsible for keeping the roads safe and free of anything that can cause you damages. Although the window for notifying and recovering from the municipality is very small (2 weeks) it does not mean that you can’t successfully get compensated. Also, municipalities have scheduled road maintenance which means they should know the conditions of the roads they’re maintaining. If you hit a pot hole and damage your car, the accident will be held as an At Fault, unless successful recovery from the municipality can be achieved. Your insurance company should be doing everything possible to do the everything possible to recover. Anything less could be considered “bad faith”.

  4. Grace Medeiros says:

    Grace Medeiros
    January 20/20 at 9:18 am

    Definitely city if is fully responsible for the damages to your vehicle because of the pot hole. We are paying high taxes and if their responsibility to taking care of the roads. In regards city budget squeezed
    to bad they spend our money recklessly.

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