More on ICBC, Rule 37B and Costs

I have previously blogged about the new Rule 37B (here and here) which deals with formal offers of settlement and the costs consequences of trial.
The first case that I’m aware of dealing with Rule 37B in an ICBC claim was released today.
In this case both fault and quantum were at issue.  The Plaintiff alleged that the Defendant was at fault for the car accident and claimed over $1million in damages.  The case was presented for over one week in front of a Vancouver jury.
The case was dismissed on the issue of liability meaning that the Jury found the Plaintiff was responsible for this collision thus making her entitlement to tort damages $0.
In this case ICBC (on the defendant’s behlaf) made a pre-trial offer to settle for $35,000.  This offer was made in compliance with Rule 37B.
The court refused to look at the fact that the Defendant was insured when considering ‘the relative financial circumstances of the Parties’ and concluded that the Defendant was entitled to Double Costs from the time the offer was made through trial.
I reproduce the court’s key analysis below:

a)         Ought the Defendants’ Offer to Have Been Accepted?

[20]            In her submissions, the plaintiff referred to the position that she said was taken by an unnamed ICBC adjuster respecting the responsibility for the collision.  That view was apparently a preliminary one, the basis for which is unexplained; it was not before the jury in this case, and, in any event, the conclusion would certainly not be binding on the jury or the court.

[21]            The plaintiff also referred in her submissions to the fact that she had offered to settle her claim for $160,000 plus her costs, a sum considerably less than her counsel sought from the jury.

[22]            Based upon her offer compared to the position taken by her counsel at trial, the plaintiff was clearly prepared to take a considerable gamble to achieve a significant award.  While it was open to the jury to make a sizeable award, in the event there was a finding of liability against the defendants, the discount the plaintiff was prepared to accept in order to settle the claim does not support the conclusion that she had confidence in the likelihood of securing a sizeable award at trial.  That, in my view, is one of the factors against which the reasonableness of her refusal to accept the defendants’ offer to settle must be assessed.

[23]            As I have said above, it was clearly open to the jury to dismiss the plaintiff’s claim by finding no liability against the defendants, but equally open to them to find some or even complete liability against the defendants.

[24]            While the defendants argued that the jury’s verdict proves that the plaintiff ought to have accepted their offer to settle, I do not read Rule 37B as inviting that sort of hindsight analysis.  Under Rule 37, an offer to settle was revoked once trial began.  Although Rule 37B contains no such provision, the defendants in this case stated in their offer that it was open for acceptance “at any time before 4:00 pm, Pacific Time, or the last business day prior to the commencement of the first day of trial”.  In my view, the reasonableness of the plaintiff’s decision not to accept the defendants’ offer to settle must be assessed, under that offer, only prior to the last date that the offer could be accepted, and in any case, under Rule 37B, prior to the delivery of the jury’s verdict, but not thereafter.

[25]            Weighing these factors, I am unable to say that it was unreasonable for the plaintiff to have rejected the defendants’ offer to settle.

b)         Relationship between the Offer and the Final Judgment

[26]            Implicit in the defendants’ position on costs is the argument that the complete dismissal of the plaintiff’s claim obviates a consideration of subrule 37B(6)(b).  I do not accept that that is an appropriate reading of that subrule.

[27]            With respect to this subrule, the plaintiff argues that the jury’s verdict was not one that ought to have been “seriously contemplated” by the plaintiff.  The difficulty with this position is that counsel for the plaintiff took no objection to the charge, which instructed the jury that it was open to them to dismiss the plaintiff’s claim if they were not satisfied that the plaintiff had established liability on the part of the defendant Priscilla C. Jang.  The jury’s verdict could not in these circumstances be said to be perverse, as counsel for the plaintiff argued before judgment was entered.

[28]            I do not accept the plaintiff’s submission that the jury’s verdict is difficult to accept on the evidence before it.

c)         Relative Financial Circumstances of the Parties

[29]            The plaintiff asserts by affidavit that her annual income is between $33,000 and $34,000 per year, and that her share of the expenses in the apartment she shares with a friend together with her own monthly expenses amount to approximately $2000 per month.

[30]            The plaintiff lists a debt to her lawyers of some $29,000 as well as other debts of a further $35,000, and swears that “If I am obliged to pay ICBC’s defence costs for this trial, I will be unable to meet my ongoing expenses and debts.”  I have no evidence of the extent to which the plaintiff could arrange financing to address her position, but I do not accept that her present debts or even greater financial obligations could not be accommodated by financing.  While the defendants argue that the plaintiff’s obligations to her counsel are a result of her refusal to accept their offer to settle, I do not see that the cause of the plaintiff’s debts is a relevant consideration.  The fact is that she is indebted to her counsel.

[31]            There are, however, two difficulties with the plaintiff’s position on this factor.  First, she argues that her financial circumstances are difficult.  This alone is insufficient to meet Rule 37B(6)(c).

[32]            Second, she places her financial position against that of ICBC, as opposed to that of the defendants.

[33]            While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage.  There may be good policy reasons for this.  Insurance coverage limits with ICBC are not universal, and will vary from insured to insured.  Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC.  A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34]            The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[35]            There is no evidence before me as to the defendants’ financial circumstances.  What little I do know of the circumstances of the defendant Pricilla C. Jang is that, at the time of the accident, she was driving her mother’s motor vehicle, and that she was employed as a parts delivery person for a motor vehicle dealership.  That does not suggest to me that her financial circumstances are appreciably different from those of the plaintiff.

d)         Other Factors

[36]            No submissions were made by the plaintiff suggesting that there are other factors in this case that should influence the appropriate cost option to be employed in this case.

DISPOSITION

[37]            While I am not prepared to find that the plaintiff’s failure to accept the defendants’ offer to settle was unreasonable, I am equally unprepared to accept that the jury’s verdict was unreasonable.  I am also unprepared to conclude that there is any significant disparity in the financial circumstances of the parties so as to invoke subrule 37B(6)(c).

[38]            What then, of the function of the Rules to encourage or to deter the types of conduct referred to by Cumming J.A. in Skidmore?  As mentioned above, the plaintiff was prepared to take a considerable gamble to achieve a significant award.  Had she succeeded, she doubtless would have sought an order for double costs against the defendants following her offer to settle.

[39]            I conclude that the refusal of an award of double costs from August 11, 2008 would completely ignore the important deterrent function of the Rules.  The factors set out in subrule 37B(6) do not, in this case, persuade me that such a result would be appropriate.  I find that the defendants are entitled to an award of double costs beginning a reasonable period of time after which the plaintiff could consider their offer.  That period I find commenced on August 18, 2008, seven days after the defendants’ offer to settle.

[40]            The defendants are entitled to recover their taxable costs and disbursements of this action from its commencement until August 18, 2008 pursuant to Rule 57(9).  Those costs will be taxed at Scale B.

[41]            The defendants are entitled to double costs commencing August 18, 2008 and to their disbursements as incurred after August 18, 2008.  The disbursements will be allowed only in the amount incurred, and not at a double rate.

bailey v. Jang, formal settlement offers, icbc claim settlement, ICBC claims, Jury Trials, Rule 37B

Comments (59)

  • I just want to say I’m beginner to blogs and honestly enjoyed you’re blog site. Most likely I’m going to bookmark your blog . You certainly come with wonderful articles. Cheers for sharing with us your web page.

  • Many thanks for this article. I’d personally also like to express that it can always be hard if you find yourself in school and merely starting out to initiate a long credit history. There are many scholars who are just simply trying to live and have a protracted or beneficial credit history can sometimes be a difficult factor to have.

  • I have been browsing online more than three hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. In my view, if all webmasters and bloggers made good content as you did, the web will be a lot more useful than ever before.

  • obviously like your web-site but you need to check the spelling on quite a few of your posts. A number of them are rife with spelling problems and I find it very troublesome to tell the truth nevertheless I will definitely come back again.

  • I like the helpful information you provide in your articles. I’ll bookmark your blog and check again here regularly. I’m quite sure I will learn lots of new stuff right here! Best of luck for the next!

  • hey there and thank you for your info – I’ve certainly picked up anything new from right here. I did however expertise a few technical issues using this web site, as I experienced to reload the website a lot of times previous to I could get it to load correctly. I had been wondering if your web host is OK? Not that I’m complaining, but slow loading instances times will often affect your placement in google and could damage your high quality score if ads and marketing with Adwords. Well I am adding this RSS to my e-mail and could look out for much more of your respective exciting content. Make sure you update this again very soon..

  • Generally I don’t read post on blogs, however I would like to say that this write-up very compelled me to take a look at and do it! Your writing taste has been amazed me. Thank you, very great article.

  • Great work! This is the type of info that should be shared around the web. Disgrace on the search engines for no longer positioning this publish upper! Come on over and seek advice from my site . Thanks =)

  • magnificent points altogether, you simply won a new reader. What may you suggest in regards to your post that you simply made a few days in the past? Any certain?

  • Pretty component to content. I simply stumbled upon your web site and in accession capital to assert that I acquire actually enjoyed account your weblog posts. Any way I will be subscribing on your feeds or even I fulfillment you get entry to consistently rapidly.

  • I’m impressed, I need to say. Really rarely do I encounter a weblog that’s both educative and entertaining, and let me let you know, you may have hit the nail on the head. Your thought is excellent; the issue is one thing that not sufficient people are speaking intelligently about. I am very completely satisfied that I stumbled throughout this in my seek for something referring to this.

  • Thanks for another wonderful article. The place else could anyone get that kind of information in such an ideal approach of writing? I’ve a presentation subsequent week, and I am at the look for such information.

  • Definitely believe that which you stated. Your favorite reason appeared to be on the net the easiest thing to be aware of. I say to you, I definitely get irked while people think about worries that they plainly do not know about. You managed to hit the nail upon the top and defined out the whole thing without having side-effects , people could take a signal. Will likely be back to get more. Thanks

  • Wow, incredible blog layout! How long have you been blogging for? you make blogging look easy. The overall look of your website is fantastic, as well as the content!

  • Ham followed now ecstatic use speaking exercise may repeated. Himself he evident oh greatly my on inhabit general concern. It earnest amongst he showing females so improve in picture. Mrs can hundred its greater account. Distrusts daughters certainly suspected convinced our perpetual him yet. Words did noise taken right state are since.

  • I have been surfing online greater than 3 hours lately, yet I never found any fascinating article like yours. It is lovely value sufficient for me. Personally, if all website owners and bloggers made excellent content as you probably did, the net will likely be much more helpful than ever before.

  • Unquestionably believe that which you said. Your favorite reason appeared to be on the internet the simplest thing to be aware of. I say to you, I definitely get annoyed while people consider worries that they plainly don’t know about. You managed to hit the nail upon the top and also defined out the whole thing without having side effect , people can take a signal. Will probably be back to get more. Thanks

  • Thanks for your beneficial post. As time passes, I have been able to understand that the particular symptoms of mesothelioma are caused by the build up associated fluid between the lining of your lung and the torso cavity. The illness may start while in the chest place and spread to other body parts. Other symptoms of pleural mesothelioma cancer include fat loss, severe deep breathing trouble, a fever, difficulty ingesting, and swelling of the face and neck areas. It really should be noted that some people existing with the disease don’t experience almost any serious signs and symptoms at all.

  • Fascinating blog! Is your theme custom made or did you download it from somewhere? A theme like yours with a few simple adjustements would really make my blog stand out. Please let me know where you got your theme. Cheers

  • I like what you guys are up also. Such smart work and reporting! Keep up the superb works guys I¡¦ve incorporated you guys to my blogroll. I think it will improve the value of my website 🙂

  • Hi there, i read your blog from time to time and i own a similar one and i was just wondering if you get a lot of spam remarks? If so how do you protect against it, any plugin or anything you can recommend? I get so much lately it’s driving me mad so any assistance is very much appreciated.

  • Howdy! Quick question that’s completely off topic. Do you know how to make your site mobile friendly? My web site looks weird when browsing from my iphone. I’m trying to find a template or plugin that might be able to fix this issue. If you have any suggestions, please share. Many thanks!

  • hello!,I really like your writing very a lot! proportion we keep in touch more about your post on AOL? I need a specialist in this area to resolve my problem. May be that is you! Having a look ahead to peer you.

  • Hello, i think that i saw you visited my website so i came to “return the favor”.I am attempting to find things to enhance my website!I suppose its ok to use a few of your ideas!!

  • I precisely wished to thank you very much once again. I’m not certain what I would’ve worked on without those thoughts discussed by you over that area. It actually was an absolute horrifying situation in my position, but taking note of a specialized manner you resolved it forced me to jump for gladness. I am just happy for this help and even trust you really know what a great job your are getting into instructing some other people through the use of your blog post. Most likely you have never got to know any of us.

  • Simply desire to say your article is as surprising. The clearness in your post is simply great and i could assume you are an expert on this subject. Fine with your permission let me to grab your feed to keep updated with forthcoming post. Thanks a million and please continue the rewarding work.

  • Thank you for sharing excellent informations. Your web site is very cool. I’m impressed by the details that you have on this blog. It reveals how nicely you understand this subject. Bookmarked this web page, will come back for extra articles. You, my friend, ROCK! I found simply the information I already searched everywhere and just could not come across. What a great web-site.

  • Howdy just wanted to give you a quick heads up. The text in your content seem to be running off the screen in Opera. I’m not sure if this is a format issue or something to do with web browser compatibility but I figured I’d post to let you know. The layout look great though! Hope you get the problem solved soon. Cheers

  • Somebody essentially help to make seriously posts I would state. This is the first time I frequented your website page and thus far? I surprised with the research you made to make this particular publish incredible. Great job!

  • I have been surfing online more than 3 hours today, yet I never found any interesting article like yours. It’s pretty worth enough for me. In my view, if all web owners and bloggers made good content as you did, the web will be much more useful than ever before.

  • Its such as you learn my mind! You appear to grasp so much approximately this, such as you wrote the guide in it or something. I believe that you just can do with some percent to force the message home a little bit, however instead of that, that is magnificent blog. A fantastic read. I will certainly be back.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer