Rule 37B and ICBC – J. Boyd Considers fact Defendant Insured by ICBC

As you may know Rule 37-B is the new BC rule dealing with formal settlements and costs consequences in the BC Supreme Court.  (to find my previous posts on this case search this cite for ’37B’).
This new rule will take some time to work itself out.  There are already conflicting reasons for judgement addressing whether it is appropriate to look at whether the Defendant is insured when considering costs consequences.
Last week J. Hinkson refused to consider the insurance status of a defendant when deciding whether to award ‘double costs’ after trial.
Reasons for judgement were released today considering the fact that the defendants were ‘represented by ICBC’ when weighing the ‘financial circumstances’ of the parties.
In addition to being the first precedent that has looked at the insurance status of the defendant as a relevant consideration, this case is interesting because it is the first to trigger ‘double costs’ even though a matter settled before judgement.
In this case the Plaintiff alleged a Mild Traumatic Brain Injury after a BC car accident.  She sued and made a formal offer to settle for $500,000 which expired at the start of trial.  The case settled on the 11th day of trial when the defendant’s offered to settle for $1 Million ‘plus assessable costs and disbursements’ less advances paid.  The Plaintiff’s accepted this offer.
The parties could not agree on the costs implications of the settlement were.  The Plaintiff asked for double costs because the Plaintiff’s reasonable settlement offer (which complied with Rule 37B) was rejected and the Plaintiff had to incur significant expense in running 11 days of trial prior to achieving settlement.
The court agreed the Plaintiff was entitled to double costs in these circumstances.  The key finding being made at paragraph 42 which I set out below:
  In the case at bar, on a review of the Rule and the authorities, I conclude that the plaintiff is indeed entitled to double costs from the date of the August 12th offer of settlement forward.  Since the defendants ultimately settled for an amount which was double the plaintiff’s original pre-trial offer, it is clear in my view that her original offer to settle “…was one that ought reasonably to have been accepted”.  Certainly the terms offered in August were far more advantageous to the defendants than the ultimate amount represented by the settlement agreement.  It is also clear that there is a substantial disparity in financial circumstances between the parties.  The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff.  Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial
 

costs consequences, formal settlement offers, icbc cases, ICBC settlement, icbc settlement advice, icbc trials, Radke v. Moreau, radke v. Parry, Rule 37B

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ERIK
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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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