Difference between revisions of "Introduction to ICBC's Autoplan Insurance System (Prior System) (12:VIII)"

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{{REVIEWED LSLAP | date= August 6, 2024}}
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{{LSLAP 12 Old System Notice}}
{{LSLAP 12 Old System Notice}}
'''This section applies only to claims for accidents that occurred on or before April 30, 2021.'''
For accidents that occurred on or before April 30, 2021, the two-year limitation date, within which an action could be started, has now passed. This means that '''new claims cannot be started for accidents that occurred after that date'''. However, the following information is applicable to ongoing actions for accidents that occurred prior to April 30, 2021.


== A. General ==
== A. General ==


The automobile insurance system in BC is comprised of “no-fault” benefit claims and indemnification for claims in tort law.   
The automobile insurance system in BC is comprised of “no-fault” benefits and indemnification for claims in tort law.   


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”).  
No-fault benefits are included as part of the compulsory basic insurance coverage offered exclusively by ICBC and are paid to the insured regardless of fault. Extended coverage may be purchased from either ICBC or a private insurer under an optional insurance contract (“OIC”).  


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.
Claims for damages (under tort law) through the court system, 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 various parties liable for the injury. There is no legislative limitation on the amount of damages that a court could award; however, case law and statute may limit certain heads of damage. 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.
   
   
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 [[Claims Involving Out-of-province Insurers or Accidents (12:XIII)|Section XIII]].  
Determining whether a case can be commenced in BC and if the law of BC applies is crucial. 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 substantive issues, the laws of the jurisdiction where the accident took place apply. For procedural matters, the rules of the trial court apply.


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 ''IVA'' and the ''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.


=== 1. Indemnification ===
=== 1. Indemnification ===
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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 themselves (''IVA'', s 83).
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 themselves (''IVA'', s 83).
=== 3. Premiums and Point Penalties ===
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.
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.
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:
*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.
*Electronic Device tickets, which increases insurance rates on top of adding to the Driver Risk Premium
*Excessive Speeding tickets, which also increases insurance rates on top of adding to the Driver Risk Premium
*Driving While Prohibited charges
*Criminal Code driving convictions
These increased insurance rates would start on September 1, 2019.
=== 4. Waiver ===
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.
== B. Application of the Current Legislation, and Transitional Provisions ==
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).
Generally, it is safe to say that the ''IVA'' and the ''IVR'', taken as a whole, apply to:
*'''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;
*Optional '''insurance contracts''' that take effect on or after June 1, 2007;
*Any '''claims''' that arise under these insurance plans or contracts; and
*'''Insured persons''', and '''insurers''', and '''ICBC''' in relation to these insurance plans or contracts.
:'''NOTE''': The critical time to look at is the date on which the individual insurance policy or contract came into effect or was renewed.
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). 
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.
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.
== C. Seeking Legal Counsel for Your Claim==
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:
=== 1. Contingency Fees===
Contingency fees are variable; 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 for motor vehicle injuries, and the maximum permitted under the Law Society Rule 8-1 is 33 1/3% of the amount recovered.
=== 2. The Contingency Fee Contract===
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.
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.
=== 3. Disbursement Costs===
Disbursement costs are the expenses incurred for photocopying, medical reports, transcripts of evidence, police reports, motor vehicle searches, etc.  Law firms will often pay these costs for the claimant and collect them at the end of the lawsuit. Some law firms take a retainer fee for disbursements.
=== 4. Marshalling of Reports===
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.
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. This will require the claimant to draft a letter granting their lawyer signing authorization. – this letter should address who is receiving the authorization (in this case, the lawyer) and for what purpose, related issues, or kinds of documents (in this case, disclosures) the authorization is for.
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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Latest revision as of 17:46, 7 August 2024

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 6, 2024.
LSLAP Manual
LSLAP Manual
This page is from the
Law Students' Legal
Advice Program Manual.
See the full contents.
LSLAP Manual
Introduction
Chapters
12. Auto Insurance (ICBC)

 · II. Governing Legislation & Resources
 · III. Enhanced Care System
 · IV. Optional Insurance
 · V. Seeking Legal Counsel
 · VI. Disputes with ICBC
 · VII. When You Can Still Sue
 · VIII. ICBC's Previous Autoplan Insurance System
 · IX. Limitation on Experts

 · X. Compulsory Coverage
v • d • e



NOTE: The following portion of this chapter was written prior to April 30, 2021. Therefore, though it is written in the present tense, please be advised that it applies only to claims for accidents that occurred on or before April 30, 2021.

This section applies only to claims for accidents that occurred on or before April 30, 2021.

For accidents that occurred on or before April 30, 2021, the two-year limitation date, within which an action could be started, has now passed. This means that new claims cannot be started for accidents that occurred after that date. However, the following information is applicable to ongoing actions for accidents that occurred prior to April 30, 2021.

A. General

The automobile insurance system in BC is comprised of “no-fault” benefits and indemnification for claims in tort law.

No-fault benefits are included as part of the compulsory basic insurance coverage offered exclusively by ICBC and are paid to the insured regardless of fault. Extended coverage may be purchased from either ICBC or a private insurer under an optional insurance contract (“OIC”).

Claims for damages (under tort law) through the court system, 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 various parties liable for the injury. There is no legislative limitation on the amount of damages that a court could award; however, case law and statute may limit certain heads of damage. 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.

Determining whether a case can be commenced in BC and if the law of BC applies is crucial. 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 substantive issues, the laws of the jurisdiction where the accident took place apply. For procedural matters, the rules of the trial court apply.

The IVA and the 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.

1. Indemnification

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.

2. Subrogation

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 themselves (IVA, s 83).

v • d • e
 
Chapters 8-14
Employment Insurance  · Employment Law  · Creditors and Debtors  · Consumer Protection  · Auto Insurance (ICBC)  · Motor Vehicle Law  · Mental Health Law
Chapter Eight:
Employment Insurance
Chapter Nine:
Employment Law
Chapter Ten:
Creditors' Remedies and Debtors' Assistance
Chapter Eleven:
Consumer Protection
Chapter Twelve:
Auto Insurance (ICBC)
Chapter Thirteen:
Motor Vehicle Law
Chapter Fourteen:
Mental Health Law
© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.


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