Tag: ICBC Uninsured Motorist 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.
 

Employer Paid Sick Leave Benefits Non-Deductible in ICBC Uninsured Motorist Claim

(Update December 3, 2013 – the below decision was upheld in reasons for judgement released today by the BC Court of Appeal)
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Last year the BC Supreme Court found that employer paid wage replacement benefits are non-deductible in ICBC hit and run claims.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this issue in the context of an uninsured ICBC Claim.
In this week’s case (Jordan v. Lowe) the Plaintiff was injured by an uninsured motorist.  He successfully sued for damages.  When seeking to collect damages from ICBC pursuant to section 20 of the Insurance (Vehicle) Act ICBC argued they could deduct from the judgement the amount of sick leave benefits the Plaintiff collected from his employer.  Mr. Justice Willcock dismissed this argument finding these benefits did not have an element of insurance to them thereby not making them deductible   The Court provided the following reasons:
[20]         ICBC suggests the amendment to the Regulation, the addition of the words “compensation similar to benefits” to the definition of an insured claim, signalled the legislature’s intention to expand the definition.  I agree that must necessarily be so.  ICBC further suggests the expansion brought into the definition of an insured claim benefits that are not paid pursuant to insurance and the definition no longer necessarily imports an element of insurance.  With respect to the able submissions of counsel, I cannot agree.
[21]         When it enacted the most recent amendments to the Regulation, the legislature must be taken to have been aware of the judgment of the Court of Appeal in Lopez.  The conclusion in Lopez that the definition necessarily imports an element of insurance was founded upon the presence of the subheading to Regulation 106(1), “Exclusion of other insured loss”, and to the fact that the Regulation itself describes what are considered to be “insured claims”.  While the legislature has expanded the definition of what constitutes compensation or a benefit, it has not removed or varied the subheading of the Regulation in question and has not excluded from ICBC’s liability anything other than “insured claims”.
[22]         There was some discussion in Lopez with respect to what constitutes a “benefit” under the applicable section.  The amendment to the Regulation addresses that discussion and, in my view, may be applicable in some circumstances where there is some doubt with respect to what compensation in the nature of insurance is deductible.  It does not, however, remove or vary the requirement described in Lopez that the compensation must have an element of insurance to it.
[23]         For reasons set out in Loeppky, which I adopt and follow, I find payment of sick leave benefits to police officers employed by the City of Vancouver Police Department pursuant to their collective agreement do not have about them an element of insurance.  They are clearly benefits or compensation similar to benefits, but that alone does not suffice to cause them to fall within s. 103 of the Regulation.  ICBC is not entitled to deduct them from its liability to satisfy the plaintiff in relation to his claim against the designated defendant, Mr. Lowe.

ICBC Claims, Uninsured Motorists, and the Definition of "Highway"


Did you know that if you are injured in BC by a motorist who does not have any insurance at all you can still seek coverage of your tort claim directly from ICBC?  The reason you can do this is because of Section 20 of the Insurance (Vehicle) Act which requires ICBC to pay the damages directly when an uninsured motorist negligently injures others.
There are limits to ICBC’s liability under this section, and one such limitation is that the collision has to occur on a ‘highway‘.  If the crash does not occur on a ‘highway‘ then ICBC does not need to pay damages under section 20.  Reasons for judgement were released today by the BC Supreme Court, Prince George registry, dealing with exception.
In today’s case (Pierre v. Miller) the Plaintiff was injured in a motor vehicle collision.  The collision took place on Finlay Forest Service Road, a fairly remote road in British Columbia.   The Defendant was not insured and ICBC defended the case directly by the authority given to them under section 20 of the Insurance (Vehicle) Act.    ICBC’s lawyer brought a motion for a declaration that Finlay Forest Service Road is not a highway.
Mr. Justice Meiklem agreed with ICBC finding that the road was “a forest service road” and therefore not a highway and ordered that ICBC did not have to pay the Plaintiff anything for his injuries under section 20.
In reaching this conclusion the Court gave the following summary of the definition of “Highway” for the purpose of Uninsured Motorist Claims:

[3]             In order for ICBC to be liable to pay a claim under the provisions of the s. 20 of the IMV Act, the claim must arise out of the use or operation of a motor vehicle on a highway in British Columbia.  This follows from the definition of “claimant” and “uninsured motorist” in s. 20 of the IMV Act.  “Highway” is defined in the IMV Act as meaning a highway as defined in the Motor Vehicle Act, R.S.B.C. 1996. c. 318 (“MVA”).  The MVA definition of highway is:

“highway” includes

(a) every highway within the meaning of the Transportation Act,

(b) every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and

(c) every private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited,

but does not include an industrial road;

[4]             The MVA also defines “industrial road” as follows:

“industrial road” means industrial road as defined in the Industrial Roads Act, and includes a forest service road as defined in the Forest Act and land designated as a development road under section 8 (1) of the Petroleum and Natural Gas Act;

[5]             The definition of an industrial road in the Industrial Roads Act, R.S.B.C. 1996, c. 189 is not applicable in this case but the Forest Act, R.S.B.C. 1996, c. 157 definition of forest service road which is part of the definition of an industrial road in the MVA is in issue.  The Forest Act defines a “forest service road” as follows:

“forest service road” means a road on Crown land that

(a) is declared a forest service road under section 115 (5),

(b) is constructed or maintained by the minister under section 121,

(c) was a forest service road under this definition as it was immediately before the coming into force of this paragraph, or

(d) meets prescribed requirements;

[6]             The motor vehicle accident in this case occurred on a road known and marked as the Finlay Forest Service Road.  The applicant ICBC argues that the Finlay Forest Service Road falls within the Forest Act definition because it is declared to be a forest service road and because it was constructed or maintained by the Minister of Forests.  The respondent plaintiff argues that the Finlay Forest Service Road is a highway by way of public expenditure to which s. 42 of the Transportation Act, S.B.C. 2004, c. 44 applies and also because it is used by the general public for the passage of vehicles.  Alternatively the plaintiff argues that if the Finlay Forest Service Road is a forest service road it does not satisfy the definition under the IMV Act because it is a Community Use Forest Service Road rather than an Industrial Use Forest Service Road, it is not primarily for the transportation of natural resources or machinery materials or personal and it is not maintained by the Ministry of Forests and Range.

[7]             Another statutory provision of interest although not directly helpful in characterizing the Finlay Forest Service Road is s. 56 of the Transportation Act which enables the Lieutenant Governor and Council, with the consent of the Minister of Transportation and Highways and Minister of Forests and Range to order that a forest service road cease to be a forest service road and become an arterial highway or a rural highway.  There is no evidence that this has occurred in this case.

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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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