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Difference between revisions of "ICBC and Personal Injury Claims (12:XII)"
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ICBC and Personal Injury Claims (12:XII) (view source)
Revision as of 00:07, 20 June 2016
, 00:07, 20 June 2016→J. Reaching a Settlement Before Trial
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=== 1. Negotiation === | === 1. Negotiation === | ||
Following the discovery, defence counsel will write a detailed reporting letter to the adjuster making recommendations about a settlement. The adjuster will present the defence counsel’s recommendations to ICBC, which may or may not accept them. Upon reply, defence counsel will inform the claimant’s counsel of ICBC's position. If the claimant is unwilling to settle, the claimant’s counsel may contact the adjuster and submit a counter-offer. This process will likely be repeated several times. These types of negotiations are expensive, time consuming, slow, and frustrating. | Following the discovery, defence counsel will write a detailed reporting letter to the adjuster making recommendations about a settlement. The adjuster will present the defence counsel’s recommendations to ICBC, which may or may not accept them. Upon reply, defence counsel will inform the claimant’s counsel of ICBC's position. If the claimant is unwilling to settle, the claimant’s counsel may contact the adjuster and submit a counter-offer. This process will likely be repeated several times. These types of negotiations are expensive, time consuming, slow, and frustrating. | ||
=== 2. Mediation === | |||
The Notice to Mediate is a new process by which any party to a motor vehicle action in Supreme Court may compel all other parties to the action to mediate the matters in dispute. Authority for the ''Notice to Mediate Regulation'', BC Reg 127/98 is contained in s 44.1 of the IA. The regulation came into force on April 14, 1998. The Notice to Mediate process does not provide a blanket mechanism to compel parties into mediation. Rather, this process provides institutional support for mediation in the context of motor vehicle actions. | |||
The party that wishes to initiate mediation delivers a Notice to Mediate to all other parties in the action. Within 10 days after the Notice has been delivered to all parties, the parties must jointly agree upon and appoint a mediator. The mediation must occur within 60 days of the mediator’s appointment, unless all parties agree in writing to a later date. If one party fails to comply with a provision of the Notice to Mediate Regulation, any of the other parties may file a Declaration of Default with the court. If this occurs, the court has a wide range of powers, such as staying the action until the defaulting party attends mediation, or making such orders as to costs that the court considers appropriate. | |||
The parties will share the cost of the mediator equally, unless the parties agree on some other cost sharing arrangement. The hourly rates of mediators vary, and this is a factor to be considered in selecting a mediator. The mediator will probably spend about one hour preparing for the mediation, and the mediation session will last about three hours. | |||
=== 3. ICBC’s Obligations to the Insured === | |||
ICBC has an obligation to protect the insured by making an effort to settle the claim in the limits of the amounts of coverage. Insurers are under an obligation to consider the interests of their insured in deciding whether to settle a claim. The insurer assumes by contract the power of deciding whether to settle and it must exercise that power in good faith. | |||
In ''Fredrikson v ICBC'' (1990), 44 BCLR (2d) 303 (S.C), Esson CJ. summarizes the law respecting the insurer’s duty to its insureds in certain areas discussed therein. In this particular case, ICBC acted in good faith, and in a fair and open manner, followed the course the insured wished to take. Among the points raised in the judgment are: i) the exclusive discretionary power of ICBC to settle liability claims places the insured at the mercy of the insurer ii) this vulnerability imposes duties on the insurer to act in good faith and deal fairly, and to not act contrary to the interests of the insured, or, at least, to fully advise the insured of its intention to do so; iii) the insurer’s duty to defend includes the obligation to defend by all lawful means the amount of any judgment awarded against the insured. | |||
See ''Shea v Manitoba Public Insurance Corporation'' (1991), 55 BCLR (2d) 15 (SC), per Finch J. | |||
=== 4. Formal Offers to Settle and Cost Consequences === | |||
Under Rule 9-1 of the Supreme Court Rules, a plaintiff or defendant who refuses a reasonable offer to settle may be penalized for needlessly dragging out the litigation. | |||
'''NOTE:''' An offer to settle does not expire due to a counter offer being made. | |||
For Rule 9-1 to be engaged, a formal offer to settle must be made in writing, and delivered to all parties of record, and must contain the language: | |||
*"The ............''[party(ies)]''............, ............''[name(s) of party(ies)]''............, reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding." | |||
Such an offer to settle must not be disclosed to the court/jury or set out in any proceeding until all issues in the proceeding, other than costs, have been determined. Also, an offer to settle does not constitute an admission. | |||
If a plaintiff accepts an offer, the sum of which falls in the jurisdiction of the Provincial court (''Small Claims Act''), they are NOT entitled to costs, other than disbursements. However, this rule can be overridden if the court finds a sufficient reason for the proceeding taking place in the Supreme Court. | |||
The court, in assessing costs has broad discretion to consider a refusal to settle in making an order with respect to costs. The court may consider: | |||
*whether the offer ought to have reasonably been accepted; | |||
*relationship between the terms of settlement and the final judgment of the court; | |||
*relative financial circumstances of the parties; and/or | |||
*any other factor the court considers appropriate. | |||
Based on such considerations, the court '''may''' do one or more of the following: | |||
*if it determines that the offer ought reasonably to have been accepted, then the court may deprive a party of costs, to which it would otherwise be entitled, for steps taken after the date of service or delivery of the offer to settle; | |||
*award double costs for all or some of the steps taken in the proceeding after the delivery date of the formal offer; | |||
*award a party costs for all or some of the steps taken in the proceeding after the delivery date of the formal offer which that party would be entitled to had the offer not been made; | |||
*Where the plaintiff refuses an offer to settle from the defendant, and the eventual judgement is no greater than the offer, the court may award the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of the offer. | |||
12-36 | 12-36 | ||
