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Tag: Varesi v. Cadelina

Can a Verbal Deal Create a Binding ICBC Claim Settlement?

When ICBC Tort and Part7 Claims are settled ICBC usually requires a ‘full and final release‘ to be signed as part of the deal.  There is a common misconception that individuals can simply refuse to sign the release if they get cold feet after negotiating a settlement.
There is, in fact, no legal requirement that an ICBC settlement be reduced to writing and a verbal discussion can create a bidning contract where a claimant gives up their right to sue.  This was discussed in reasons for judgement released today by the BC Supreme Court, Vancouver Regirstry,
In today’s case (Varesi v. Cadelina) the Plaintiff was injured in a 2008 motor vehicle collision.  The Plaintiff and Defendant were both insured with ICBC.   The Plaintiff dealt with ICBC directly and after some initial negotiations the Plaintiff advised as follows “I feel that my original request of $10,000 is still fair. Although my research on the CanLII website leads me to believe I may be entitled to a higher settlement, at this time I am still willing to settle the claim for this amount. I have consulted with a lawyer in regards to filing a writ but again would like to be able to reach a fair conclusion outside of the court system.
ICBC apparently responded that they accepted this offer and required the Plaintiff to submit receipts documenting her out of pocket expenses.  The Plaintiff had a different recollection stating that ICBC agreed to pay for her out of pocket expenses on top of the $10,000.  ICBC refused to do so arguing that they had a binding settlement.
The Plaintiff brought a lawsuit and in it’s early stages ICBC brought an application to have the lawsuit dismissed based on the alleged settlement.  Ultimately Mr. Justice McEwan dismissed ICBC’s application finding that the issue came down to credibility and it would need to be pursued at trial.  Mr. Justice McEwan provided the following reasons:

[25]         Where an oral contract is asserted and denied the case will generally come down to a contest of credibility. An example in the contest of an automobile insurance claim is Barclay v. Insurance Corp. of British Columbia, 2002 BCPC 15.

[26]         This is not a case of duress or unconscionability or undue influence. Depending on the evidence there may be an element of mistake. As the motion for summary judgment has been defended, the issue is whether there was a “meeting of the minds.”  The material is not at all decisive on that point, specifically as to the inclusion of the Part 7 benefits in the settlement. Mr. Boswell and the plaintiff differ on what was discussed, and such, if it remains an issue in the action when it is tried will have to be resolved on an assessment of credibility. Such an issue cannot be safely undertaken on the affidavit and documentary material before the court.

[27]         The defendants’ application for summary judgment on the alleged settlement contact is, therefore, dismissed, with leave to bring the issue on at trial, on a better evidentiary foundation, if the defendants consider it in their interests to do so.

While this case did not result in a dismissal based on the settlement discussions it demonstrates that a claimant can enter into a binding settlement even without signing a full and final release.  Settlements are based on ‘offers and acceptance’ and it is vital that a claim be valued properly prior to selling your right to sue.  You can access my archived posts discussing other legal issues involved in ICBC Settlements by clicking here.