Defending an ICBC Settlement Award

HOM recently obtained a jury award of $331,000 in damages for a client following a motor vehicle accident (“MVA”), and then defended against ICBC’s attempt to reduce this award.

First some background…

Generally, anyone injured in a MVA in British Columbia, or any B.C. resident injured in an MVA in North America, is entitled to insurance coverage from ICBC for their necessary medical treatment, regardless of fault. Because this right flows from the operation of Part 7 of the Insurance (Vehicle) Regulations, they are often referred to as “Part 7 Benefits”.

When the other party is at fault for your accident, you can also claim compensation for your “Damages” such as Past Wage Loss, Future Wage Loss, General Pain and Suffering, Special Damages and Cost of Future Care. Unlike Part 7 Benefits, your right to such damages do not flow from any statute but from the common law of negligence.

Due to their new policy, ICBC now tries to deduct an amount equivalent to your future Part 7 Benefits from your proven Cost of Future Care damages, which has the effect of reducing your overall compensation of damages. ICBC’s new policy was highlighted (and thwarted) in a case we did recently, Sivertson v. Griffin, 2020 BCSC 528.

ICBC’s unsuccessful attempt to reduce our client’s $331,000 Damages award…

Following our client’s successful jury trial, HOM was able to avoid ICBC’s attempt to reduce our client’s $331,000 damage award. Specifically, we argued that our client’s damage award should not be reduced because ICBC had failed to meet its burden to establish our client’s entitlement to future Part 7 Benefits, which it was required to do by law. On the contrary, the nature of our client’s injuries and prognosis, ICBC’s residual discretion to provide Part 7 Benefits, and the jury’s verdict following trial, all made it particularly difficult in our client’s case to determine what Part 7 Benefits she would be entitled to receive and therefore deduct from her damage award.

The nature of our client’s injuries, we argued, were such that it was difficult to know now what medical treatment she would require, or when. In fact, her medical evidence and experts showed that the MVA and resultant injuries made her more vulnerable to further head injury, exacerbation of mental deficits, and less resistant to major life stressors.

Second, we argued that virtually all of the future treatments our client may require were classified as discretionary and not mandatory Part 7 Benefits under the Insurance (Vehicle) Regulations, making ICBC provision of them to our client particularly uncertain. Indeed, our client (and the court) could not rely on ICBC’s provision of these benefits, given ICBC’s past refusal of various benefits before trial, and its arguments against them at the jury trial.

Third, our client’s entitlement to Part 7 Benefits was also uncertain because of the nature of the jury’s verdict following the jury trial. The jury, in its verdict, did not specifically delineate the award and did not break down its Special Damages and Cost of Future Care awards by treatment, expense incurred or classes of treatments received or to be received by our client in the future. Moreover, ICBC’s attempt to ascertain the costs of future care according to various treatments was unhelpful as it was arbitrary and ultimately unlikely to align with our client’s actual future treatment needs.

In the result, the Judge agreed that ICBC failed to discharge its burden to prove that our client had any entitlement to Part 7 Benefits respecting the loss on which the jury determined her claim was based.

Accordingly, the Judge refused to reduce our client’s $331,000 damages award in any way.

The Judge’s decision, Sivertson v. Griffin, 2020 BCSC 528, which other Judges have since followed, can be found HERE.

As a result of obtaining a damage award from the jury larger than our client’s formal offer to settle, the client was also awarded double costs (legal fees based on a tariff), including those required to defend against ICBC’s attempts to reduce her $331,000 damages award.

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If you have been involved in a catastrophic Motor Vehicle Accident, do not hesitate to contact HOM at 250-360-2500.

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