Contributory Negligence Finding Does Not Reduce Deductions in ICBC UMP Claim
In my ongoing efforts to summarize historic UMP Arbitration decisions, I have recently been provided a 2005 arbitration award dealing with several issues including the deduction of CPP benefits in circumstances where a Plaintiff was found contributorily negligent.
In the 2005 case (H v. ICBC) the Claimant was injured in a 1996 collision. His claim proceeded to trial and his damages were assessed at just over $316,000 by the Jury. The Plaintiff was also found 10% contributorily negligent for failing to wear a seat belt.
The Defendant was underinsured and the Plaintiff applied under his own UMP Coverage for payment of damages. The Plaintiff had received CPP disability benefits of just over $65,000. ICBC sought to deduct the whole of this amount from the Plaintiff’s UMP claim. The Plaintiff opposed arguing that only 90% of the past payments should be deductible in keeping with the Jury’s finding.
Arbitrator Yule disagreed with the Plaintiff finding CPP benefit deduction can’t be reduced due to a contributory negligence finding. In coming to this conclusion Arbitrator Yule provided the following reasons:
8…Section 148.1(5) provides that an award of UMP compensation shall not exceed the amount of damages awarded, “minus the sum of the applicable deductible amounts”. As noted previously, one of the deductible amounts is an amount to which the insured is entitled under the Canada Pension Plan. On its plain wording, the full amount of the disability benefits to which the Claimant is entitled under the Canada Pension Plan are to be deducted from his UMP Claim. There is nothing in the wording of the UMP Regulations to suggest that deductible amounts are to be reduced in accordance with the percentage recovery of the Claimant. As the Respondent correctly argues, Part 7 payments, which a re also a deductible amount, are deducted in full regardless of the percentage recovery of a Claimant.
Like many UMP Cases, This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.