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| | {{REVIEWED LSLAP | date= August 2, 2024}} |
| {{LSLAP Manual TOC|expanded = ICBC}} | | {{LSLAP Manual TOC|expanded = ICBC}} |
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| == A. General ==
| | As of May 1, 2021, ICBC switched to a primarily no-fault system, known as '''Enhanced Care'''. This represents one of the biggest changes to the ICBC insurance system since its inception. |
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| The automobile insurance system in BC is comprised of “no-fault” benefit claims and indemnification for claims in tort law.
| | Under the former ICBC system, claims were handled through a mix of litigation and no-fault benefits. Although certain benefits were awarded regardless of the fault of the parties, in other situations one party could negotiate for compensation related to various claims, like non-pecuniary damages and loss of future income. These claims were awarded based on fault for the Accident, and often a party would need to hire a lawyer and commence litigation in order to receive them. |
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| No-fault benefits are included as part of the basic (compulsory) insurance coverage offered by the Insurance Corporation of British Columbia (ICBC or “the Corporation”) exclusively. As the name implies, payment of the no-fault coverage is given regardless of whether any element of fault is attributed to the insured. Optional coverage above and beyond the basic coverage may be purchased from either ICBC or a private insurer under an optional insurance contract (“OIC”).
| | Under the new system, the vast majority of claims are handled on a no-fault basis, with some limited exceptions. The no-fault system means that insured parties will file a claim directly with ICBC and will be compensated for specific damages (like medical treatment and wage loss) directly by the insurer, regardless of whether or not they were at fault for the accident. They will no longer be compensated for more speculative damages like loss of future income or non-pecuniary damages. ICBC still internally assigns fault to the parties when assessing claims to determine changes to premiums, but fault does not need to be shown to access injury compensation. |
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| Claims for damages brought under tort law, however, do require the presence of a fault element on the part of the defendant to be successful. The victim of the accident (e.g. a personal injury claimant) may sue the other driver(s), the owner(s) of the insured car, the manufacturer(s), automobile shop(s), municipality, the insurer(s), or any other parties liable for the injury. Legislatively, there is no limitation on the maximum amount of damages that a court could award to a victim. However, case law and statute may effectively cap certain heads of damage, such as non-pecuniary damages. Where the necessary conditions are met, ICBC may indemnify the insured for all or part of the assessed liability. This means that where damages are awarded to a victim in an accident, ICBC will pay those damages instead of the party (i.e. the insured) who is at fault.
| | '''All claims for accidents occurring on or after May 1, 2021 are subject to the Enhanced Care system. Parts III - VII of this chapter outlines benefits under this new system'''. Please be aware that ICBC may make changes and clarifications to the system as it is implemented that are not reflected in this manual. |
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| It is important to determine whether the action is one that can be commenced in BC and whether the law of BC applies. For cases involving a BC resident who has been involved in an out-of-province accident, private international law rules will govern the action. Generally, for the substantive issues, the laws of the jurisdiction where the accident took place will apply. For procedural matters, the rules of the trial court will apply. A summary of out-of-province insurer qualifications, service procedures, and jurisdictional considerations is listed in '''[[ICBC Claims and Out-of-Province Insurers or Accidents (12:VI) | Section VI]]''', below.
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| The Insurance (Vehicle) Act [IVA] and the Insurance (Vehicle) Regulation [IVR] form a code governing most aspects of auto insurance in BC. This chapter is not meant to be a comprehensive summary of the IVA or IVR but rather is a guide to help people locate the relevant sections of the IVA and IVR that they are likely to encounter. A few preliminary concepts, which will be of use in understanding this chapter, are discussed immediately below. | | '''The new Enhanced Care system does not apply to claims for accidents that occurred on or before April 30, 2021. For claims that occurred before this date, please see Parts VIII onwards of this chapter''', which outlines the former system as it existed prior to the introduction of Enhanced Care. |
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| === 1. Indemnification ===
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| Drivers purchase car insurance to protect themselves in the event that they are found liable for damages. If the necessary preconditions are met, ICBC assumes liability for payment of benefits or damages to the claimant or victim of a car accident. Instead of the insured paying the damages claimed, the insurance company, “indemnifies” the insured.
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| === 2. Subrogation ===
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| Subrogation is a common feature of insurance contracts. When ICBC assumes liability for payment of benefits or damages of any kind on behalf of the insured, ICBC is ‘subrogated’ to the right of recovery that the insured had against any other person (IVA, s 84), i.e., ICBC has all remedies available to it that the insured person might have exercised by him or herself (IVA, s 83).
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| === 3. Premiums and Point Penalties ===
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| Premiums are regular payments made by the insured to ICBC. Premiums are based on where the insured lives, how the vehicle is used, the type of vehicle, and the insured driver’s claim record.
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| The point penalty system is authorized by sections 210 and 211 of the Motor Vehicle Act [MVA]. Section 28.01 of the Motor Vehicle Act Regulations, BC Reg 26/58, outlines the various breaches and/or offences of the MVA and the corresponding point penalties recorded.
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| Starting June 10, 2019, any traffic ticket a driver gets will have the potential to increase their ICBC insurance rates. Traffic tickets will be broken down into two categories: high-risk tickets and regular traffic tickets. High-risk tickets include but may not be limited to:
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| • Impaired driving incidents, including a 24-Hour Prohibition from driving, a 3-day prohibition from driving, a 7-day prohibition from driving, a 30-day prohibition from driving, or a 90-day Immediate Roadside Prohibition or Administrative Driving Prohibition. The increased insurance rates for impaired driving incidents will also include any individuals who have criminal convictions for impaired driving, refusing to provide a breath sample. The individual will be required to pay increased insurance rates once the individual‘s mandatory driving prohibition is over.
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| • Electronic Device tickets, which increases insurance rates on top of adding to the Driver Risk Premium
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| • Excessive Speeding tickets, which also increases insurance rates on top of adding to the Driver Risk Premium
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| • Driving While Prohibited charges
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| • Criminal Code driving convictions
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| These increased insurance rates would start on September 1, 2019.
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| === 4. Waiver ===
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| Section 85 of the IVA allows ICBC to waive a term or condition of an insurance contract (also known as “the plan”). However, in order for a term or condition to be waived, the waiver must be in writing and signed by an ICBC officer.
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| == B. Application of the Current Legislation, and Transitional Provisions ==
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| On June 1, 2007, the IVA and accompanying IVR were amended. Transitional provisions in Parts 1, 4, and 5 of the IVA dictate which regime, old or new, will apply to a particular claim (ss 1.2, 58, and 74 respectively).
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| Generally, it is safe to say that the IVA and the IVR, taken as a whole, apply to:
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| *Insurance policies under the universal compulsory vehicle insurance plan set out by the Act (the “plan”) that take effect on or after June 1, 2007;
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| *Optional insurance contracts that take effect on or after June 1, 2007;
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| *Any claims that arise under these insurance plans or contracts; and
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| *Insured persons, and insurers, and ICBC in relation to these insurance plans or contracts.
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| :'''NOTE:''' TThe critical time to look at is the date on which the individual insurance policy or contract came into effect, or was renewed.
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| Claims and parties to the claims in relation to an insurance policy that came into effect before June 1, 2007 will continue to be governed by the old IMVA and IMVAR. It is entirely possible for a single accident to trigger the operation of both the old and new Acts simultaneously, (albeit in relation to different aspects of the resultant legal issues).
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| Although the IVA and IVR cover both ICBC and private insurer plans, some parts of the Act and Regulation apply only to one or the other. Specifically, the parts of the Act and Regulation that govern ICBC are Parts 1, 5, and 6 of the Act and Parts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, and 14 of the Regulation. The parts of the Act and the Regulation that govern the private insurers are Parts 4, 5, and 6 of the Act and Parts 13 and 14 of the Regulation.
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| Furthermore, the IVA and IVR apply to both universal mandatory coverage and optional coverage. Part 1 of the IVA applies to ICBC’s mandatory coverage only. Part 4 of the IVA applies to optional coverage. Parts 5 and 6 of the IVA apply to both mandatory coverage and optional coverage.
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| == C. Seeking Legal Counsel for Your Claim==
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| Most personal injury lawyers will take motor vehicle accident claims on a contingency basis (a percentage of the total sum recovered) and offer a free consultation. Since this means that there is usually no cost barrier, it is often wise to at least consult a lawyer to ensure that you will receive the amount to which you are entitled. Here are a few things to be aware of when consulting a lawyer for your claim:
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| === 1. Contingency Fees===
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| Contingency fees usually range between 20 percent and 25 percent if the case is settled before trial, and 33 percent if the case goes to trial. Some lawyers use a sliding scale, so that the fee increases as the trial date approaches. The Law Society of British Columbia imposes limits on contingency fees, and the claimant is unlikely to encounter lawyers who charge more than 33 percent.
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| === 2. The Contingency Fee Contract===
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| The contingency fee contract must be in writing and must contain a provision that it is the claimant’s right to have the contract reviewed by the Supreme Court for reasonableness.
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| Contingency fee contracts often provide that if the claimant discharges the lawyer, the claimant will have to pay an hourly rate for services up to the date of discharge and that these fees must be paid before the lawyer will transfer the file to another lawyer. A claimant who discharges a lawyer can have the lawyer’s bill reviewed by a Registrar of the Supreme Court in a hearing called an Assessment. The Registrar will make a ruling about the reasonableness of the bill and whether the claimant should be required to pay the bill right away.
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| === 3. Disbursement Costs===
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| Disbursement costs are the expenses incurred for photocopying, medical reports, transcripts of evidence, police reports, motor vehicle searches, etc. Most law firms will pay these costs for the claimant, and collect them at the end of the lawsuit.
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| === 4. Marshalling of Reports===
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| Over the course of the claim, the claimant’s lawyer will collect your medical records, typically for the period from 2 years before the motor vehicle accident to the period following the accident, and deliver them to the defence counsel. As a claimant in a personal injury action, it is important to be diligent in pursuing recommended medical treatment and visiting a family physician, as clinical medical records are typically only generated when a patient attends at an appointment. The lawyer for the claimant and for the defendant(s)/ICBC may also arrange for independent medical evaluations with specialized doctors over the course of the claim.
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| If there is a claim for loss of prospective earnings or cost of future care, the claimant’s lawyer may also collect and deliver economic briefs and reports by vocational specialists, accountants, actuaries, and other non-medical professionals.
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| The claimant’s lawyer will also receive defence reports and expert summaries. All of this goes on behind the scenes. Claimants wishing to have a more active role in their file should not hesitate to contact their lawyers for periodic updates.
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