Only Two Ways to Get to UMP
An important arbitration decision was released last year demonstrating that there are only two ways to get standing at an UMP arbitration proceeding; either with the consent of ICBC or by having an unsatisfied judgement against the tort feasor. The case also addresses the effects of a tort release in subsequent UMP proceedings and lastly the consent requirement under s. 148.2(4)(b) of the Insurance (Vehicle) Regulation finding that ICBC needs to demonstrate real prejudice to rely on this section.
In last year’s case (GG v. ICBC) the Claimant was injured in a Washington State motor vehicle collision. The at fault motorist had very low third party liability coverage and likely was underinsured for the circumstances. The Claimant had Underinsured Motorist Protection (UMP) with ICBC.
The Claimant sued in Washington State and the at fault motorist admitted liability. Since the Washington State court award would not be binding on ICBC regarding the value of the claim the Claimant sought ICBC’s permission to settle for policy limits and proceed to UMP arbitration to determine the value over and above this amount that would be payable. ICBC would not consent to this. The Claimant settled his claim and started an UMP proceeding. ICBC challenged this arguing the Claimant did not have standing to do so. Arbitrator Yule agreed finding there are only two ways to get standing in an UMP Claim. In dismissing the claim Arbitrator Yule provided the following reasons:
37. The essence of the dispute between the parties regarding the entitlement issue is whether there is a “third way” for a Claimant to establish the right to proceed to arbitration. ICBC says there are only two ways to establish that right, namely (1) an unsatisfied judgement against the tortfeasor or (2) the consent of ICBC. The Claimant says there is a third way, namely, by admissions of the tortfeasor, both as to fault for the accident (legal liability and legal entitlement) and as to an inability to satisfy any damages that may be awarded…The Claimant asserts that in this case compelling him to obtain judgement in the Washington State action is unfair, particularly having in mind the uselessness of an assessment of damages under Washington State law. I agree. However, in light of the legal authorities, I am constrained to conclude that the Claimant is not entitled to UMP compensation because he has not established the necessary prerequisites.
This finding was fatal in and of itself to the Claim, however, Arbitrator Yule also addressed the effects of a full and final release as against the tort-feasor. When the Claimant settled with the at fault driver the typical release was signed. Arbitrator Yule found that signing this release absent ICBC’s consent compromised the Claimant’s rights to an UMP Claim and provided the following reasons:
61. Accordingly, I am constrained to find that in the absence of the agreement of ICBC that the claimant may do so and still proceed to an arbitration of his UMP Claim, the entry of a Consent Dismissal Order in the Washington action and the provision of a Full and Final Release of SK mean that the claimant is no longer legally entitled to recover damages from SK and there is no “excess” damages that could be the subject of an UMP Claim. Hence, the claimant is not entitled to advance an UMP claim now.