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Tag: Section 148.1(1) Insurance (Vehicle) Regulation

FCA and Tort Claim Limits Under ICBC's Underinsured Motorist Protection

Written by admin on . Posted in ICBC UMP Cases, Uncategorized.


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.

More on ICBC UMP Deductions: Costs, Disbursements and MSP Payments

Written by admin on . Posted in ICBC UMP Cases. 65 Comments on More on ICBC UMP Deductions: Costs, Disbursements and MSP Payments

In my on-going efforts to create a searchable UMP Claims Database, reasons for judgement were recently released addressing the deductibility of previous payments for Costs, Disbursements and ICBC paid MSP treatments in an UMP proceeding.  In short the MSP payments were found to be deductible under UMP while the costs and disbursements payments were not.

In the recent case (X v. ICBC) the Claimant was a personal injury lawyer.  He was involved in a 2004 collision.  He initially sued for damages.  The lawsuit was disposed of for payment of the underinsured defendant’s policy limits of $200,000 plus costs and disbursements with the parties agreeing have the value of the claim being privately arbitrated.

The Claimant alleged that he suffered a mild traumatic brain injury and sought damages “well over $1 million“.  This claim was largely rejected with the arbitrator assessing damages at just over $276,000.  The parties agreed that the $200,000 previous payment was deductible but could not agree whether the additional $22,575 ICBC paid for costs and disbursements were deductible from the UMP assessment.  Arbitrator Boskovich held that it was not and provided the following reasons:

538.  The codified applicable deductible amounts are very clear and not one of them contemplates a deduction for the costs and disbursements associated with a payment made:

  • pursuant to Section 20 or Section 24;
  • paid or payable under a Part VII;
  • paid by the underinsured motorist as damages;
  • paid or payable under a certificate, policy or plan of insurance providing third party legal liability indemnity to the underinsured motorist;
  • paid or payable under vehicle insurance, wherever issued and in effect, providing undersinsured motorist protection for the same occurrence for which the underinsured motorist for protection is provided under this section;
  • paid or payable to the insured under any benefit or right or claim to indemnity; and
  • paid or able to be paid by any other person who is legally liable for the insured’s damages.

539.  On their own, the costs and disbursements paid do not fall under a payment of any “benefit or right or claim to indemnity”.

540.  I do not find the $23,575.17 paid by the Respondent for the costs and disbursements associated with the underlying tort claim to be an applicable deductible amount pursuant to the UMP Regulation.

ICBC went on to argue that the MSP payments they made under the Claimant’s Part 7 Benefit plan were deductible from the damage assessment.  Arbitrator Boskovich agreed and provided the following reasons:

544.  The payments made by ICBC to the Medical Services Plan of British Columbia for the various medical visits listed are payments made pursuant to Part VII as medical benefits and are a codified applicable deductible amount pursuant to Section 148.1(1)(c).  There will be a deduction of $551.36 for these payments.