An Arbitration determination was recently released addressing the jurisdiction of an UMP Arbitrator to award disbursements for expenses for items initially used in a tort trial then subsequently used in an UMP Arbitration. In short Arbitrator Camp held that there is jurisdiction for recovery of such costs provided they were reasonably incurred.
In the recent case (Undisclosed v. ICBC) the claimants were awarded damages in a Washington State trial. The Defendant was underinsured. When the Claimants applied to ICBC for payment they needed to re-try the value of their cases pursuant to BC law. Although their damages were assessed at a far lesser value than they were in the Washington State trial, they nonetheless were successful in proving their damage claims. The Claimants relied on much of the same evidence in the ICBC UMP hearing as they did in the initial trial.
Following arbitration the Claimants applied for an order that ICBC pay for their disbursements incurred in proving their damages claim. ICBC opposed arguing that the arbitrator “has no jurisdiction to award costs that would include legal fees ad disbursements in the Washington State action“. While arbitrator Camp agreed “with this bald assertion” he went on to find that he could award disbursements even for items initially used in the Washington State trial. In so concluding Arbitrator Camp provided the following reasons:
19. Dealing first with the issue of the nature of costs that I can properly award, I find that as a result of section 148.2(2) and section 148.2(3) of the Regulation, I am constrained to only awarding party and party costs and I am not permitted to award actual reasonable legal fees as specified in section 11(2)(a) of the Commercial Arbitration Act. The parties agreed that the jurisprudence stemming from the Rules pertaining to costs (now Rule 14) ought to be applied mutatis mutandus to the UMP arbitration process…
31. …An UMP arbitrator has a broad discretion to award party and party costs including reasonable disbursements that are utilized in the subject UMP arbitration process. This is the approach I adopt for the reasons that follow. The reasonable disbursements that I find are recoverable in these UMP proceedings find their genesis in the MVA which eventually gave rise to these arbitration proceedings. Yes many of these reasonable disbursements were used in the Washington State trial but they were also necessary and used in these UMP arbitration proceedings. There is no risk that there is any chance for double recovery of these disbursements by these claimants and I reiterate they are subject to the test of reasonableness.
32. Finally, Mr. Mersey made the argument that any award of party and party costs and reasonable disbursements are governed by Washington State law which, as noted above, severely restrains recoverable costs and disbursements relative to the law of British Columbia. I disagree. In my view there is no connection between entitlement of UMP claimants to party and party costs and reasonable disbursements pursuant to the British Columbia provisions of the Regulation and the Commercial Arbitration Act and the Rules of Procedure for Domestic Commercial Arbitration, and the provisions of Washington State law which severely restrains recoverable costs and disbursements. I am bound to adhere to the former.
Since ICBC’s Underinsured Motorist Protection coverage is a “fund of last resort” there are many deductions ICBC is entitled to take advantage of before paying funds out to Claimants. These deductions, however, do have limits and this was demonstrated in an UMP Arbitration Determination released last year.
In last year’s claim (Undisclosed v. ICBC) the three claimants were awarded damages after receiving injuries from an underinsured motorist in Washington State. One of the Claimant’s damages included $95,000 for past income loss. ICBC argued that $65,000 should be deducted from this assessment for EI benefits that the Claimant was or would be entitled to as a result of section 148.1(f.1) of the Insurance (Vehicle) Regulation.
Arbitrator Camp rejected ICBC’s argument and reduced the amount by a much more modest $3,034 figure which was the sum the Claimant actually received from EI. In refusing to make the greater reduction advanced by ICBC Arbitrator Camp noted that EI Maternity Benefits are not deductible in UMP Claims finding as follows:
57. Other than pure speculation as to future EI benefits, some of which may indeed be predicated on maternity which is completely unrelated to the underlying facts and circumstances giving rise to the UMP award and therefore to any issue of deductibility, ICBC has led no evidence pertaining to the deductibility of EI benefits. I therefore find that ICBC has not met the onus of proving any amount to be deducted with respect to future EI benefits.
While there is no shortage of caselaw addressing the BC Supreme Court’s ability to order a Plaintiff to undergo an Independent Medical Exam in the course of a personal injury lawsuit, Arbitrators determining Claimant entitlement to Underinsured Mototist Protection (“UMP”) Compensaiton have no such authority. This was determined in an UMP decision released last year.
In last year’s case (Undisclosed v. ICBC) the Claimant was severely injured by an underinsured motorist in Washington State. The Plaintiff succeeded in her liability claim against the motorist and was awarded over $1 million in damages. The liability finding was binding against ICBC but the damage award was not as it was not determined under BC law.
In the course of the Claimant’s UMP arbitration (conducted under the Commercial Arbitration Act applying the Domestic Commercial Arbitration Rules of Procedure) ICBC applied to introduce into evidence an independent medical report obtained by another Defendant in the Washington litigation and further to compel the Plaintiff to attend three so-called ‘independent’ medical exams.
Arbitrator Camp ruled that while ICBC was entitled to introduce the report obtained in the previous litigation, the arbitrator had “no jurisdiction” to compel the Plaintiff to attend an independent medical exam. Arbitrator Camp provided the following reasons:
25. I have reviewed the Rules that govern this arbitration as amended in 1995 and 1998 and I again find no express or implied authority in an arbitrator to order that the claimant undergo an independent medical examination or evaluation. This lack of jurisdiction is underscored by the fact that the 1995 and 1998 amendments to the Rules expressly empowered an arbitrator, at his or her discretion, to order a pre-hearing oral examination of a party.
26. I am mindful of the argument by ICBC that I must treat ICBC fairly and I must give ICBC the full opportunity to present its case. I am also mindful of my obligation that I must strive to achieve a just, speedy and economical determination of this proceeding on its merits. See Rule 19.
27. This accident and the injuries to this claimant happened over 14 years ago and without being critical of any counsel, the wheels of justice in this case are grinding very slowly, some might say too slowly. This claimant has been examined by a host of medical practitioners, both treating physicians and independent medical examiners, as well as other medical oriented practitioners. She has been examined under oath on two occasions on the subject of her damages. All of this evidence is at hand. Certainly, it can be argued that there are outstanding uncertainties pertaining to her medical condition and pertaining to her future care and capacity to earn income but that will always be the case.
28. I conclude that I have no jurisdiction to order a form of independent medical examination. I also wish to add that if I did have such jurisdiction and if that jurisdiction was discretionary, in this case and in all of the circumstances pertaining to this case, I would not exercise my discretion in favour of ordering the independent medical examinations as requested by ICBC.
Reasons for judgement addressing quantum of damages were released last year by Arbitrator Camp in an ICBC UMP Dispute assessing $75,000 in non-pecuniary damages for a Claimant who suffered relatively modest injuries.
In last year’s case (Undisclosed v. ICBC) the three Claimants suffered injury in a 1996 collision in Washington State. At trial each was awarded over one million dollars. As the at fault motorist was under-insured the Claimants applied to ICBC for UMP. They had to re-litigate the value of their claim as the Washington Jury award was not binding on ICBC for UMP purposes.
The collision injured all occupants of the vehicle all of whom were related to each other. The Claimant and her three daughters were injured, some of these injuries were severe. While the Claimant’s injuries themselves were not severe her “matriarchal role…has been significantly and adversely affected“. In assessing non-pecuniary damages at $75,000 Arbitrator Camp provided the following reasons:
97. With respect to general damages for pain and suffering, this is a claim in my opinion in which more attention needs to be paid to the rubric of “suffering” than “pain”. I turn to a few fairly recent British Columbia decisions which offer guidance in this area….
102. Hence, in addition to listing “emotional suffering” (not defined) as a common factor influencing the award of non-pecuniary damages, the Stapley case considers, and adds commentary and an award for the “loss of lifestyle”.
103. In Kuskis v. Tin, 2008 BCSC 862, the plaintiff suffered from a worsening of a pre-existing migraine disorder, a new form of headache and low grade but persistent neck and shoulder pain as a result of soft tissue injuries caused by a motor vehicle accident. In awarding Ms. Kuskis non-pecuniary damages, the court noted that she was “sometimes exhausted, irritable and unhappy”, and while she could work, travel and socialize most of the time without significant impairment, her personal life has been diminished by her increased headaches and pain. Specifically, her ability to form and maintain intimate relationships has been compromised by her increased irritability and fatigue (para 143).
104. Other factors taken into consideration under the general concept of “pain and suffering” include: anxiety, depression, deleterious impact on quality of life (specifically comparing personality and lifestyle before and after the accident) (see Djukic v. Hahn, 2006 BCSC 154 at paras. 61-64); changes in personality including being more “withdrawn and distracted”, increased tiredness, and inability to enjoy activities previously enjoyed (see Fox v. Danis, 2005 BCSC 102 at paras. 112-122); and depression affecting concentration and attention (Maillet v. Rosenau et al., 2006 BCSC 10 at paras. 63-65).
105. I find that Mrs. T has suffered much more than just aches, pains and headaches. Her world was and is hinged on her matriarchal role that has been significantly and adversely affected by this accident as described above. Taking all of the circumstances into account, I find an appropriate award of damages for pain and suffering to be $75,000.
In my continued efforts to create a searchable UMP Claims database, I summarize a 2009 UMP Decision addressing whether ICBC could re-litigate quantum of damages after the issue was already decided in an out of Province trial. In short the Arbitrator held that trial verdicts addressing liability are binding for UMP coverage purposes but awards addressing quantum are not binding as these need to apply the law of British Columbia.
In the recent case (Undisclosed v. ICBC) the Claimants were badly injured in a 1996 collision in Washington State. The at fault driver had only $200,000 of insurance coverage. The injured parties were each insured with $1 million of Underinsured Motorist Protection with ICBC. They sued the ICBC insured driver in Washington State and were awarded global damages of $9.1 million with 5 of the 6 Claimants’ individual awards exceeding $1 Million.
The Claimants and ICBC could not agree on the amount of UMP Benefits payable and submitted the issue to arbitration. The arbitrator was asked to decide if the quantum award from Washington State was binding (less applicable deductions) or if the issue could be re-litigated. In finding that the Washington State jury award addressing damages was not binding Arbitrator Camp provided the following reasons:
21. On the facts of this case ICBC concedes the claimants have satisfied all of the prerequisite requirements laid down for UMP coverage. Hence, it is conceded that the Washington jury verdict established liability on the underinsured motorist, resolved issues of contributory negligence and established that the damages attributable to the fault of the underinsured motorist exceeded the insurance limits and assets available to compensate the claimants. Put another way, it is conceded that the Washington jury verdict determined that the claimants are “insureds” and (the at fault motorist) is an “underinsured motorist” for the purposes of the UMP scheme.
22. In the majority of cases, in my experience, the parties (ICBC and the claimants) agree that the prerequisites for UMP coverage have been satisfied and the parties arrive at a settlement pertaining to UMP compensation. Where the parties cannot agree, ICBC can follow one of two courses of action. ICBC can either require that the claimant(s) proceed to a tort trial to determine the prerequisites necessary for UMP arbitration, or they can agree that those prerequisites have been met and proceed to an UMP arbitration by consent.
23. In this case, the evidence satisfies me that ICBC required a tort trial to determine the prerequisites necessary for UMP arbitration. The claimants chose Washington State as the most favourable jurisdiction to proceed with the tort trial, for good and valid reasons which are not germane to the arbitration issue before me…
28. Section 148.2(6)(a) relating to the legal entitlement to UMP coverage is relatively straightforward. It says that where an accident for which UMP compensation is being sought occurs in another jurisdiction, the law of the place where the injury or death was suffered shall be applied to determine whether the claimants are legally entitled to recover UMP compensation and if a difference arises as to that legal entitlement, that difference shall be arbitrated under the Commercial Arbitration Act of British Columbia. It is section 148.2(6)(b) relating to the measure of any damages and the assessment of the amount of UMP compensation payable that is at the nub of this arbitration…
33. Turning to my interpretation of s. 148.2(6), I find that the section is properly interpreted to mean that issues of legal entitlement shall be determined by Washington law in this case and that the issues pertinent to quantum of damages shall be determined by the law of British Columbia. I am fortified in coming to this interpretation because of the linkage between s. 148.2(6) and s. 148.1(5). Section 148.1(5) constitutes a limiting provision and the limitation only works or works much better if the interpretation of s. 148.2(6)(b) is interpreted such that the issues pertaining to the quantum of damages shall be determined by the law of British Columbia.