Tag: ICBC UMP Claims

The Dry Judgement Blues – Knowledge of lack of Registered Owner Consent

Knowingly riding in a vehicle involved in a collision where the at fault driver does not have the owner’s consent can lead to legal headaches when it comes to being compensated for injuries.  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, dealing with such a potential scenario.
In this week’s case (Schoenhalz v. Reeves) the Plaintiff was badly injured while riding as a passenger in a vehicle involved in a 2007 collision.  The Plaintiff suffered spinal fractures, various burns to her body, dental injuries and a pelvic fracture.  Damages of $282,992 were assessed.
The driver of the vehicle was found to be at fault.  The Court found, however, that the driver of the vehicle was not operating it with either the express or implied consent of the owner.  Accordingly the lawsuit against the vehicle owner was dismissed.    The driver was 15 years of age at the time and did not have a license.  The Court concluded that “at the time of the accident (the Plaintiff) knew that (the driver) was age 15 and did not have a driver’s license.”.
Why does this matter?  While this judgement did not get into collections issues such a finding could be problematic.
Typically a 15 year old uninsured motorist would have no means to satisfy a quarter million dollar judgement.  This leaves the issue of insurance.  In ‘no consent‘ situations ICBC treats the collision as uninsured leaving an injured plaintiff with only the ability to collect damages under either section 20 of the Insurance (Vehicle) Act or under their own Underinsured Motorist Protection plan (UMP).
While the above insurace plans often are valuable in satisfying an uninsured judgement, there are exceptions as to who can access these.  One such exclusion deals with knowingly being in a vehicle without driver consent.  A Plaintiff cannot access section 20 uninsured motorist funds if they “at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.”
A similar exclusion exists if a Plaintiff seeks to access their own UMP coverage.  Section 148(4)(c) of the Insurance (Vehicle) Regulation lets ICBC off the hook in circumstances where the Plaintiff ” is an operator of, or a passenger in or on, a vehicle that the insured knew or ought to have known was being operated without the consent of the owner.
When seeking to collect the judgement from ICBC such a judicial finding may cause ICBC to deny payment on the basis that a person “ought to know” that an owner likely is not providing consent to an unlicensed individual operating the vehicle.  This area of law has received scarce judicial commentary but these coverage exclusions should serve as a stark reminder to individuals considering taking a ride with an unlicensed driver.
 

Hospital Insurance Program Payments Non-Deductible Under UMP


In my continued efforts to create a searchable UMP Claims database, I summarize a 2009 UMP Decision which dealt with a variety of issues including whether payments received under BC’s Hospital Insurance Program are deductible by ICBC in Underinsured Motorist Claims.
In the 2009 case of APS v. ICBC the Claimant was severely injured in a 2004 collision in Nevada.  She was a BC resident and had UMP Coverage with ICBC.  Following the crash and initial treatment in the US the Claimant was airlifted back to BC and received further hospital treatment.  The cost of these totalled $197,263.  ICBC argued that the cost of these treatments were in the nature of insurance benefits and deductible under Section 148.1(1) of the Insurance (Vehcle) Regulation.   Arbitrator Boskovich disagreed and provided the following helpful reasons rejecting this argument:
130.  The services and benefits covered under out universal compulsory medical coverage, which are incurred in almost every under insured motorist action, cover amounts paid in the past and those to be paid in the future.  Given the catastrophic nature of many of the cases that result in UMP Claims the costs are often considerable.  Had the Legislature intended for UMP awards to be net of these services and benefits then it would have specifically provided for such a deduction in clear and unambiguous terms in the legislation.
131.  Having regard to the nature and extent of the evidence tendered and to the overall statutory intention of Subsection 148.1(1) of the Regulations, I do not find the Hospital Insurance Program payments to be an applicable deductible amount pursuant to paragraph (i).  As stated above, had the Legislature intended such potentially considerable deductions to come into play it would most certainly have specifically stated so.
132.  If I am wrong about the above, I still find having regard to the wording of subsection (i), that such amounts would not be payable to the insured as a benefit or right and claim to indemnity.  They do not represent pecuniary payments of a like nature for which the Claimant is claiming compensation pursuant to the tortious conduct of the underinsured motorist and which would have been recovered thus resulting in double recovery.
This case is also worth reviewing for some of the other finding made with respect to deductible beneifts.  The Claimant’s husband died in the same collision and as a result the Claimant received some modest compensation through a Family Compensation Act action and through varioius insurance benefits.  Arbitrator Boskovich made the following findings with respect to other deductible amounts:
1.  If a Claimant received damages under the Family Compensation Act from the collision in question then those can be deductible in an UMP Claim even if underlying action dealt exclusively with the Claimant’s personal tort claim.
2.  ICBC Part 7 Death Benefits paid from the deceased’s Part 7 benefits to the Claimant are deductible in an UMP Claim.
3.  A CPP Death Benefit paid directly to the claimant is deductible in an UMP claim.
4.  CPP and private survivor’s pension benefits are deductible in an UMP claim with the limitation that these deductions should be calculated on the basis of the natural life expectancy of the claimant.

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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.

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