FCA and Tort Claim Limits Under ICBC's Underinsured Motorist Protection
An ICBC UMP decision has recently been provided to me dealing with the amount of coverage available under UMP when a claimant has the right to advance a tort claim and a Family Compensation Act claim arising from the same collision.
This decision was released well before the 2007 amendment requiring UMP Arbitration decisions to be published publicly on ICBC’s website. I summarize the decison to add it to this public and searchable UMP Claims Database.
In the 1996 case, (CCK v. ICBC) the Claimant was severely injured in a collision. She suffered a spinal cord injury rendering her a paraplegic. Her mother was killed in the same collision. The at-fault motorist was underinsured for all of the civil claims flowing from the crash. The Claimant was entitled to damages not only for her own injuries but also as a beneficiary under the Family Compensation Act for the death of her mother.
The arbitrator had to decide whether the Claimant could access $1 million in UMP Coverage in her tort claim along with an additional $1 million in coverage for her FCA claim or whether both claims were covered by a single limit. Arbitrator Schmitt provided the following reasons:
If CCK had been injured but had not lost her Mother, she would, of course, under section 148.1(2) be entitled to compensation under UMP coverage. In this case she was insured and she lost her Mother so she is an insured under not one but two of the definitions. What ICBC is arguing is that she is entitled to UMP coverage for her injuries and loss of her Mother but only under her own million dollars coverage…
In the case of CCK, she happens to be insured under two different definitions and she will be entitled to the benefits of her UMP coverage for both her claims up to the $1,000,000 limit…
The Mother’s estate is likewise entitled to the benefit of UMP coverage up to $1,000,000 but the Mother’s estate claims do not include the claims of survivors under the Family Compensation Act which belong specifically to those survivors…
The estate’s coverage is available to cover claims by the estate itself which may be advanced under the Estate Administration Act. Insofar as CCK or her grandmother may be entitled to receive some or all of the proceeds of the estate as a beneficiary they may directly benefit from such coverage. Otherwise CCK is entitled to the benefit of her own UMP coverage of $1 million with respect to her claim for personal injuries and her claim for damages under the Family Compensation Act.
This case should be contrasted with a subsequent Court of Appeal decision in 2007 (Lougheed v. Co-operators General Insurance Company) which upheld the following trial judgement reasons finding that the ‘insured‘ in an FCA claim brought following a collision is the personal representative of the estate of the deceased and that all beneficiaries of such an FCA claim are subject to the representative’s single policy limit:
[85] The issue, then, is how one ought to read the definition of “insured” in s. 148.1(1)(c), bearing in mind the scope of coverage granted by s. 148.1(2). But for his death, Mr. Lougheed would have received UMP coverage by operation of s. 148.1(1)(a). As a result of his death, the “insured” is “a person who…is entitled to maintain an action” because of Mr. Lougheed’s death. The “action” refers to the family compensation claim that may be commenced under the FCA by the personal representative on behalf of all of the beneficiaries, or by the beneficiaries if it is not commenced by the personal representative. In either case, however, the action must be treated as though it had been brought by the personal representative. It is a single cause of action brought on behalf of all of Mr. Lougheed’s beneficiaries.
[86] It follows, in my view, that the “insured” in s. 148.1(1)(c) must be the personal representative, who is the individual entitled, either directly or indirectly, to maintain a family compensation action as a result of the death of the primary insured, Mr. Lougheed. That interpretation is consistent with the grant of coverage provision, which limits the recovery of benefits to those otherwise accruing to the deceased insured.
[87] In the result, the UMP coverage limit is not $1 million for each beneficiary of a family compensation action, but $1 million for the beneficiaries of the action as a whole. The plaintiffs, all beneficiaries, are entitled collectively to the $1 million of UMP coverage that would otherwise have been available to the deceased, Mr. Lougheed.