Tag: claim settlement

Why Global Settlement Offers Are OK in BC Wrongful Death Lawsuits

Interesting reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing the propriety of a global settlement in a wrongful death lawsuit involving children as beneficiaries.
In the recent case (Gaida v. McLeod) the Plaintiff Brenda Leah died “as a result of methotrexate toxicity and that the medication was mistakenly given to her daily, rather than weekly“.  The Defendants admitted liability in causing the wrongful death.   In the course of the lawsuit the Defendants and the estate of the Plaintiff reached a global settlement.   A disagreement arose and leading to a Defendant application to declare that a binding settlement took place.
The Plaintiff opposed this arguing that “ the failure to allocate specific amounts of the settlement money to the two minor children renders the proposed settlement too uncertain and vague to be enforceable.”  Mr. Justice Pearlman rejected this argument and provided the following reasons explaining why a global settlement can survive scrutiny:
[60]         In British Columbia, the court must approve the amount to be paid in settlement of an infant’s claim before the settlement of a claim under the FCA may be implemented.  The court may approve payment to an infant in an amount different from that proposed by the parties or recommended by the Public Trustee and Guardian.  The court may increase the amount to be paid in settlement of an infant’s claim beyond that proposed by the parties, and may do so at the expense of an adult claimant…
[67]         Any amounts which the parties propose to allocate to the heads of damages applicable to minor claimants, including loss of care, guidance and companionship, and loss of inheritance, are proposals only, subject to the court’s approval.  Ultimately, the court must determine the amount to be allocated to each minor claimant, which may require the reapportionment of allocations proposed by the parties within the global settlement amount.  While the global amount of settlement will not change, there can be no certainty respecting the parties’ allocation of specific amounts to each of the claimants, because the court has the exclusive jurisdiction to determine the allocation of settlement monies to the minor claimants.
[68]         Under s. 3(6) of the FCA, a defendant may make a single payment into court, in satisfaction of all claims, without specifying how that amount is to be allocated among the claimants.  There is no requirement under the FCA that a defendant making a payment into court must specify the amounts to be paid out to minor claimants.  In cases where the payment into court is accepted by the plaintiff, if the claim involves infant claimants the court must still approve the distribution of settlement monies to the minor claimants.
[69]         I conclude that the allocation of specific amounts to minor claimants, which is always subject to the court’s approval, and may vary from the amount proposed by the parties, is not an essential term for the formation of an enforceable settlement agreement.

Snow, Ice, and your ICBC Claim

Like most of my readers I am sick of this drawn out winter and the sight of snow this week-end in Victoria seems like a cruel joke.
Snow in BC has two reliable results 1. Car Accidents, 2. Phone call to BC personal injury lawyers about those car accidents. The second is particularly true for Victoria personal injury and ICBC claims lawyers because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week as a Victoria ICBC claims lawyer I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits (also referred to as no fault benefits). There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering (non-pecuniary damages) in these circumstances. A person’s right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In these single vehicle accidents you usually only have yourself or the weather to blame, and last time I checked you can’t sue mother nature.
If someone else contributed to the accident (perhaps the road maintenence company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to go against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, you may very well have a claim for pain and suffering. This claim would be against your driver (except perhaps in the unusual circumstances mentioned above). If your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you have a tort claim. Assuming the driver is ICBC insured then you have the right to apply for both no-fault benefits from your own insurance and make a tort claim against the driver that will be covered through his third party liability ICBC insurance.
If you are advancing a tort claim against a driver be weary of the defence of “inetible accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven than the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common that when reporting such a claim to ICBC passengers too readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not safe (I’m not talking about driving like a maniac here, I’m talking about driving less than carefully for the winter driving conditions) and you give ICBC the alternate impression with a view towards helping the driver out, the result may be severely damaging your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that the accident was inevitable you will have a much harder time advancing or settling your ICBC tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will hurt your claim for pain and suffering.

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

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