BC INJURY LAW – Page 261 – The MacIsaac Group of Law Firms

Deductions of ICBC Part 7 Benefits in BC Tort Claims

Written by admin on November 13, 2008. Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 51 Comments on Deductions of ICBC Part 7 Benefits in BC Tort Claims

Reasons for judgement were released today addressing the deductions of ICBC Part 7 benefits from a tort award.
If you are injured in a BC car crash and are insured with ICBC you have the right to apply for your ICBC No-Fault Benefits. These include certain rehabilitation and wage loss benefits. Whether or not you are at fault for the collision you should apply for these part 7 benefits.
In your tort claim (your claim for compensation against the at fault motorist) the defendant can argue that any amount he/she needs to pay you in damages should be reduced by the amount of Part 7 benefits you are entitled to. Whether or not you actually received these benefits is irrelevant!
In today’s case the trial judge awarded various damages including $10,000 for the cost of future medical care. The defendant argued that the $10,000 award should be deducted because the Plaintiff could receive payment from ICBC directly for those future medical expenses.
The court dismissed this defence argument finding as follows:

[22] In this case, I am persuaded that there is an issue about whether the plaintiff’s medication is covered by Part 7 at all, given that it not only provides benefits incurred by the insured as a result of the injury but also from conditions exacerbated by the accident.

[23] I find that the amount awarded for the cost of future care, particularly medication, is not to be deducted from the judgment.

This case summarizecd the law of Part 7 benefit decutions very well, particularly the court held that:

1. When considering a s. 25 deduction, the central question is whether the plaintiff is a person who is or would have been entitled to Part 7 benefits. If the answer to that question is affirmative, the court must estimate the value of further payments that the Corporation is authorized or required to make under the Regulation, and deduct that amount from the judgment: Sovani v. Jin, 2005 BCSC 1285, 47 B.C.L.R. (4^th) 97.

2. Issues between the plaintiff and ICBC over delivery of Part 7 benefits are not relevant considerations in determining a s. 25 deduction: Sovani.

3. The court has no discretion to reduce an estimate of future s. 88(1) benefits for the purposes of a s. 25 deduction: Ayles (Guardian of) v. Talastasin, 2000 BCCA 87, 73 B.C.L.R. (3d) 60.

4. Medication is an expense that falls under the mandatory or non-discretionary provision of s.88(1) of the Regulation: Ayles.

5. Section 88(1) requires the Corporation to pay benefits for all reasonable expenses incurred by the insured as a result of the injury.

6. The plaintiff may have had a pre-accident underlying “disease” entitling the Corporation to invoke an exemption from liability contained in s. 96(f) of the Regulation: Mawji v. Insurance Corporation of British Columbia, 2001 BCSC 1610.

7. Trial judges must be cautious in estimating s. 25 deductions and any uncertainty as to entitlement must be resolved in favour of the plaintiff: Schmitt v. Thomson, 18 B.C.L.R. (3d) 153, 132 D.L.R. (4^th) 310 (C.A.); Lynne v. Pearson, 55 B.C.L.R. (3d) 401, 111 B.C.A.C. 139.

If you are insured with ICBC and are injured by another in a BC car crash make sure you apply for your Part 7 Benefits. If you don’t it can take money right out of your pocket in your tort claim and cases such as this one are a stark reminder that ICBC often makes such an argument in tort claims.

More on ICBC Injury Claims and Independent Medical Exams

Written by admin on November 10, 2008. Posted in Civil Procedure, independent medical exams.

Reasons for judgement were released today dismissing an ICBC application for a second independent medical exam in a tort claim and granting an ICBC application for a ‘work capacity evaluation’.
Applications for ‘independent medical examinations‘ under Rule 30 of the BC Rules of Court arise frequently in ICBC claims when the Defendant claims that they need such an examination to ‘level the playing field‘. These applications are discretionary and given the frequency of such applications being adjudicated in our courts there is no shortage of useful precedents reported. Today’s case doesn’t create any new law, I report it nonetheless to give my readers insight into the types of procedural disputes sometimes arising in ICBC claims.
The Plaintiff in this case had been assessed by a variety of physicians in a medico-legal context. The Defendant wished to have the plaintiff assessed by a physiatrist and a work capacity evaluator.
In dismissing the application for an assessment by a physiatrist the court states as follows:
[4] It was submitted by defendant’s counsel that Dr. Maloon is an orthopedic surgeon, whereas Dr. Hirsch is a physiatrist, and it is important to have a rebuttal report, if you will, from a physiatrist in order to put the defendants on equal footing. I disagree with that submission. I disagree because as has been pointed out to me, Dr. Maloon had extensive clinical and consultation reports from a number of practitioners, including Dr. Jaworski, who was a treating physiatrist. As well, he had the clinical records and notes from Mr. Haleta’s treating general practitioner, among others. There comes a time when the parties can no longer seek to usurp the function of the court or the jury by asking for continuous expert reports from various specialists. These are matters for counsel to deal with by way of cross-examination, especially when there are conflicting opinions. There is nothing new here that has arisen that would give the plaintiff an unfair advantage over the defendant. Nothing of concern should arise merely by the fact that the defendants chose to have the plaintiff examined by an orthopod and only sometime later find out that counsel for the plaintiff had their client seen by a physiatrist. Accordingly, I dismiss paragraph 1 of the applicants’ notice of motion.
In granting the order compelling the Plaintiff to attend a work capacity evaluation the court held as follows:
[5] A number of specialists/physicians who saw Mr. Haleta for other matters have recommended that he be seen by experts in functional and vocational capacity. In particular Dr. Reid, who is a psychologist, recommended, and I believe that Dr. le Nobel — correct me if I’m wrong — made a similar recommendation. It would seem to me that it would be appropriate for both parties to have the plaintiff seen by somebody to make a vocational capacity evaluation of Mr. Haleta, which would be of assistance to the court and to the jury in this particular case. Accordingly, I order that Mr. Haleta do attend the offices of Mr. Christopher Cook for the purposes of a work capacity evaluation to be performed by Mr. Cook, and that is to be held on Tuesday, the 18th of November, commencing at 9:00 a.m. at suite 202, 20689 Fraser Highway, Langley, British Columbia.

$75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Written by admin on November 10, 2008. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 53 Comments on $75,000 Non-Pecuniary Damages for Chronic Neck/Back Pain and Headaches

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $190,000 in damages as a result of 3 motor vehicle collisions.
The Plaintiff was 23 years old at the time of trial. He was injured in 3 collisions, the first of which occured when he was only 10 years old.
The Plaintiff was not at fault for any of the collisions and the week long trial focussed on the issue of damages (that is, the value of the Plaintiff’s ICBC claims).
The medical evidence presented established that the plaintiff suffered from neck pain, upper back pain and headaches and that these symptoms have lasted for more than 10 years. The court accepted that the Plaintiff’s injuries still have room for ‘considerable improvement with continued focussed and supervised exercise.’ However the court also found that the synptoms would probably never completely resolve.
Damages were awarded as follows:

Non-pecuniary damages $ 75,000

Loss of Earning Capacity $100,000

Cost of Future Care $ 12,650

Special Damages $ 3,570

Past Income Loss $ 698

ICBC claims involving soft tissue injuries and headaches are often based laregely on subjective findings. That is, often times in these cases one cannot point to an X-ray, MRI or other diagnosistic study that will prove or dis-prove the injury. Thus the credibility of the claimiant is a vital factor in the success/failure of many of these types of cases.
Here, Mr. Justice Smith found that the Plaintiff was credible and that the injuries were genuine. Specifically he noted that:
[19] The opinions of both Dr. McGraw and Dr. Watt are based primarily on the plaintiff’s description of his subjective symptoms. There have been few objective physical findings. However, I found the plaintiff to be a forthright, intelligent, highly motivated young man and I accept his evidence that he has suffered ongoing, although not disabling, pain for 13 years as a result of the first accident, with increased pain and discomfort as a result of the second accident that lasted three years. It is to the plaintiff’s credit that he has been willing to accept that pain and carry on with most activities.

$35,000 Pain and Suffering for 'Plateaued' Soft Tissue Injuries

Written by admin on November 6, 2008. Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 52 Comments on $35,000 Pain and Suffering for 'Plateaued' Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $45,000 in total damages as a result of a 2004 BC car crash.
The crash was significant. The Plainitiff was travelling at 60 kilometers per hour when his vehicle was struck head on by the Defendant. The Plaintiff’s vehicle was destroyed as a result of the impact.
The court found that the Plaintiff suffered various soft tissue injuries as a result of this crash and that these injuries plateaued by the end of 2006 to about 90% of the Plaintiff’s pre accident level. The court’s key findings are made at paragraphs 28-31 which I set out below:

[28] On the whole, I found the plaintiff to be a good, credible witness. I am satisfied that he fully intended to develop a high-quality educational centre for those wishing to learn English as a second language and that he was attempting to do so when he was injured in the motor vehicle accident of March 27, 2004.

[29] I find as well, however, that the plaintiff’s records relating to his learning centre were poor, and that his business model was unlikely to lead to significantly greater income than it generated in its best year, 2005. Clearly the plaintiff will make far more money in real estate than he could ever have made with his learning centre, and he has recognized this by restricting his claim related to the learning centre to the period from March 2004 until June 2006.

[30] I find that the plaintiff was involved in a significant collision while travelling at approximately 60 km/h, when his vehicle rapidly decelerated after being struck head on by the defendants’ vehicle which was travelling in the opposite direction. The plaintiff’s vehicle was destroyed. As a result of the collision, I find that the plaintiff suffered soft tissue injuries to his neck, shoulders and clavicle, which interfered with his usual exercise routine, his normal daily activities, and his ability to perform the duties required of him at his learning centre.

[31] I find that before these injuries resolved, the plaintiff’s circumstances were further interrupted by a nerve injury affecting his arm, but that that injury was unrelated to his motor vehicle accident. I find that the injuries attributable to the motor vehicle accident continued to adversely affect (the Plaintiff) in his daily activities in an ever-decreasing manner until the end of 2006, when they plateaued at approximately 90% of his pre-accident condition. I find that the injuries related to the motor vehicle accident are now, as Dr. Hirsch described, “fairly minor” and that they only interfere in (the Plaintiff’s) usual activities on a sporadic basis, perhaps every month or so.

The following damages were awarded:

a) non-pecuniary damages of $35,000.00;

b) past income loss of $8,250.00;

c) special damages of $2,786.15; and

d) court order interest on the past income loss and special damages awards.

More on Settlement Offers and Rule 37B

Written by admin on November 6, 2008. Posted in Civil Procedure. 73 Comments on More on Settlement Offers and Rule 37B

Reasons for judgement were released today refusing to award the successful litigant double costs pursuant to Rule 37B.
The Petitioner City sued the Respondent Kennel operator seeking a declaration that the Kennel was in breach of a Bylaw and seeking conjunctive orders. Before trial (and before Rule 37 was replaced with Rule 37B) the Respondent offered to settle on the following terms ‘this proceeding on the basis that the Petitioner’s claim be dismissed and costs in accordance with Rule 37‘
The offer was delivered less than 7 days before the trial commenced. The claim was dismissed at trial.
The Respondents asked that the City pay them Double Costs. Madam Justice Loo refused to order double costs noting that the formal offer of settlement conferred no benefit to the Respondents aside from costs. The key reasons are set out at paragraph 13-15 which hold as follows:

[13] The Court of Appeal in a number of cases has stated that the purpose of the double costs provisions of Rule 37 is to encourage early and reasonable settlements of disputes and discourage frivolous litigation: Skidmore v. Blackmore (1995), 122 D.L.R. (4th) 330, 2 B.C.L.R. (3d) 201 (C.A.) at para. 28; Vukelic v. Canada (1997), 37 B.C.L.R. (3d) 217 at paras. 9 to 13, 94 B.C.A.C. 147; Mackenzie v. Brooks, 1999 BCCA 623 at para. 24 (sub nom. Mackenzie v. Brooks et al.), 130 B.C.A.C. 95.

[14] Although Rule 37 is no longer in force, I find these statements of principle helpful in view of the express language of Rule 37B(4).

[15] The petitioner’s claim was not frivolous and it was not a claim that was bound to fail. The offer to settle conferred no benefit on the petitioner aside from costs and conferred virtually no benefit to those who complained about the noise of the barking dogs.

This is the second case that I’m aware of in Rule 37-B’s short history which refuses to award double costs to a litigant who made what can be characterized as a nuisance value offer. It appears that if a claim is not frivolous and is not bound to fail, double costs might not be granted when the claim does indeed fail at trial if the formal settlement offer conveys ‘no benefit aside from costs’ to the litigant.
If you are proceeding to trial in an ICBC claim or are considering an ICBC settlement offer cases such as this one are worth reviewing. I will continue to post about Rule 37B cases as they come to my attention.

Passenger Found Liable for Grabbing Steering Wheel of Vehicle

Written by admin on November 5, 2008. Posted in ICBC Liability (fault) Cases, Uncategorized. 105 Comments on Passenger Found Liable for Grabbing Steering Wheel of Vehicle

(Please note the case discussed in this article went before the BC Court of Appeal in March, 2010, you can click here to read my post discussing the Court of Appeals Reasons)
Reasons for judgement were released today by the BC Supreme Court determining the issue of fault for a single vehicle collision which occurred in Vernon, BC in 2004. The vehicle left the roadway, hit a ditch and over-turned. 3 of the 4 occupants sued for personal injuries.
The front seat passenger grabbed the steering wheel while the vehicle was in operation. The vehicle then lost control. The court made the following interesting findings of fact:

I find that (the front seat passenger) was the only intoxicated person in the Jeep that night. Hers was the only memory subject to the confounding effect of excessive alcohol consumption. I do not, therefore, accept her recollection over the recollections of (the driver) and (the other passenger), both of whom were sober.

[41] Finally, I find that of all the people in the Jeep, it was (the front seat passengers) judgment that was impaired by alcohol. The disinhibiting effect of alcohol on judgment is well known – it requires no expert evidence to explain or establish. I am satisfied that if she were sober, (the front seat passenger) would never have behaved as she did. The only conclusion I can come to on the evidence adduced at trial is that (the front seat passengers) intoxication led her to believe that a hazard existed where there was none, or to think that it would be humorous to give the Jeep a shake by grabbing the steering wheel. I therefore find that (the front seat passenger’s) judgment was impaired by alcohol and that, as a consequence of that impairment, she negligently grabbed the steering wheel and caused the Jeep to veer off the road.

[42] I find that (the driver) did nothing wrong and was not negligent in her operation of the vehicle that night. Specifically, she was not impaired; she was not speeding; notwithstanding her novice driver’s licence, she had the proper degree of skill and experience to operate the Jeep; she was attentive and alert; she did not allow the Jeep to wander from its proper course on the highway; and she could not have anticipated that (the front seat passenger) would do something so foolish as to grab the steering wheel and jerk it to the right….

[43] In summary, (the front seat passenger) was negligent and her negligence caused the Jeep to swerve off the road and into the ditch. (the driver) was not negligent and did not contribute to the cause of the accident. (the driver) was sober and was competent to drive the Jeep. No person in the Jeep that night was contributorily negligent for having taken a ride with her.

In addition to the unique facts of this case, it is worth reviewing because the court made some interesting findings with respect to ‘use and operation’ of a vehicle and the vicaroius liability of registered owners of vehicles.
In this case the vehicle was owned by the front seat passenger’s father. He permitted his daughter to operate the vehicle but did not permit her friends to operate the vehicle. Section 86 of the Motor Vehicle Act imposes liability on the owner’s of vehicles for the actions of the drivers of their vehicle in certain circumstances, particularly, the section holds that:

86 (1) In the case of a motor vehicle that is in the possession of its owner, in an action to recover for loss or damage to persons or property arising out of the use or operation of the motor vehicle on a highway, a person driving or operating the motor vehicle who

(a) is living with, and as a member of the family of, the owner, or

(b) acquired possession of the motor vehicle with the consent, express or implied, of the owner,

is deemed to be the agent or servant of, and employed as such by, that owner and to be driving or operating the motor vehicle in the course of his or her employment with that owner.

In this case the owner of the vehicle argued that he should not be held responsible for the accident because he did not consent to his daughter’s friend to operate the vehicle. In fact the court found that:
[24] The evidence is also clear that as a general proposition, (the owner) instructed his children that no one but them should drive the cars that he left in their possession. His purpose for imposing that rule was to keep the children and his cars safe. That was because he knew and trusted his children’s judgment, but he did not necessarily know or trust the judgment of their friends. The question here is whether, notwithstanding his general rule, (the owner)gave his consent to (his daugher’s friend) operation of the Jeep on the night of the accident.
The court found that the father (owner) did consent in these circumstances finding that:

[32] Barreiro makes it clear that the policy that drove the result in Morrison extends to situations where the owner gives the keys to its agent and the agent passes the keys on to a third party. Barreiro stands for the proposition that so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car. That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[33] In my view, except for the fact that (the owner) obtained no financial benefit from (the driver’s) possession of the Jeep, the present case is not distinguishable from Barreiro. (the owner) freely gave the Jeep’s keys to (his daughter). She freely gave the keys to (the driver). (the owner) must, therefore, be taken to have expressly consented to (the driver’s) possession of the Jeep on the night in issue.

[34] For the same reason, (the owner) must be taken to have expressly consented to (his daughter’s) possession of the Jeep that night, and that is so notwithstanding the fact that she was intoxicated and that her being intoxicated broke the other of (the owner’s rules.

The moral of this story is be careful who you lend your vehicle to in British Columbia because you can be held responsible for their actions, even if they lend your vehicle to someone who you would not lend your vehicle to!
Lastly, the court found that the father (owner) of the vehicle was responsivle for his daughter’s actions when she grabbed the steering wheel because, while doing so, she was operating the vehicle. Specifically the court found that:

[51] When (the front seat passenger) grabbed the steering wheel, she exerted an effort to control the Jeep’s trajectory. As such, she was, for a brief period of time, “driving” the Jeep by moving the steering wheel, and she was, for an equally brief period of time, “operating” the Jeep by inputting some control over its steering function.

[52] For those reasons, I find that just before the Jeep went off the road, both (the driver) and (the front seat passenger) were driving it. (the front seat passengers) efforts were unwelcome and unhelpful, not to say outright dangerous, while (the driver’s) efforts were blameless.

Soft Tissue Injury Nets $35,000 for Pain and Suffering in Rule 68 Claim

Written by admin on November 5, 2008. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

I’m on the road working on ICBC claims in Kelowna today so today’s BC personal injury update will be a little lighter on detail than usual.
Yesterday the BC Supreme Court released reasons for judgement awarding just over $82,000 in damages as a result of injuries and loss sustained in a 2005 BC Car Accident in Victoria, BC.
The Plaintiff was a 24 year old graphic designer at the time of the accident.
The court made the following finding with respect to injury:

[83] From the foregoing evidence and my findings, I find that the plaintiff has established that he suffered a soft tissue injury to his cervical and lumbar spine in the accident. Dr. Chan’s report does not attempt to classify the severity of the injury, but he did note the injury to be resolving at about two months post-accident, with a conservative treatment regime. The plaintiff missed a week of work immediately after the accident, then returned to work half days for three to four months, and then went back to full-time hours of seven to eight hours a day. He considers the last significant improvement in his condition to be about six months post-accident.

[84] To date, just over three years as of the date of trial, the plaintiff remains unable to work the additional hours per day to bring him to his pre-accident level of 50 to 60 hours per week, and continues to experience “flare ups” with pain in his lower back when engaging prolonged periods of standing or sitting. Certain physical activities and sports that he previously enjoyed, he now engages in at a reduced level or has declined to continue with, for example snowboarding and mowing his parents’ lawn. In my view, the evidence establishes a minimal ongoing impairment arising from the soft tissue injuries he sustained in the accident.

Damages were awarded as follows:

(a) Non-pecuniary damages: $35,000.00

(b) Damages for lost income: $15,647.18

(d) Special damages: $ 1,845.36

Total: $82,492.54

This is one of the few ICBC injury claims that I’m aware of that proceeded through trial under the relatively new Rule 68. Rule 68 should be carefully reviewed for anyone prosecuting an ICBC injury claim that may be worth less than $100,000 as this rule presents some benefits and restrictions in the way in which an ICBC claim can be advanced.

ICBC Defence Lawyers and Ethical Obligations to their Client

Written by admin on November 3, 2008. Posted in Uncategorized.

I have previously blogged about ICBC lawyers and ethics obligations and I write more on this topic.
If you are sued for a BC car accident and are insured by ICBC they will appoint a lawyer to defend your claim. That lawyer has 2 potentially conflicting duties, they are
1. To you the client
2. To ICBC (the client that is paying the bills)
This ‘joint retainer’ is permitted by the Law Society of BC provided that the interests of YOU THE CLIENT and ICBC don’t conflict. If there is a conflict the lawyer must withdraw form the joint representation.
The Law Society’s Ethics Committee published information recently to hep ICBC defence lawyers to “avoid allegations of bad faith and professional negligence‘. I thought this would be useful information for members of the public as well, particularly for anyone who may be concerned about the approach that a lawyer appointed by an insurance company in the defence of a tort claim is taking.
Below is the article in it’s entirety which I am reproducing from the Law Society’s website:
http://www.lawsociety.bc.ca/publications_forms/alert/03-02.html

Avoiding allegations of “bad faith” and professional negligence in defending third-party liability claims

A lawyer appointed by an insurer to defend a third-party liability claim has two clients: the insurer and the insured. The lawyer owes obligations to both clients and, as discussed below, the insurer owes obligations to the insured. Care must be taken by the lawyer to identify and avoid conflicts of interest between the two clients and to ensure that they are both fully protected.

The words “bad faith” might conjure up the image of an uncaring lawyer who allows an insurer to disregard the interests of an insured when handling the defence of a claim. Such an approach by a lawyer is in fact very rare – almost without exception, counsel who are appointed to defend third-party liability claims recognize their obligations to both clients and do their best to provide thorough and timely advice as well as competent service. However, with the increasing size of damage awards, situations where there is inadequate insurance are becoming more frequent.

Although allegations of bad faith and professional negligence can arise in various circumstances, the risk is greatest when the insured faces a potential claim for damages for an amount greater than the available third-party insurance policy limits. Claims against insurers and defence counsel by insureds who find themselves facing large judgments in excess of their policy limits tend to fall into two broad classes:

failing to settle the case before trial for an amount within the policy limits, or
failing to provide a full defence and thus minimize the extent of the excess judgment.

It is almost invariably the insurer who has the ultimate power to make decisions about settlement and conduct of the defence. However, when an insured claims that the insurer has breached its good faith obligations in this regard, the insured and in some cases even the insurer may seek to shift blame for this to defence counsel.

Staying out of hot water

The Lawyers Insurance Fund has received increasing numbers of reports in recent years relating to the defence of actions arising out of motor vehicle accidents. A review of them gives rise to a number of observations and suggestions. These may help BC lawyers avoid being drawn into bad faith litigation if there is a judgment in excess of the available insurance limits:

Write to the insured at the outset to advise of the retainer, its scope and its limitations. Be sure that the insurer is also aware of the scope and limitations of the retainer.
Once appointed to defend, do not advise either party on insurance coverage issues. Do not act on behalf of the insurer in any action relating to insurance coverage issues (including Part 7 actions). Be aware of what the coverage issues are, so that you can identify conflicts and avoid them.
If there is a possibility of a claim exceeding the limits, write to the insured advising of the risk of an excess judgment and the insured’s personal exposure to execution, recommend independent legal advice, advise of the possibility of conflicts of interest and explain your limited role – the defence of the case only. Instructions from the insurer are not required to send this letter. If the insurer has already provided such notice to the insured, review it for sufficiency.
Consider recommending that the insurer obtain independent legal advice on any coverage issues and its obligations to its insured. Many insurers will be well aware of the need to do so, but there may be circumstances where it is appropriate to remind the insurer that such matters are not part of your role as defence counsel.
Consider recommending that the insurer pay for independent counsel for the insured where there is significant uninsured exposure and where the insured is unable or unwilling to pay for counsel.
Keep the insurer and the insured or insured’s independent counsel fully informed of all material information and developments. This includes providing copies of all reports to the insured or independent counsel.
As with any case, conduct an investigation and assessment of liability and quantum and be alive to the need to revisit these issues with the emergence of additional information. If expert evidence may be helpful, seek instructions to obtain it. If there may be contributory negligence, seek instructions to develop the evidence to prove it.
Be aware of and advise the insurer and the insured or independent counsel of all possible sources of recovery, including other insurance and third-party claims. It may be appropriate to advise independent counsel or the plaintiff’s lawyer that other possible sources of recovery could be pursued.
Insurers are becoming increasingly concerned to limit defence costs. As an outgrowth of that concern, counsel are often put on a “short leash.” Be vigilant to ensure that the duties owed to the insured are not compromised by paying too much attention to the insurer’s concern with the “bottom line.” Most often these matters are capable of being resolved through a frank and open dialogue with the insurer. In those rare cases when a disagreement remains between counsel and the insurer on what is required to provide a full defence, advise the insurer and the insured or independent counsel of those concerns.
Avoid making any admissions without the informed consent of the insured.
With respect to settlement negotiations, advise both the insurer and the insured, or the insured’s independent counsel, of all offers made by other parties. Provide recommendations on all offers received and on offers that could be made on behalf of the insured. Address settlement at all stages of the litigation, even the early stages if it is apparent that the claim is likely to exceed the limits. When offers are extant, follow up to obtain instructions promptly.
Be alive to the possibility of conflicts at all times. When acting for more than one defendant, consider whether there are any conflicts between them.
Record your advice, instructions and steps taken in writing.

Most cases settle shortly before trial, a time when you will be preoccupied with preparation for trial. By addressing the issues outlined above well in advance, you will help ensure that the insurer and the insured are better prepared to address their relationship with respect to coverage and settlement issues should these arise immediately before trial.

The insurer’s duty to the insured

The leading two cases in BC respecting “bad faith” claims against insurers are Fredriksonv. Insurance Corporation of British Columbia (1990) 44 BCLR (2d) 303 (SC) and Shea v. Manitoba Public Insurance Corp. (1991) 55 BCLR (2d) 15 (SC). Both decisions arise out of motor vehicle accident claims, although most of the principles will likely apply in the handling of other liability cases. Defence counsel should be familiar with each case. As noted, when insurers breach their duties of good faith, defence counsel may be drawn into ensuing bad faith litigation for alleged failure to prevent this from happening.

In Shea, Finch, J. (as he then was) recognized the legitimate interest of an insurer to try to effect a saving on the policy limits if there exists a reasonable prospect of settling the claim for less than the limits (as was the case in Fredrikson). However, the insurer has no legitimate interest in trying to settle a claim for less than the policy limits when it is clear (as it was in Shea) that the claim will exceed the available coverage.

The obligations of an insurer to its insured, where the insured faces an excess exposure, were summarized by Finch J. in Shea, as follows:

I would summarize my view of the law touching on the insurer’s duty to its insureds in the circumstances of this case as follows:

1. The relationship between insurer and insured is a commercial one, in which the parties have their own rights and obligations;

2. Within the commercial relationship, special duties may arise over and above the universal duty of honesty, which do not reach the fiduciary standard of selflessness and loyalty;

3. The exclusive discretionary power to settle liability claims given by statute to the insurer in this case, places the insured at the mercy of the insurer.

4. The insureds’ position of vulnerability imposes on the insurer the duties:

a) of good faith and fair dealing;

b) to give at least as much consideration to the insureds’ interests as it does to its own interests; and

c) to disclose with reasonable promptitude to the insured all material information touching upon the insureds’ position in the litigation and in the settlement negotiations;

5. The fact that the insured is at the mercy of the insurer for the purposes of settlement negotiations gives rise to a justified expectation in the insured that the insurer will not act contrary to the interests of the insured or will at least fully advise the insured of its intention to do so;

6. While the commercial nature of the relationship permits an insurer to assert or defend interests which are opposed to, or are inconsistent with, the interests of its insured, the duty to deal fairly and in good faith requires the insurer to advise the insured that conflicting interests exist and of the nature and extent of the conflict;

7. The insurer’s statutory obligation to defend its insured imposes on the insurer, where conflicting interests arise, a duty to instruct counsel to treat the interests of the insured equally with its own; and where one counsel cannot adequately represent both conflicting interests, an obligation to instruct separate counsel to act solely for the insureds, at the insurer’s own cost;

8. The insurer’s duty to defend includes the obligation to defend on the issue of damages, and to attempt to minimize by all lawful means the amount of any judgment awarded against the insured. In this case, that would include arguing that court order interest and no fault benefits are payable in addition to the policy limits, where such an argument is available in law; and

9. Defence preparations and settlement negotiations must take place in a timely way and, where last minute negotiations are required, advance planning must be made to ensure that the insureds’ interests are given equal protection with those of the insurer.

* * *

If an insurer complies with these guidelines, there is little likelihood that a claim will be advanced against the insurer for bad faith or against counsel for professional negligence.

$1,284,279 Awarded for Traumatic 'Complex Somatoform Disorder'

Written by admin on November 3, 2008. Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Liability (fault) Cases, ICBC Psychological Injury Cases. 62 Comments on $1,284,279 Awarded for Traumatic 'Complex Somatoform Disorder'

Reasons for judgement were released today awarding a Plaintiff nearly $1.3 million in damages as a result of a 2002 motor vehicle collision which occurred at UBC.
The Plaintiff was a pedestrian at the time. She was struck while walking in a marked crosswalk on a dark and rainy evening. Both fault and quantum (value of the ICBC claim) were at issue at trial.
The court found that the defendant driver was 100% responsible for the collision. At paragraph 8 Madam Justice BJ Brown noted that
[8] In my view, (the Defendant) is 100% responsible for the accident. She was driving in, not through, the crosswalk, in the course of completing a U-turn, looking for a parking space. She was aware that at that time of night it is quite common for there to be pedestrians about, that there are still students attending classes. Indeed, she was picking her husband up from teaching a class.
The Plaintiff was a PhD student looking to earn her degree in chemistry at the tine. The court found that she suffered some significant injuries which are summarized at paragraph 69 of the judgement:
[69] (the Plaintiff’s) condition, a complex somatoform disorder (a combination of a pain disorder, somatoform disorder NOS (organically unexplained fatigue) and conversion disorder (psychogenic neurological deficits)), was caused by the motor vehicle accident. It developed over the days and weeks following the accident, as (the Plaintiff) complained of bizarre, non-organic complaints, such as, on March 19, 2002, speaking in a barely audible whisper and being hypersensitive to exam; on April 17, feeling exquisitely tender; and by May 30 when she saw Dr. Spacey, demonstrating many non-physiological findings, such as a vibration which respects the midline (a test performed by Dr. Spacey which should have been felt all across the forehead, but which Dr. Samuel felt only to mid-way across the forehead) and total body weakness for three weeks which Dr. Spacey thought to be “highly functional in nature”. Her complaints exceeded the physical signs.
The court assessed damages as follows:

(i)	Non-pecuniary damages	$ 100,000.00
(ii)	Loss of income/capacity: Future: Past:	$1,000,000.00 $ 150,000.00
(iii)	Cost of future care	$ 25,000.00
(iv)	Loss of housekeeping capacity	$ 15,000.00
(v)	Special damages	$ 4,279.53

In noting that $1,000,000 was appropriate in loss of earning capacity, the court noted that ‘chronic conversion disorder, such as demonstrated by (the Plaintiff), usually evolved into a chronic illness. Despite treatment, the majority of these patients fail to return to work. Accordingly, it is unlikely that (the Plaintiff) will earn any significant amount of the course of her lifetime.’
This case is worth reviewing for anyone advancing a contested pscyhological injury claim with ICBC as it gives insight into the complexity involved in prosecuting such cases.

More on Rule 37-B

Written by admin on November 3, 2008. Posted in Civil Procedure. 59 Comments on More on Rule 37-B

The first decision that I’m aware of was released today dealing with the costs consequences of accepting a Rule 37 offer under Rule 37B.
The full background facts are not necessary for this narrow post. In this case the defendants made an offer to settle for $6,000. This offer was made in compliance with the now repealed Rule 37. The offer was made (and accepted) while Rule 37 was still in effect.
The parties could not agree to whether a formal settlement was agreed to nor what the costs consequences were. The Plaintiff applied to court to enforce the settlement. The court application was not heard until October, 2008 (well after Rule 37 was repealed and replaced with Rule 37B)
Mr. Justice Rogers held that in these circumstances a settlement did exist and that Rule 37B is applicable.
Particularly he noted that:
[10] Like the parties, I am satisfied that the original claim advanced by the plaintiffs in their statement of claim was settled by the parties’ exchange of offer and acceptance. There will, therefore, be a declaration that the plaintiffs’ claims against the defendants arising out of the writ and statement of claim have been settled. There will be a declaration that the settlement price to be paid to each of the plaintiffs is $6,000….

[14] As to whether Rule 37B applies to the present case, I believe that it does. I have come to that conclusion because the rule permits the court to consider an offer to settle, including one made under Rule 37 but with respect to which no order has been made, when exercising the court’s discretion in relation to costs: Rule 37B(4). The court’s discretion relating to costs is engaged when a party asks the court to make an order. In the case of an accepted offer to settle, a party may ask the court for a declaratory order or it may apply for judgment in the terms of the settlement. Upon such an application, the court will have discretion as to costs with respect to the application itself and with respect to any costs contemplated by the settlement.

[15] In the present case, the accepted offer did contemplate costs in the plaintiffs’ proceeding. Those costs were under Rule 37, but that rule has been replaced. The costs contemplated by the settlement must now be taken to be costs under Rule 37B. Therefore, the plaintiffs’ present application for a declaration that their action has been settled engages the court’s discretion under Rule 37B with respect to the costs of the application itself, and also of the plaintiffs’ proceeding as a whole.

[16] As noted above, the plaintiffs argue that the court should exercise its discretion in their favour for those steps taken in the litigation up to the date that the defendants delivered their offers to settle. The defendants argue that no order for costs should be made until the counterclaim has been concluded.

[17] Because the issue of the plaintiffs’ costs of the now settled action falls to be decided under Rule 37B, the court must examine that rule to learn what principles will guide its decision. As to those principles, the new rule says:

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

[18] This provision makes it clear that the Legislature intends the court to at least consider conducting a detailed examination into, among other things: the circumstances that pertained at various stages of the litigation relating to the party’s knowledge of the strength of its own case and that of its opponent; if the case has gone to trial, the proportionality of the offer to the judgment; and the financial circumstances of all of the parties involved. Presumably, that detailed examination will be based on some form of properly admissible evidence.

[19] The scope of the inquiry that the court is expected to make before awarding costs under Rule 37B is, therefore, much wider than was the case under its predecessor rule. Furthermore, the parties to a piece of litigation have, I think, a legitimate expectation that the court will at least put its mind to the factors set out in Rule 37B(6). This raises the question of whether there may be cases where the court can properly decline to analyze a case in light of the factors set out in Rule 37B(6). About that I will say nothing definitive, except that this case does not appear to me to be one in which it would be judicious to ignore Rule 37B(6).

No order as to costs was made in this case because “the parties have not adduced sufficient evidence on this application to permit the court to conduct a detailed examination of the factors outlined in Rule 37B(6).”

This is certainly far from the last of the judicial development of this new settlement rule. I will continue to post and comment about Rule 37B cases as they are released by the BC Supreme Court.