Many people that are unhappy with an ICBC settlement offer seek the advice of a personal injury lawyer. Often times, however, people don’t consult with a lawyer because of the mistaken belief that if they hire a lawyer they will have to go to trial to resolve their injury claim. Some revealing statistics were released today showing just how few ICBC Injury Claims proceed to trial, even when claimants are represented by a lawyer.
Today the Office of the Information & Privacy Commissioner released their report into the Investigation Into Disclosure of Jurors’ Personal Information by ICBC.
In the body of the report statistics about the number of ICBC Claims settled in 2008 were revealed. Specifically page 4 of the report noted that “An example of the number of claims handled by the division in a given year is available from 2008 when approximately 674,500 claims were settled. Individuals were represented by lawyers in approximately 21,500 of settled claims. Only 299 of the claims proceeded to trial and only 37 were jury trials.”
If you do some quick math on the above figures you will see that only 1% of the people that hired lawyers and resolved their ICBC claims in 2008 actually went to trial. In other words, one in one hundred people who hired a lawyer for their ICBC Claim went to trial.
While there are many reasons why injury victims may choose not to consult with a lawyer these statistics show that the fear of an inevitable trial should not be one of them.
(Please Note: The Case discussed in this article was overturned by the BC Court of Appeal on May 7, 2010. You can click here to read the BCCA’s reasons for judgement)
As an ICBC Injury Claims Lawyer I have developed a particular habit when it comes to settlement of my clients claims. I typically never bind my clients to a settlement until they sign a full and final release (the settlement contract ICBC uses in concluding injury claims). This is my usual practice even if I receive firm instructions to settle an ICBC Injury Claim for a certain amount and I get a better settlement offer on the table.
Lawyers act as agents for their clients. Lawyers can, therefore, bind their clients to a settlement. Typically a client will give a lawyer authority to settle their claim for X dollars and the lawyer will attempt to get that amount or more. If a lawyer accepts an ICBC settlement offer on behalf of their client the client is typically bound to the settlement, even if the client later wishes to get out of the settlement by not signing ICBC’s full and final release.
When deciding whether or not to accept an ICBC settlement offer, like many important decisions in life, people sometimes second guess themselves and change their mind. For this very reason I typically negotiate on a non-binding basis making it clear to ICBC or ICBC’s lawyers that if a settlement is agreed to in principle it is never binding on my client unless and until they sign the full and final release. This gives clients one last chance to change their mind which is never a bad option to have.
If such a term is not part of the settlement negotiations then a client may be bound even if they get cold feet and decide not to sign ICBC’s settlement contract. Reasons for judgement were relased today (Lacroix v. Loewen) discussing exactly such a scenario. In Lacroix the Plaintiff gave her lawyer instructions to accept a settlement offer. The lawyer then did accept ICBC’s settlement offer. The client, after speaking with some friends, decided not to proceed with the settlement and did not sign ICBC’s settlement contract. The client proceeded with her Injury Claim and ICBC brought an application to dismiss the lawsuit on the basis that it was already settled.
In the end Mr. Justice Williamson permitted the claim to continue finding that after the accepted offer ICBC insisted upon a new term which was not part of the agreed settlement thus undoing the agreement to settle. But for this fact, it appears, the Plaintiff would have been bound to the settlement. Mr. Justice Williamson summarized the law relating to offer and acceptance of ICBC Injury Claims and the required paperwork that flows from such a contract as follows:
In Fieguth v. Acklands Ltd. (1989), 37 B.C.L.R. (2d) 62, 59 D.L.R. (4th) 114 (C.A.), McEachern C.J.B.C., speaking for the court, said at 70:
In these matters it is necessary to separate the question of formation of contract from its completion. The first question is whether the parties have reached an agreement on all essential terms. There is not usually any difficulty in connection with the settlement of a claim or action for cash. That is what happened here and as a settlement implies a promise to furnish a release and, if there is an action, a consent dismissal unless there is a contractual agreement to the contrary, there was agreement on all essential terms.
The next stage is the completion of the agreement. If there are no specific terms in this connection either party is entitled to submit whatever releases or other documentation he thinks appropriate. Ordinary business and professional practice cannot be equated to a game of checkers where a player is conclusively presumed to have made his move the moment he removes his hand from the piece. One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed. If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances.
In the case at bar, the question becomes whether the defendants, in sending over the cheque for the settlement sum along with the release documents, insisted upon terms or conditions which had not been agreed upon or were not reasonably implied in these circumstances.
There is no doubt upon the affidavit material filed by the plaintiff that when ICBC offered the plaintiff $7,000 via her counsel Mr. Mickelson, she told Mr. Mickelson to accept that offer. He did.
It was after a conversation with friends that the plaintiff telephoned Mr. Mickelson again and told him that she would not accept the offer.
The plaintiff says that the documents, which she saw only after purporting to withdraw her acceptance, show that Mr. Mickelson did not follow her instructions. She had instructed him to make an offer at $6,500, plus user fees, plus all of her expenses, an offer that would have amounted to $7,692. However, she points out that according to the ICBC adjuster’s notes, Mr. Mickelson did not make an offer of $7,692. Instead, he countered ICBC’s offer of $5,500 with an offer of $7,000. Thus, the offer that he made was $692 less than the one authorized by the plaintiff.
Nevertheless, when Mr. Mickelson told the plaintiff that ICBC had made an offer of $7,000, it is undisputed that she said she would accept ICBC’s offer.
In these circumstances, I cannot see how the fact that the offer was $692 less than what was originally authorized matters. The fact is that there was $7,000 on the table. Her solicitor advised her to take this offer and she did.
The lesson in this case is to make sure that when you give your lawyer settlement instructions understand that he/she can make a binding commitment on your behalf based on these instructions. Better yet,if you don’t know your lawyers negotiation tactics consider asking him or her to negotiate on a non-binding basis giving you, the client, the final say when the claim settlement paperwork is presented to you.
You are injured through the fault of another motorist in BC. You miss time from work. You go into debt paying for therapies and medications. You experience pain and your typical lifestyle is interfered with. Then, as your injuries are slowly getting better you are approached by your ICBC adjuster to settle your claim. The offer seems low but you are sick of dealing with the aftermath of your ICBC Injury Claim and you accept the offer.
Time goes by and your injuries linger. You had hoped that you would get better but unfortunately things didn’t turn out as optimistically as you had planned. You’re still missing time from work. Your therapy expenses are ongoing and your doctor is running out of ideas. Your actual expenses and wage loss soon exceed your ICBC settlement. You regret settling your claim and then you call an ICBC Injury Claims Lawyer. The Lawyer tells you the offer was unfair, your claim was likely worth several times more than what you settled for. You eagerly ask if the lawyer will take your case and he/she responds “sorry, you signed a contract with ICBC saying you can no longer sue as a result of this crash, you can’t reopen your claim.”
As an ICBC Injury Claims Lawyer this is a scenario I unfortunately see all too often. People often contact me after they’ve settled their claim. Except in exceptional cases (for example where a settlement is obtained through fraud or by duress) ICBC Claims Settlements usually can’t be set aside. I hate breaking this news to people if they’ve clearly been short changed by their settlement.
So, if I can impress one fact on anyone with an ICBC Injury Claim, it is this: get legal advice before you settle your claim. It doesn’t have to be from me. It can be from any lawyer experienced handling ICBC Claims. Shop around, find a lawyer who you can connect with and get a free ICBC Claims consultation. BC has many very well qualified personal injury lawyers and many of them provide initial consultations free both of charge and obligation. I’ve seen many experienced ICBC Injury Claims Lawyers spend many hours giving people free initial consultations, even in circumstances where the lawyer was not interested in taking the case.
Getting anything of value for free is rare so why do ICBC Injury Claims Lawyers give Free Consultations? It’s simply a matter of economics. This is a competitive business and giving free consultations is almost a requirement for ICBC Injury Claims Lawyers wishing to stay competitive. It’s a simple formula of supply and demand and the result is the availability of free consultations for you, the consumer.
So take advantage. Get a free consultation before you settle your ICBC Injury Claim and help yourself make an informed choice before saying yes or no to ICBC’s settlement offer.
(Note: The case discussed in this post was overturned by the BC Court of Appeal om May 3, 2010 with a 75% / 25% split of liability. You can click here to read the BC Court of Appeal’s judgement)
One of the toughest types of ICBC injury cases to predict the outcome of are those involving the issue of fault when 2 vehicles collide in an intersection. Even some of the most seasoned ICBC Injury Claims Lawyers can’t predict the outcome of a case where a left hand turning driver on an amber light is stuck by a through driver. There are plenty of cases dealing with such crashes and the results vary from finding the left turning vehicle 100% at fault to those finding the through driver 100% and every imaginable split in between. Reasons for judgement were released today dealing with an intersection crash finding a left hand turning vehicle 100% responsible for an intersection crash. In today’s case (Salaam v. Abramovic) the Plaintiff was turning left at the intersection of Scott Road and 120th Street in Surrey, BC. This intersection is controlled by a stop sign. As the Plaintiff was turning left her vehicle was struck by the Defendant’s. Madam Justice Gropper made the following analysis in finding the Plaintiff 100% at fault:
The essence of the plaintiff’s position is that the defendant should have foreseen what the plaintiff would do: he knew that the plaintiff intended to make a left hand turn, crossing the northbound traffic and entering the southbound lane to Scott Rd.; he knew that her attention was to her right for approaching southbound traffic. He should have known that the plaintiff was moving slowly across the northbound lanes and would continue to do so despite the presence of the defendant’s vehicle. She argues that the defendant had no reason to assume that she was aware of the defendant’s approach.
The plaintiff relies on the provisions of s. 175(1) of the Act. She says that once she entered the intersection, the defendant’s vehicle had not nor was it approaching so closely that it constituted an immediate hazard. Essentially, when she entered the intersection it was safe to do so and the defendant ought to have yielded the right of way to her.
The plaintiff was the left turning vehicle. It was her obligation, in accordance with s. 174 of the Act, toyield the right of way to the traffic approaching from the opposite direction. The plaintiff did not turn her head to observe whether traffic was approaching. Nor did the plaintiff comply with the provisions of s. 175 of the Act. She did not stop before entering the intersection. The plaintiff did not do anything to ascertain whether there was traffic on the through highway, or whether it was close. She did not proceed with caution, despite driving slowly.
The unassailable fact is that the defendant was there to be seen from 450 feet away from the plaintiff before she entered the intersection.
The plaintiff argues that the defendant had no reason to assume that she was aware of his approach. Putting aside for the moment that was her duty to determine whether there was traffic approaching on the through highway, he was entitled to assume that she did know he was approaching, by hearing him, or to expect that she would actually turn her head to observe approaching traffic.
I agree with the analysis in Pacheco that it was the plaintiff’s obligation, as she wished to make a left turn at the intersection, not to proceed until she could do so safely. The plaintiff did not determine whether her turn could be done safely.
The authorities upon which the plaintiff relies, as well as the provisions of the Act, require, at the very least that all drivers keep a proper lookout.
The dispute between the experts devolves to when the defendant’s approach constituted an immediate hazard to the plaintiff. The defendant’s expert, Mr. Lawrence, describes the defendant becoming an immediate hazard to the plaintiff when she enters the left lane of the northbound traffic. The plaintiff’s expert, Mr. Brown, considers that the plaintiff’s vehicle was an immediate hazard to the defendant when she entered the intersection.
Mr. Brown’s analysis ignores the provisions of ss. 174 and 175 of the Act, which require the left turning vehicle to first stop, and then yield the right of way to traffic approaching so closely that it constitutes an immediate hazard, and then proceed with caution. The plaintiff did none of those things, she did not stop at the stop sign, she did not ascertain whether there was any through traffic, whether such traffic constituted an immediate hazard or not, nor did she proceed with caution. Mr. Brown’s analysis requires the defendant to anticipate that the plaintiff was not following the rules of the road.
Mr. Lawrence considers that the immediate hazard arose when the plaintiff entered the left lane of the northbound traffic. I agree. The plaintiff was driving very slowly and could stop almost immediately. It was reasonable for the defendant to assume that she was aware of his presence and that she would not move into his path. She did. When the defendant honked, the plaintiff stopped. It was the plaintiff’s presence in the defendant’s lane of travel which caused the accident.
The plaintiff did not ascertain whether the defendant was an immediate hazard when she entered the intersection. In all the circumstances, I find that the plaintiff is 100% liable for the collision which occurred.
Therefore, the plaintiff’s claim is dismissed. The defendant shall have his costs.
(Please note the case discussed in this post was overturned by the BC Court of Appeal in reasons for judgment released on September 21, 2010. You can go to my September 2010 archives to read my summary of the BC Court of Appeal Decision) Reasons for judgment were released today by the BC Supreme Court (Mariano v. Campbell) awarding a Plaintiff just over $115,000 as a result of injuries sustained in a 2006 rear end collision.
This was an ICBC Claim that apparently fit into ICBC’s Low Velocity Impact (LVI) Program. The vehicles sustained modest damage and the ICBC Claims Lawyer defending the Claim argued the Low Velocity Impact defence. The details of this are set out in paragraphs 33-41 of the judgment.
The defendant says the accident was a low velocity impact claim. The cost of repair for the Ms. Mariano’s 2005 Ford Escape was $1,712.96. The cost of repair to Ms. Campbell’s 2000 Honda Civic was $3,714.07.
The defendant argues that Ms. Mariano’s injuries should be consistent with a modest low impact accident and anything more than modest injuries from the accident are an unreasonable consequence. Relying on Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paras. 11-18, the defence argues that the injuries alleged are not a reasonably foreseeable consequence of the minor motor vehicle accident.
Ms. Campbell was called by the defence presumably to testify that the collision was only a minor one. However even Ms. Campbell admitted to sustaining whiplash injuries.
 Ms. Campbell was stopped in gridlocked traffic waiting for the traffic light to change. When she saw the light turn green and traffic ahead of her starting to move, Ms. Campbell starting moving her vehicle. When Ms. Mariano’s vehicle suddenly stopped, Ms. Campbell did not apply her brakes before she rear-ended the Ford. When she got out of her vehicle, Ms. Campbell saw a stalled vehicle, one or two vehicles in front of her.
Ms. Campbell could not estimate the speed of her vehicle at the time of impact but defence relies on her evidence that another car could not have fitted in between her vehicle and Ms. Mariano’s vehicle. However, Ms. Campbell said that on the impact, she immediately felt pain in her neck, the middle of her back, and her right arm. She went into shock and her whiplash injuries took three months to resolve.
The defendant tried unsuccessfully to attack Ms. Mariano’s credibility and argues that because of the minimal impact, Ms. Mariano can only have suffered minimal injuries. However I find Ms. Mariano a very credible witness. She continues to work despite her symptoms. The pain in her neck and shoulders prevents her from working the way she used to work, and from doing the things she used to enjoy doing. She was unable to buy her sons a big pumpkin for Halloween as she had always done before because she is now unable to carry a big pumpkin. Ms. Mariano became quite visibly distressed when she described the activities she can no longer participate in with her children because of her injuries or because she is now simply too tired at the end of the work day to do anything else.
The defendant points to Ms. Mariano’s application for mortgage life and disability insurance where she filled in “March 2006” as the “date of the last episode” of neck pain and that Dr. Darby wrote a note to the insurance company indicating that Ms. Mariano had fully recovered from the accident with no complications or sequelae.
The statements may not have been entirely accurate but it was understandable. Ms. Mariano tried to put herself in the best light she could so that she could obtain, as she did before the accident, mortgage disability insurance with no exclusions. The defendant’s negligence caused the insurance company to dramatically limit the mortgage disability insurance available to Ms. Mariano through no fault of her own. The defendant should not be heard to be complaining too loudly.
Terry Watson, an estimator for the Insurance Corporation of British Columbia, testified that neither Ms. Mariano’s vehicle nor Ms. Campbell’s vehicle sustained structural damage. However, the hood of Ms. Campbell’s vehicle collapsed and slid under the Ford Escape, striking the spare tire underneath. Mr. Watson agreed that that the impact of the collision was likely not absorbed by the bumpers.
The Defendants ICBC Claims Lawyer went on to argue that minimal damages should be paid because more severe injuries are not reasonably foreseeable from a minor or modest collision.
Madame Justice Loo rejected the defence arguments and accepted that the Plaintiff was indeed injured in this collision. The court found that the Plaintiff suffered soft tissue injuries which have resulted in chronic pain and that there was a chance that these symptoms would linger in the future.
Damages were awarded as follows:
1. Non Pecuniary Damages: $30,000
2. Past Wage Loss: $45,428.91
3. Loss of Earning Capacity: $15,000
4. Special Damages: $574.16
5. Cost of future care: $1,000
6. cost of re-training: $23,307
Today while stuck at the Kelowna Airport waiting to fly back to Victoria and got to chatting with a fellow traveler who was contemplating firing his accountant.Hearing this and the reasons for it made me think of sharing some further thoughts on the topic of hiring/firing an ICBC Claims Lawyer.And being stuck in an airport I have plenty of time to do so!
Trust.Trust is the most important factor in having a successful relationship with your ICBC Injury Claims Lawyer.Trial experience, past settlement results, experience with your type of case, whether your lawyer sometimes acts for ICBC, whether your lawyer signed the SAA are all very important factors to consider when hiring an ICBC Injury Claims Lawyer but nothing can undo a relationship between a lawyer and client faster than lack of trust.
Your ICBC Injury Claims Lawyer will have to give you advice on many topic most importantly, advice on what a fair range of settlement is.If you don’t trust that your lawyer is taking your claim seriously and don’t trust his/her advice it will be difficult if not impossible to make an informed decision regarding whether to settle your ICBC injury claim or proceed to trial.
Settlement offers are made in almost all ICBC personal injury claims.Your lawyer’s job is to give you advice on the merits of any offer and to offer a ‘risk assessment’ about the potential benefits and pitfalls of trial.You must trust that your ICBC Injury Lawyer is giving you good advice otherwise you risk making a poor decision.If you don’t trust your lawyer your decision-making ability will be compromised and this can lead to very unfair results.For example you may take a settlement offer that your lawyer says is unfair because you don’t trust his/her judgment or on the other hand you could proceed to trial, lose and face significant ‘costs’ consequences after failing to heed advice that an ICBC settlement offer is fair and should be seriously considered.
Trust goes to the heart of a lawyer/client relationship and if this is missing then a claim may be compromised.So what can be done?If there is a lack of trust the first and most important thing you should do is communicate this to your lawyer.Try to work through the problem.Make your lawyer make time for you.Most ICBC Injury Claims Lawyers work on a contingency basis meaning they don’t bill you for every phone call, e-mail or meeting.Make time to sit down and speak with your lawyer and work through any perceived problems.This will likely cost you nothing and can go a long way to building up a mutual trust which will help your lawyer get a good result for you.
If, after all reasonable efforts, you still can’t build a level of trust in your lawyer you will need to seriously consider retaining new counsel.
The bottom line is this: If you run into problems in your legal relationship you should talk to your lawyer.He/she works for you and you are entitled to have all of your questions answered.Put effort into working things through.If things can’t be worked out consider moving on.You don’t want to second guess yourself when you decide if and how you resolve your ICBC Personal Injury Claim.
As many of you know ICBC is a Provincial auto insurer which enjoys certain statutory monopoly privileges in British Columbia. Since ICBC insures almost every BC motorist when a crash happens there is a good chance ICBC represents both drivers. When the faultless driver is injured and sues typically one adjuster is assigned to deal with his/her claim for ‘no-fault’ benefits under their own policy of insurance and that same adjuster is assigned to defend the tort claim (the claim for damages including pain and suffering) made against the offending driver.
This potential conflict of interest can create various problems. One of which often comes up is the right of the ‘defendant’ (who is insured by ICBC) to obtain an independent medical exam in defence of the tort claim in circumstances where the ICBC adjuster already sent the Plaintiff to an independent medical exam in the process of reviewing the Plaintiff’s application for no-fault benefits. Reasons for judgement were released today dealing with exactly such a problem.
Here the Plaintiff was allegedly injured in a 2005 motor vehicle collision. He applied to ICBC for no-fault benefits under his own policy of insurance and also sued the other motorist in tort. The other motorist was also insured with ICBC. One adjuster was assigned to handle both claims.
That ICBC adjuster sent the plaintiff to be assessed with an orthopaedic surgeon. That surgeon wrote a report . The defence lawyer in the ICBC tort claim then applied to court for an order to send the Plaintiff to a different physician claiming that the first report was set up to review the Plaintiff’s claim for no-fault benefits and that the defendant was entitled to a report from a doctor of his own choosing to level the playing field.
Here, the court dismissed the Defendant’s application finding that when ICBC sent the Plaintiff to the first orthopaedic surgeon it may have been to assess the claim for no-fault benefits but the ICBC adjuster asked the doctor to comment on things that went beyond the scope of such an application. The court concluded that the Defendant can ask the same doctor to comment on the Plaintiff’s condition if necessary but they were not entitled to a new doctor’s opinion in the circumstances.
The Court’s key analysis is found at paragraphs 13-15 which I reproduce below:
It appears in the instant case that Ms. Dyrland was handling both the Part 7 and the tort claims arising out of the alleged accident. Although she deposes that her intention was that the assessment by Dr. Bishop was for the purposes of the Part 7 claim only, her instructions to him suggest a wider scope. In the case of Longva v. Phan,  B.C.J. No. 1035, 2007 BCSC 690, Master Bolton considered instructions identical to those set out at paragraph 7 of these reasons. He noted that, however specific or equivocal the adjuster’s requests might have been, a request for a “history” of the accident, recommendations concerning future treatments and surgery and, in particular, a request for comment on a contributory negligence (seat belt) issue, must be considered as solely referable to the plaintiff’s tort claim and not merely concerned with issues relating to a claim for disability benefits. Thus, while the adjuster may have expressed her intention to limit the assessment to the Part 7 claim, the nature of her instructions suggests that she expected a report which would address not only the plaintiff’s current needs for treatment and rehabilitation but, as well, his prospects for recovery and other issues unrelated to the disability claim. I have reached the same conclusion. The assessment prepared by Dr. Bishop on December 22, 2005 was a “first” examination. Having reached that conclusion, I must now consider whether the circumstances justify a “second” examination.
A party seeking to have a second examination preformed by a practitioner practicing in the same speciality or discipline as a practitioner who has already examined a person faces an uphill battle: Hothi v Grewal,  45 B.C.L.R. (3d) 394 (SC); Hamada v. Semple,  B.C.J. No. 1307 (SC). Successful applicants are those who are able to demonstrate that something has happened since the first examination which could not have been foreseen or which could not, for some other reasons, have been addressed by the first examiner. It also seems to me that material filed in support of the application should indicate why a further examination by the doctor who performed the original assessment is not appropriate.
In the circumstances of this case, there appears to be no good reason why Dr. Bishop could not be asked to comment on the relevance of the disk herniation noted in January 2006, and, if necessary, perform a further examination of the plaintiff.
The concern many Plaintiff’s ICBC injury claims lawyers have in cases where one ICBC adjuster is assigned to both the Plaintiff’s and Defenant’s claims is that of ‘report stacking’. That is there is a concern amongst some ICBC injury lawyers that ICBC may use their position as insurer for both parties to get more ‘independent’ reports than a Defendant may otherwise be entitled to. In deciding whether to consent to an application by a defendant insured with ICBC to a further examination it is important to review the factors discussed in this useful judgement.
If you would like further information or require assistance, please get in touch.
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.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.