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

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.”