A Suggested Change at ICBC To Benefit British Columbians
Whether you are a plaintiff lawyer, a defence lawyer, an adjuster or someone insured with ICBC I think we can all agree that there is one ICBC practice that could change to better serve British Columbians. I’m talking about the practice of assigning the same adjuster to deal with Tort and No-Fault Benefit claims.
As I’ve previously discussed, ICBC usually fulfills two roles in the context of injury claims. The first is that they insure people for “no-fault” benefits. If you are insured, whether or not you are at fault for a collision ICBC provides some basic coverage for medical/rehabilitation expenses and a modest wage loss benefit in the event of total disability. If you are seeking coverage ICBC assigns an adjuster to process your claim no-fault benefits.
At the same time ICBC usually provides coverage to the at fault party for any claims made against them. When a faultless party is injured and wishes to be compensated for the full extent of their damages they make a tort claim. ICBC assigns an adjuster to process these tort claims. The difficulty, however, is that ICBC typically assigns the same adjuster to deal with the faultless parties claims for no-fault benefits and to process the tort claim made against the at fault party.
As a business decision ICBC’s policy makes sense. Why assign two people to look after various claims being advanced as a result of a single event? It is more cost effective to get one adjuster to learn about the crash, the parties involved, the various injuries and the claims being advanced. As a practical matter, however, one person cannot fulfill both these roles in a completely impartial way.
In reality adjusters processing a no-fault benefits claim have a very different duty compared to an adjuster processing a tort claim. In a no-fault benefits claim the adjuster owes a duty to the injured party to provide them with their insurance benefits. If therapies are required these should be covered. If disability occurs wage loss benefits should be provided.
In tort claims, however, the adjuster owes a duty to the at fault party. If claims are being advanced the at fault party will want those settled for as little as possible as the funds are paid from their coverage. It is difficult to imagine how one adjuster can fulfill these competing duties fairly and impartially. The conflicting duties create an inherent conflict of interest. (You can click here to read an article providing a real world example of how this conflict can play out to harm the interests of a person injured through no fault of their own).
After reading this you may be asking yourself whether ICBC’s practice is lawful. Unfortunately, the answer is yes. This practice has been brought before the Courts and is tolerated.
However, just because a practice is accepted does not make it right. Since the Courts are not able to correct this practice the ability to change is in the hands of ICBC.
The solution is simple. ICBC can assign separate adjusters to deal with tort and no-fault claims. Once done ICBC can set up internal ‘walls’ to prevent the adjusters from accessing each others files. This would add more fairness to the application process for no-fault benefits. This would also help ensure that information shared by a party with their insurer to receive medical treatment is not automatically disclosed to the agent of the person responsible for causing the injuries. This is a proposed change, I hope, we could all agree on.
As always, feedback is welcome on this forum and I’d appreciate views from others about this topic, particularly views from people who feel these proposed changes would not be beneficial.