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Difference between revisions of "ICBC and Compulsory Coverage (12:X)"
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ICBC and Compulsory Coverage (12:X) (view source)
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<blockquote> b) the insured is an “employed person” (''IVR'', s 80). </blockquote> | <blockquote> b) the insured is an “employed person” (''IVR'', s 80). </blockquote> | ||
An “employed person” is defined in s 78 of the ''IVR'' as a person who, on the day of the accident or for any 6 months during the previous 12 months immediately preceding the accident, is employed or actively engaged in an occupation for wages or profit. Eligible insured persons who are completely unable to engage in employment can collect either 75 percent of their average gross weekly earnings or $300 per week, whichever is less, for the length of the disability or 104 weeks, whichever is shorter. See section 80 and Schedule 3 of the ''IVR'' for more details. | An “employed person” is defined in s 78 of the ''IVR'' as a person who, on the day of the accident or for any 6 months during the previous 12 months immediately preceding the accident, is employed or actively engaged in an occupation for wages or profit. Eligible insured persons who are completely unable to engage in employment can collect either 75 percent of their average gross weekly earnings or $300 per week, whichever is less, for the length of the disability or 104 weeks, whichever is shorter. See section 80 and Schedule 3, s 2(a) of the ''IVR'' for more details. Starting April 1, 2019, this amount will be increased to $740 per week. | ||
'''NOTE''': There is a waiting period of seven days before disability benefits are paid out. Also, no benefits are paid for these initial seven days (''IVR'', s 85). | '''NOTE''': There is a waiting period of seven days before disability benefits are paid out. Also, no benefits are paid for these initial seven days (''IVR'', s 85). | ||
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b) $5,000 if the deceased was a “head of a household” (i.e. was providing the “major portion” of household income), plus a Supplemental Death benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first survivor and $35 per week for each additional survivor for a duration of 104 weeks (see s 92 of the ''IVR''); | b) $5,000 if the deceased was a “head of a household” (i.e. was providing the “major portion” of household income), plus a Supplemental Death benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first survivor and $35 per week for each additional survivor for a duration of 104 weeks (see s 92 of the ''IVR''); | ||
c) $2,500 if the deceased was a “spouse in household” (i.e. was supporting the household or helping to raise dependent children), plus a Supplemental Death benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first survivor and $35 per week for each additional survivor for a duration of 104 weeks (see s | c) $2,500 if the deceased was a “spouse in household” (i.e. was supporting the household or helping to raise dependent children), plus a Supplemental Death benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first survivor and $35 per week for each additional survivor for a duration of 104 weeks (see s 92 of the ''IVR'').</blockquote> | ||
'''NOTE''': | '''NOTE''': | ||
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The ''FCA'' provides a statutory scheme for fatal accident compensation that abrogated the common law rule that no one has a cause of action in tort against a person who has wrongfully caused the death of a third person (see [http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc1168/2013bcsc1168.html?autocompleteStr=mcleod%20v%20ga&autocompletePos=5 ''Gaida Estate v McLeod''], 2013 BCSC 1168 (CanLII)). | The ''FCA'' provides a statutory scheme for fatal accident compensation that abrogated the common law rule that no one has a cause of action in tort against a person who has wrongfully caused the death of a third person (see [http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc1168/2013bcsc1168.html?autocompleteStr=mcleod%20v%20ga&autocompletePos=5 ''Gaida Estate v McLeod''], 2013 BCSC 1168 (CanLII)). | ||
The ''FCA'' intends to place the claimant in the same economic position that | The ''FCA'' intends to place the claimant in the same economic position that they would have enjoyed but for the death of their spouse, parent or child. There are only a limited number of family members that would be eligible for compensation under the ''FCA'', and the definition of who qualifies for compensation is important. The starting point to determine eligibility for bringing a claim begins with section 1 of the ''FCA''. | ||
Compensation under the ''FCA'' is generally limited to the following: | Compensation under the ''FCA'' is generally limited to the following: | ||
# damages for loss of love, guidance and affection (generally for infant children of the deceased only); | # damages for loss of love, guidance and affection (generally for infant children of the deceased only); | ||
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Claimants should check the ''IVR'' carefully to find what restrictions are applicable to a given claim for benefits. The following is merely a brief summary of some very complicated provisions. Generally, ICBC is not liable to pay any of the benefits discussed above, in any of the following situations: | Claimants should check the ''IVR'' carefully to find what restrictions are applicable to a given claim for benefits. The following is merely a brief summary of some very complicated provisions. Generally, ICBC is not liable to pay any of the benefits discussed above, in any of the following situations: | ||
*if the applicant resides outside BC '''and''' the vehicle in which | *if the applicant resides outside BC '''and''' the vehicle in which they were riding or driving at the material time was not designated in an owner’s certificate (s 96(a)); | ||
*if the applicant at the time of the accident was an occupant of, or was struck by, a vehicle that could not be licensed under the ''MVA'' or ''Commercial Transport Act'' (s 96(b)(i)); | *if the applicant at the time of the accident was an occupant of, or was struck by, a vehicle that could not be licensed under the ''MVA'' or ''Commercial Transport Act'' (s 96(b)(i)); | ||
*if the death or injury resulted from the injured person’s suicide or attempted suicide, whether “sane or insane” (s 96(c)); | *if the death or injury resulted from the injured person’s suicide or attempted suicide, whether “sane or insane” (s 96(c)); | ||
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*if the death or injury is a result of the applicant's medical condition, as distinct from an injury caused by the accident, unless the condition was itself a direct result of an accident for which benefits are provided under Part 7 of the ''IVR'' (s 96(f)). | *if the death or injury is a result of the applicant's medical condition, as distinct from an injury caused by the accident, unless the condition was itself a direct result of an accident for which benefits are provided under Part 7 of the ''IVR'' (s 96(f)). | ||
Also, under s 90 of the ''IVR'', ICBC may terminate an insured’s benefits if | Also, under s 90 of the ''IVR'', ICBC may terminate an insured’s benefits if the insured refuses to undergo any: | ||
*medical, surgical, or other similar treatment, which, in the opinion of the ICBC medical adviser and the medical practitioner attending the insured, is likely to relieve, wholly or partly, the insured’s disability; or | *medical, surgical, or other similar treatment, which, in the opinion of the ICBC medical adviser and the medical practitioner attending the insured, is likely to relieve, wholly or partly, the insured’s disability; or | ||
*retraining or educational program likely to assist in the insured’s rehabilitation. | *retraining or educational program likely to assist in the insured’s rehabilitation. | ||
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*the action must be started by the later of the following: | *the action must be started by the later of the following: | ||
<blockquote> <blockquote> a) with '''three months''' after the date of the response from ICBC; | <blockquote> <blockquote> a) with '''three months''' after the date of the response from ICBC; | ||
b) within '''two years''' after the date of the accident for which the benefits are claimed; | b) within '''two years''' after the date of the accident for which the benefits are claimed; | ||
c) where benefits have been paid, with two years after the date the insured last received a payment. </blockquote> </blockquote> | c) where benefits have been paid, with two years after the date the insured last received a payment. </blockquote> </blockquote> | ||
*These limitation periods also apply to minors. In other words, the limitation date for Part 7 actions for minors does not commence at age 19 but commences on the date of the accident. | *These limitation periods also apply to minors. In other words, the limitation date for Part 7 actions for minors does not commence at age 19 but commences on the date of the accident. | ||
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=== 1. Claims Against Uninsured Vehicles: Section 20 of the ''IVA'' === | === 1. Claims Against Uninsured Vehicles: Section 20 of the ''IVA'' === | ||
While it is against the law, there are some drivers who operate motor vehicles without any insurance. If a claimant suffers damages from an uninsured motorist, | While it is against the law, there are some drivers who operate motor vehicles without any insurance. If a claimant suffers damages from an uninsured motorist, they are not without a remedy. Instead, the claimant may make a claim to ICBC for compensation. | ||
==== a) Definition of Uninsured Vehicle ==== | ==== a) Definition of Uninsured Vehicle ==== | ||
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ICBC has the authority to settle or consent to judgement, at any time, in the name of the uninsured defendant. But, if the defendant responds within the time limit indicated in the notice, then ICBC is not entitled to recover from the defendant without a judgment (s 20(5)). | ICBC has the authority to settle or consent to judgement, at any time, in the name of the uninsured defendant. But, if the defendant responds within the time limit indicated in the notice, then ICBC is not entitled to recover from the defendant without a judgment (s 20(5)). | ||
If the claimant serves the uninsured defendant directly and | If the claimant serves the uninsured defendant directly and they do not enter an appearance or does not file a Response to Civil Claim, or does not appear at trial, or does anything that permits default judgment to be taken against them, then ICBC may intervene. ICBC can defend the action in the name of the defendant. ICBC’s acts are deemed to be the defendant’s acts (''IVA'', s 20(7)). | ||
==== d) ICBC Liability Limited ==== | ==== d) ICBC Liability Limited ==== | ||
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=== 2. Claims Against Unidentified or Hit and Run Motorists: Section 24 of the ''IVA'' === | === 2. Claims Against Unidentified or Hit and Run Motorists: Section 24 of the ''IVA'' === | ||
Where personal injury, death, or property damage | Where personal injury, death, or property damage arises out of the use of a vehicle on a road '''in British Columbia''' and the identity of the driver and owner cannot be ascertained (or the ascertained owner is not liable, as would be the case if the vehicle had been stolen), the injured party may sue ICBC as nominal defendant. For accidents occurring outside BC, see [[{{PAGENAME}}#1. Inverse Liability and Uninsured or Hit and Run Accidents Outside BC | Section X.E.1: Inverse Liability and Uninsured or Hit and Run Accidents Outside BC]]. | ||
==== a) Reasonable Efforts to Ascertain Identity ==== | ==== a) Reasonable Efforts to Ascertain Identity ==== | ||
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Section 147 of the ''IVR'' has its own definition of “insured”, which includes: | Section 147 of the ''IVR'' has its own definition of “insured”, which includes: | ||
<blockquote>(a) the person named as an owner in an owner's certificate or if deceased, | <blockquote>(a) the person named as an owner in an owner's certificate or if deceased, their personal representative; | ||
(b) a person who can provide written proof that | (b) a person who can provide written proof that they are the beneficial owner of a commercial vehicle described in an owner's certificate; or | ||
(c) the renter of a vehicle described in an owner's certificate. </blockquote> | (c) the renter of a vehicle described in an owner's certificate. </blockquote> | ||
===== (3) What is Covered? ===== | ===== (3) What is Covered? ===== | ||
“Loss or damage” in this section means damage to the vehicle and does not include compensation for medical or rehabilitation costs. Compensation is to the extent to which the insured would have recovered if | “Loss or damage” in this section means damage to the vehicle and does not include compensation for medical or rehabilitation costs. Compensation is to the extent to which the insured would have recovered if they had a right of action. In other words, ICBC will pay to the extent that the other driver is found liable (''IVR'', s 147). However, this amount is limited to the lesser of the cost of the vehicle repair, the declared value of the vehicle, or the actual cash value of the vehicle. | ||
===== (4) Dispute Resolution ===== | ===== (4) Dispute Resolution ===== | ||
If the insured is found to be at fault or partially at fault, | If the insured is found to be at fault or partially at fault, they will be responsible for paying for the remaining costs of repair to the vehicle, unless the insured person purchased collision coverage (see [[Optional ICBC Insurance (12:XI)#(2) Own Damage Coverage | Section XI.B.2.1: Collision]]). If a dispute between the claimant and ICBC arises under this section, it must be arbitrated. Once the arbitrator adjudicates the dispute, the reasons for the decision must be published. | ||
==== b) Section 148 Claims: Accidents in Nunavut, Yukon, Northwest Territories or the U.S.A. ==== | ==== b) Section 148 Claims: Accidents in Nunavut, Yukon, Northwest Territories or the U.S.A. ==== | ||
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*must not settle a claim without the written consent of ICBC | *must not settle a claim without the written consent of ICBC | ||
Under s 148(5) of the ''IVR'', the insured (or | Under s 148(5) of the ''IVR'', the insured (or their representative) must: | ||
*for accidents involving an '''unidentified''' vehicle, report the accident, within 24 hours of the accident, to the police, or the administrator of any law respecting motor vehicles; | *for accidents involving an '''unidentified''' vehicle, report the accident, within 24 hours of the accident, to the police, or the administrator of any law respecting motor vehicles; | ||
*file with ICBC, within 28 days of the accident, a statement under oath that: a) the insured has a cause of action arising out of the accident against the owner or driver of an '''unidentified or uninsured''' vehicle and b) setting out the facts in support of that statement; '''and''' | *file with ICBC, within 28 days of the accident, a statement under oath that: a) the insured has a cause of action arising out of the accident against the owner or driver of an '''unidentified or uninsured''' vehicle and b) setting out the facts in support of that statement; '''and''' | ||
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If an insured is making a claim for UMP coverage in the relation to a '''hit and run''' accident, there are additional requirements that need to be met. Under section 148.1(4), the following criteria must also be met: | If an insured is making a claim for UMP coverage in the relation to a '''hit and run''' accident, there are additional requirements that need to be met. Under section 148.1(4), the following criteria must also be met: | ||
*the accident must occur on a highway; and | *the accident must occur on a highway; and | ||
*the accident must have '''physical''' contact between the insured vehicle and the unidentified vehicle, '''if''' it occurred in the Yukon, Northwest Territories, or | *the accident must have '''physical''' contact between the insured vehicle and the unidentified vehicle, '''if''' it occurred in Nunavut, the Yukon Territory, the Northwest Territories, or the United States. | ||
==== c) Who Is Covered? ==== | ==== c) Who Is Covered? ==== | ||
Section 148.1 of the ''IVR'' has its own definition of “insured”. Note that the insured need not be in | Section 148.1 of the ''IVR'' has its own definition of “insured”. Note that the insured need not be in their car to be eligible for compensation. Under this section, “insured” includes, but is not limited to: | ||
*a person named in the owner’s certificate and members of | *a person named in the owner’s certificate and members of their household; | ||
*any person who is an occupant of the insured vehicle; | *any person who is an occupant of the insured vehicle; | ||
*any person with a valid BC “driver’s certificate” (i.e. driver’s license) and members of | *any person with a valid BC “driver’s certificate” (i.e. driver’s license) and members of their household; and | ||
*any person entitled, in the jurisdiction in which the accident occurred, to maintain an action against the underinsured motorist for damages because of the death of one of the insured. | *any person entitled, in the jurisdiction in which the accident occurred, to maintain an action against the underinsured motorist for damages because of the death of one of the insured. | ||
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==== e) UMP Coverage and Accidents Outside B.C. ==== | ==== e) UMP Coverage and Accidents Outside B.C. ==== | ||
For accidents occurring outside BC, the '''law of the accident occurred determines the legal liability of an underinsured motorist''', whereas the '''amount''' of the UMP claim is determined by BC law. See section 148.2(6) of the ''IVR''. | For accidents occurring outside BC, the '''law of the place where the accident occurred determines the legal liability of an underinsured motorist''', whereas the '''amount''' of the UMP claim is determined by BC law. See section 148.2(6) of the ''IVR''. | ||
UMP protection does not apply in a jurisdiction where the right to sue for injuries caused by a vehicle accident is barred by law (''IVR'', s 148.2(4)). UMP coverage does not apply to vehicles used as buses, taxis, or limousines (s 148.4). | UMP protection does not apply in a jurisdiction where the right to sue for injuries caused by a vehicle accident is barred by law (''IVR'', s 148.2(4)). UMP coverage does not apply to vehicles used as buses, taxis, or limousines (s 148.4). | ||
