Tag: X v. ICBC

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.