ICBC Hit With Double Costs For “Unreasonable” Settlement Refusal

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, ordering that double costs be paid to a plaintiff who was awarded substantially more at trial than they were willing to settle their claim for.

In today’s case (Miller v. Resurreccion) the Plaintiff was injured in a collision and sued for damages.  Prior to trial the Plaintiff offered to settle their claim for $200,000 plus costs and disbursements.  ICBC, as insurer for the Defendant, refused offering a little more than half this amount.  The Plaintiff proceeded to trial where her damages were assessed at $440,057.

The Plaintiff asked for double costs for trial.  In finding such an award was warranted due to ICBC’s “unreasonable” refusal to accept the Plaintiff’s offer Madam Justice Baker provided the following reasons:

[10]         I find that at the time of the offer, the defendant had sufficient knowledge of the plaintiff’s case to assess the offer. Counsel for the defendant had interviewed numerous witnesses for the plaintiff. The parties had attended a mediation. Expert reports had been exchanged on time and no new evidence arose after the offer was made.

[11]         I conclude that at the time of the offer, the defendant had all that was needed to assess the plaintiff’s credibility. It is telling that there was no serious challenge made to the plaintiff’s credibility at trial. The only non-medical expert witness called by the defendant was Ms. Carola Lopes De Souza, a group therapist who had worked with Ms. Miller as an outpatient. However, her evidence did not challenge Ms. Miller’s credibility.

[12]         The offer was made on February 14, 2019, with the trial scheduled to begin on February 19, 2019. While this is not a lot of time, the defendant was defended by ICBC, a sophisticated client. The defendant was well aware of the strengths and weaknesses of his case at the time, having issued his own settlement offer three days prior. I find that the timing of the offer was adequate in light of the defendant’s sophistication and knowledge of the case at the time of the offer.

[13]         The defendant takes issue with the fact that the plaintiff did not provide a draft bill of costs with the settlement offer. The defendant says the draft bill of costs was “relevant to [his] exposure”. However, no detail was provided to support this bald assertion. The amount awarded, net of costs and disbursements, far exceeded the offer made, which was also net of costs and disbursements. Without more from the defendant to support his assertion the bill of costs was necessary to assess the offer, I can put little weight on this submission.

[14]         I find that in all the circumstances, it was unreasonable for the defendant to refuse the plaintiff’s offer of February 14, 2019. This weighs in favour of an award of double costs.

[15]         The plaintiff’s offer of February 14, 2019 was for $200,000. The plaintiff’s recovery at trial clearly exceeded the offer, being more than double that amount. This weighs in favour of an award of double costs.

[16]         The defendant is insured by ICBC. While the defendant’s insurance coverage does not automatically act as a factor against him, it may be considered depending on the facts of the case: C.P. v. RBC Life Insurance Company, 2015 BCCA 30 at para. 101, leave to appeal ref’d [2015] S.C.C.A. No. 136.

[17]         There is no evidence that granting or declining to award double costs would place an undue financial burden on either party. I consider the financial circumstances of the parties in this case to be a neutral factor.

[18]         The defendants submit that the plaintiff’s offer was unclear and ambiguous because it contained the phrase “new money”.

[19]         I do not accept the defendant’s argument in this regard. The language of the offer clearly set out that the offer was for $200,000 without deductions for payments already made:

The Plaintiff offers to settle with the Defendant for the payment of $200,000 new money (“the Amount Offered”), after taking into account Part 7 benefits paid or payable, pursuant to section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force on or after June 1, 2007) and any advances paid to date, in satisfaction of this proceeding in its entirety.

[20]         Further, the defendant himself in the letter enclosing his formal offer dated February 11, 2019 used the phrase “new money”. The defendant clearly understood the phrase “new money” and understood what was included in the plaintiff’s offer. I find that the plaintiff’s offer was not unclear or ambiguous.

[21]         Considering all of the factors, it is appropriate to award the plaintiff double costs from February 14, 2019.