ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Posts Tagged ‘ICBC Underinsured Motorist Protection’

BC Court of Appeal Denies Severe Injury Claim Because Teenaged Plaintiff “Ought to Have Known” Vehicle Driven Without Consent

August 1st, 2017

Reasons for judgement were published today by the BC Court of Appeal denying a Plaintiff access to a pool of money intended to compensate people injured at the hands of uninsured motorists.

In the recent case (Schoenhalz v. ICBC) the Plaintiff, who was 17 at the time, was badly injured while riding as a passenger in a vehicle involved in a 2007 collision.  The Plaintiff suffered spinal fractures, various burns to her body, dental injuries and a pelvic fracture.  The driver of the vehicle was found to be negligent and damages of $282,992 were assessed.

The Court found, however, that the driver of the vehicle was not operating it with either the express or implied consent of the owner.  Accordingly the lawsuit against the vehicle owner was dismissed.    The driver was 15 years of age at the time and did not have a license.  The Court concluded that “at the time of the accident (the Plaintiff) knew that (the driver) was age 15 and did not have a driver’s license.”.

ICBC denied coverage to the Plaintiff and the current lawsuit was commenced.   As discussed several years ago, a Plaintiff cannot access section 20 uninsured motorist funds if they “at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.”

A similar exclusion exists if a Plaintiff seeks to access their own Underinsured Motorist Protection coverage.  Section 148(4)(c) of the Insurance (Vehicle) Regulation lets ICBC off the hook in circumstances where the Plaintiff ” is an operator of, or a passenger in or on, a vehicle that the insured knew or ought to have known was being operated without the consent of the owner.

In finding ICBC was right to deny coverage the BC Court of Appeal noted as follows:

[44]         Having canvassed counsel on this line of cases and on the “adult activity” line most recently considered in Nespolon v. Alford (1998) 110 O.A.C. 108, lve. to app. dism’d.[1998] S.C.C.A. No. 452, I do not find it necessary to consider them further in this case. Both lines concern the law of negligence as applied to young persons – but this is not the context before us. As I read s. 91, this case is concerned only with whether a reasonable person in the plaintiff’s place ought to have known Ms. Reeves was driving without the owner’s consent. In my opinion, a reasonable person would (as the trial judge here acknowledged) have known this; and even if one took into account the plaintiff’s age and experience, the test would also be met. As Mr. Brown submits, the plaintiff, age 17, had a driver’s license and was aware Ms. Reeves was too young to be licensed and that the owner’s permission was needed to drive the Camaro.

[45]         The trial judge reasoned that while it would not be reasonable for an adult to assume that Luke “was able to give [the girls] Steven’s permission when he directed them to take the car”, it had been reasonable for an “incredibly young” 17-year-old girl to have believed he would. With respect, it seems to me that the trial judge here erred in applying a largely subjective standard in the face of statutory wording that has long connoted a well-understood objective standard. With respect, a reasonable person “ought to have known”, and indeed would have known, that neither Steven Hammond nor his mother was consenting to the Camaro being driven by an unlicensed 15-year-old. I agree with counsel for ICBC that as a matter of public policy, there is no rationale for holding the plaintiff to a lower standard in relation to her decision to become the passenger of Ms. Reeves.

[46]         In my opinion, if Ms. Schoenhalz did not “know” that the car was being driven without the owner’s consent, she “ought to have known” that this was the case. I would allow the appeal and set aside the order granted by the trial judge in this proceeding.

 


Court Directs Early UMP Payment Noting “The Application of Law Should Not Be Blind to Practical Solutions”

September 6th, 2013

Reasons for judgement were released by the BC Supreme Court, Kelowna Registry, creating a practical solution to a real world problem, getting a judgement paid in the face of ongoing claims which may exceed a Defendant’s coverage.

In this week’s case (Clark v. Bullock) the Plaintiff along with other individuals were injured in a serious collision.  The Plaintiff’c claim proceeded to trial and damages of $550,000 were assessed.  The Defendant’s had $5,000,000 of liability coverage however, there were ongoing claims involving injured infants and there was “a real and legitimate concern that there may not be sufficient coverage” to pay all the claims.

The Plaintiff had Underinsured Motorist Protection however a practical difficulty arose in that those funds could not be forced to be paid until it can be proven the Defendant’s were underinsured.  In this case that could have taken many years as the infants claims were not yet ready to be quantified.  This left the 67 year old plaintiff facing a real possibility that he could not receive payment on his judgement for a number of years.  The Court, with the consent of the parties, fashioned a sensible solution and ordered that the money be paid via the UMP policy even though it technically was not accessible at this time.  Mr. Justice Betton provided the following sensible reasons:

 

[23]         In this particular case, ICBC determined that it would waive the entitlement that it has by virtue of the legislation to require that Mr. Clark exhaust all of his remedies, including awaiting the payment of his pro rata entitlement to the $5,000,000 coverage under the Bullock policy; that is, ICBC would waive its entitlement to insist on all of those steps being taken before accessing the underinsured motorist protection coverage.

[24]         The condition it attaches is that it requires a declaration from court that would protect it against the potential for having to pay out more than the amount of the Bullock policy.

[25]         With that concession or that position being adopted by ICBC, these parties come before me with a request for a declaration. That declaration essentially allows ICBC to access the underinsured motorist protection coverage available to Mr. Clark to pay the amount that Justice Barrow has determined Mr. Clark is entitled to with adjustments as agreed to by the parties….

[30]         In my view, the interpretation of the statutes and the application of the law should not be blind to practical solutions when parties, fully cognizant of their rights and entitlement, present such a proposal. The court should make efforts to facilitate that, so long as it is not running afoul of legislation or established legal precedent, and does not prejudice parties who would have an interest in the pool of funds that they would have available to them.

[31]         I am satisfied in these circumstances that, indeed, this arrangement is in the interests of both Mr. Clark and the Insurance Corporation of British Columbia, the applicants before me, and it does not prejudice or adversely affect the rights of the other entities, all of whom have been served with notice of this application and have chosen not to participate.

[32]         The only other entity which is not a party that may, in a general sense, have an interest in this type of situation would be the Public Guardian and Trustee who, through its statutory obligation, has an interest in protecting infants in this type of context.

[33]         I should say as well that all of those other parties are represented by counsel. No interested party in this matter is self-represented or unrepresented.

[34]         I have chosen and determined not to require that there be any notice to the Public Guardian and Trustee, or that it be served with this application, because I am satisfied that the declaration which I will be making does not adversely affect the infants who are plaintiffs in separate proceedings arising out of this collision. They will still have full access to their proportionate shares of the insurance policy limits of the Bullocks.

[35]         Accordingly, I will make the declaration.