Unidentified Motorist Claims and the "Fixed Pie" of ICBC Funds


Reasons for judgement were released this week discussing the division of the limited funds available from ICBC when multiple parties successfully sue ICBC for damages as a result of injuries caused by an unidentified motorist.
In today’s case (Thoreson v. ICBC) the Plaintiff and his passenger were injured in a 2002 motorcycle accident near Vernon, BC.  Their motorcycle was run off the road by an unidentified driver.    ICBC was sued under s. 24 of the Insurance (Vehicle) Act and after trial the Unidentified driver was found 85% responsible for the crash and the Plaintiff driver was found 15% responsible.

Both the Plaintiff and his passenger settled the value of the claims.  The Plaintiff’s claim was settled for $125,000 and the passenger’s claim for $935,521.  To satisfy the damages both the Plaintiff and the passenger claimed damages from ICBC under section 24.  Mr. Justice Cole of the BC Supreme Court was asked determine how much of the $200,000 available in the section 24 ‘pool’ the Plaintiff was entitled to.

Ultimately the Court noted that this pool of money needs to be shared proportionately to their claims leaving the Plaintiff with only 11% of the pool or some $23,000.   The Plaintiff appealed arguing this result was unfair as the passenger was able to collect her judgement from his insurer (as he was found partially to blame).  The BC Court of Appeal dismissed the matter and upheld the trial judgement.  In doing so the Court provided the following reasons discussing the purpose behind the ICBC scheme of compensation for injury victims caused bu unidentified motorists:

[20]         Although I have some sympathy with the appellant’s predicament, in my view, his approach to the application of s. 24 ignores the legislative scheme of the applicable insurance coverage in this case and conflates a demand for payment with a claim under s. 24.

[21]         The appellant stresses that Ms. Schultz demanded payment only from Excellent.  The agreed facts for the stated case confirm this.  The judge referred to the appellant’s position in para. 15.  It was his opinion, with which I agree, that the fact Ms. Schultz demanded payment only from Excellent does not obviate the application of the plain language of s. 24.  She claimed against ICBC as a nominal defendant and obtained judgment against ICBC.  Section 24(8) states that ICBC “must” pay the amount authorized by the Act “towards satisfaction of the judgment”.  The fact Ms. Schultz demanded payment from Excellent does not alter the fact she engages s. 24 by claiming against ICBC as a nominal defendant.

[22]         There were three available coverages: no fault benefits; the s. 24 fund; Excellent’s third-party liability coverage.  Understandably, the appellant focuses on his situation, but it is mandatory to pay both no-fault benefits and the s. 24 fund.  In my view, considering the scheme of the legislation and the plain wording of s. 24, claims that attract the application of that section must be paid, and where there are multiple claims arising out of one accident, must be paid on a pro-rated basis.  This is consistent with I.C.B.C. v. Kushneriuk, 2004 BCCA 440 (the usual method of distribution is prorating).

bc injury law, ICBC Hit and Run Claims, Pro-Rata Distribution, section 24 Insurance (Vehicle) Act, Thoreson v. ICBC

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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