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Difference between revisions of "Optional ICBC Insurance (12:XI)"
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Optional ICBC Insurance (12:XI) (view source)
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==== i) Dispute Resolution and Appeals Process ==== | ==== i) Dispute Resolution and Appeals Process ==== | ||
The Lieutenant Governor in Council may make regulations respecting mediation or arbitration including, without limitation, regulations providing to a party to a vehicle action the ability to require the parties to engage in mediation or arbitration and setting out when and how that ability may be exercised and prescribing any other results that flow from the exercise of that ability (IVA, s 96). | The Lieutenant Governor in Council may make regulations respecting mediation or arbitration including, without limitation, regulations providing to a party to a vehicle action the ability to require the parties to engage in mediation or arbitration and setting out when and how that ability may be exercised and prescribing any other results that flow from the exercise of that ability (''IVA'', s 96). | ||
===== (1) How Decisions Regarding Liability are Made ===== | ===== (1) How Decisions Regarding Liability are Made ===== | ||
Disputes frequently arise when the vehicle of a person insured by ICBC is damaged by another insured person. In that situation, an adjuster will decide the degree of fault between the two parties. The adjuster’s decision is based on traffic regulations, and the rules of negligence, with the party in contravention of the MVA generally being found at fault. If both parties have contravened some regulation, however, a 50-50 assessment is often made. This is also the case when there are no independent witnesses. | Disputes frequently arise when the vehicle of a person insured by ICBC is damaged by another insured person. In that situation, an adjuster will decide the degree of fault between the two parties. The adjuster’s decision is based on traffic regulations, and the rules of negligence, with the party in contravention of the ''MVA'' generally being found at fault. If both parties have contravened some regulation, however, a 50-50 assessment is often made. This is also the case when there are no independent witnesses. | ||
===== (2) Appeal Process: Two Routes ===== | ===== (2) Appeal Process: Two Routes ===== | ||
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If a client is dissatisfied with an adjuster’s decision, there are two available courses of action: | If a client is dissatisfied with an adjuster’s decision, there are two available courses of action: | ||
*a) the client can go through ICBC’s internal appeal procedure by asking the adjuster to review his or her decision and, if there is no change, by asking the claims manager to review it. If the client is still not satisfied, the third step is to present the client’s case to an appeal panel; or | *a) the client can go through ICBC’s internal appeal procedure by asking the adjuster to review his or her decision and, if there is no change, by asking the claims manager to review it. If the client is still not satisfied, the third step is to present the client’s case to an appeal panel; or | ||
*b) the client can sue. This is commonly the most satisfactory course, particularly where the amount in issue is relatively small, as where the damage is about the same amount as the “deductible”. Such an action is not brought against ICBC under the policy, but against the driver (and owner, MVA, s 86) whose negligence is said to have caused the accident. In such a case, that ICBC was not liable to pay the “deductible” to its own insured does not relieve the negligent party from liability, assuming always that negligence can be established. | *b) the client can sue. This is commonly the most satisfactory course, particularly where the amount in issue is relatively small, as where the damage is about the same amount as the “deductible”. Such an action is not brought against ICBC under the policy, but against the driver (and owner, ''MVA'', s 86) whose negligence is said to have caused the accident. In such a case, that ICBC was not liable to pay the “deductible” to its own insured does not relieve the negligent party from liability, assuming always that negligence can be established. | ||
There are two ways in which to frame the action. The plaintiff can either claim the total amount of damage resulting from the negligence, even though ICBC has already paid a portion of it, or the plaintiff can claim merely the amount that ICBC has not paid. Remember, however, that a plaintiff cannot collect twice, and if he or she sues for more than the deductible, he or she may be held to be acting as a trustee for the Corporation and therefore liable to account for anything in excess of the deductible. In either case, the plaintiff bears the onus of proving the negligence alleged against the defendant. | There are two ways in which to frame the action. The plaintiff can either claim the total amount of damage resulting from the negligence, even though ICBC has already paid a portion of it, or the plaintiff can claim merely the amount that ICBC has not paid. Remember, however, that a plaintiff cannot collect twice, and if he or she sues for more than the deductible, he or she may be held to be acting as a trustee for the Corporation and therefore liable to account for anything in excess of the deductible. In either case, the plaintiff bears the onus of proving the negligence alleged against the defendant. | ||
:'''NOTE:''' If ICBC denied liability to indemnify a person insured by it and that person is sued, ICBC is entitled to apply to the court to be joined as a third party (IVA, s 77(3)). Upon being made a third party, ICBC can then defend the action fully, despite its previous denial of liability to indemnify the defendant (IVA, s 77(4)). In ''West v Cotton'' (1994), 98 BCL R (2d) 50 (SC), the third party, ICBC, conducted the defence of a defendant to whom it denied coverage and who did not participate in the proceedings. Having succeeded in proving his claims, the plaintiff was not entitled to recover his or her costs, with one exception: that being against the third party. In this case, ICBC would have suffered significant prejudice if it had been precluded from presenting its defences as third party since the defendant did not demonstrate any interest in maintaining the action. | :'''NOTE:''' If ICBC denied liability to indemnify a person insured by it and that person is sued, ICBC is entitled to apply to the court to be joined as a third party (''IVA'', s 77(3)). Upon being made a third party, ICBC can then defend the action fully, despite its previous denial of liability to indemnify the defendant (''IVA'', s 77(4)). In ''West v Cotton'' (1994), 98 BCL R (2d) 50 (SC), the third party, ICBC, conducted the defence of a defendant to whom it denied coverage and who did not participate in the proceedings. Having succeeded in proving his claims, the plaintiff was not entitled to recover his or her costs, with one exception: that being against the third party. In this case, ICBC would have suffered significant prejudice if it had been precluded from presenting its defences as third party since the defendant did not demonstrate any interest in maintaining the action. | ||
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