Tag: Section 49 Insurance (Vehicle) Regulation

ICBC Underinsured Motorist Claims: The "No Consent" Restriction

In my continued efforts to publicly summarize ICBC UMP Arbitration Decisions, reasons for judgement recently have been provided to me dealing with the restriction on ICBC UMP Coverage in circumstances where a vehicle occupant is injured through the negligence of a motorist who did not have the vehicle owner’s consent to operate.
In the unreported 2003 UMP Decision (D v. ICBC) the Claimant was injured in a 1998 collision.  He was the occupant of a vehicle driven by MV.   MV did not have the registered owner’s consent to operate the vehicle.  MV was given permission to drive by J who was the registered owner’s son.  J initially obtained the vehicle with the owner’s consent.  J did not have the owner’s permission to allow others to operate her vehicle.
The claims arising from the crash exceeded the damages available under section 20 of the Insurance (Vehicle) Act.  The Claimant applied to have his excess damages paid under his own Underinsured Motorist Protection coverage with ICBC.   ICBC argued that UMP coverage was forfeited because the Claimant was a passenger in a vehicle that he “knew or ought to have known was being operated without the consent of the owner” contrary to section 148.1(3)(b) of the Insurance (Vehicle) Regulation.
Arbitrator Yule agreed that given the facts of the case the Claimant should have known that consent was absent.  In finding the Claimant was not entitled to coverage Arbitrator Yule provided the following reasons:
28….Whether (the owner) consented, however, is a different question from the one raised in this case, namely whether a passenger such as Mr. D knew or ought to have known that (the owner) would not consent to the use of her vehicle in these circumstances.  There may well be circumstances in which an original borrower, who is aware of restrictions on the use of the borrowed vehicle put in place by the owner, allows another to drive without ever communicating those restrictions.  If there were nothing else about the surrounding circumstances to cause a driver or passenger to question the owner’s consent to the driver’s operation of the car, the driver and passenger would be entitled to full insurance protection.  A similar concept of reasonable belief by a driver i the consent of a vehicle owner applies in the extension of third party liability coverage under a driver’s certificate (Regulation s. 49(1)(c)) and under an owner’s certificate (Regulation, s. 65(1)(f))….The question is whether there is sufficient evidence from the totality of the circumstances such that, if he had considered the matter, a reasonable person in Mr. D’s circumstances ought to have known that (the owner) would not consent to the use of her vehicle int he circumstances prevailing the evening…
32…Where the vehicle is not stolen, and the original borrower remains in possession of and an occupant in the vehicle, and where constraints regarding use are known to the original borrower and not disclosed to others in the vehicle, the burden of establishing facts that a passenger ought to have known the owner would not consent should be onerous, even before taking into account that s. 148.1(3)(b) is an exclusion from coverage.
33.  In my view the Respondent has met the burden in this case…
The Reasons go on to highlight the specific facts indicating why a lack of consent should have been known in the circumstances.
This decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.  Also, if anyone has an UMP decision from prior to 2007 and you’d like to have it added to this database please don’t hesitate to contact me.

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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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