Tag: icbc tort claims

Understanding The 2 Roles of ICBC – "Your" and "Their" Insurer

Here is a brief video I’ve uploaded to YouTube discussing ICBC’s dual role and some information you should know before you place your first call to ICBC after being injured in a BC motor vehicle accident:

As readers of this Blog undoubtedly know, ICBC is a British Columbia monopoly auto insurer which usually plays 2 roles in BC auto injury claims.  When you are injured by another BC motorist who is at fault and you and they are insured with ICBC, ICBC will not only need to process your claim for Part 7 Benefits but also process the tort claim you are making against the at fault motorist.   I hope the information covered in this video is of assistance.

Medical Exams and ICBC Tort and No-Fault Claims

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:

[13] 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, [2007] 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.

[14] 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, [1993] 45 B.C.L.R. (3d) 394 (SC); Hamada v. Semple, [1983] 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.

[15] 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.

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. (4th) 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 RegulationAyles.

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 RegulationMawji 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. (4th) 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.

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!”
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