ICBC and Basic Compulsory Autoplan Coverage (12:X): Difference between revisions

This insurance indemnifies the insured against liability imposed on the insured by law for the injury or death of another, and/or loss or damage to another’s property, to a total limit of $200,000 (''IVR'', s 67), to be shared among the victims of a motor vehicle accident (Schedule 3, s 1). The base limit of liability is $500,000 in claims made for a bus, and $300,000 in claims made for a taxi or limousine. Extended Third Party Legal Liability coverage may be purchased at the insured’s discretion. (See [[Optional_ICBC_Insurance_(12:IV)|Section IV: Optional Insurance]], below). If the insured is found legally liable, and no extended coverage has been purchased, he or she is responsible for payment of any claims in excess of the above limits.

 

The definitions of “insured” for this part of the ''IVR'' may be found in ''IVR'', s 63. For our purposes, the most relevant definitions of “insured” are:  

*a) a person named in an owner’ s certificate; or  

*b) an individual who operates the vehicle described in the owner’s certificate with the consent of the owner; or  

*c) an individual who operates the vehicle described in the owner’s certificate while being a member of the owner’s household.  

According to IVR, s 65, indemnity is extended to an insured who operates a motor vehicle not described in an owner’s certificate issued to the insured (i.e. someone else’s car). For the purposes of s 65 only, “insured” includes the following:  

*a) a person named as an owner in an owner’s certificate;  

*c) an employee or partner of the owner, where their regular use of the vehicle described in the owner’s certificate is provided for; and  

*d) the spouse of an employee or partner described in paragraph (c) where the spouse resides with the employee or partner.  

Note that, absent this expanded definition, “insured” would not otherwise cover a member of the insured’s household operating a vehicle not described in an owner’s certificate issued to the insured.  

Section 65(2) of the IVR states that if an insured is operating a motor vehicle that is not described in an owner’s certificate issued to him or her, indemnity is not extended to the insured if:  

*the insured is operating the motor vehicle in connection with the business of a garage service operator;  

*the motor vehicle is owned or regularly operated by the insured;  

*the motor vehicle is used for carrying passengers for compensation or hire or for commercial use;  

*the motor vehicle is in fact not licensed under the MVA (or similar legislation) and the insured does not have reasonable grounds to believe the motor vehicle is licensed; or

*the insured is operating the vehicle without the consent of the owner and does not have reasonable grounds to believe that he has the consent of the owner.

In addition to the legal liability coverage (i.e. s 65 indemnification) outlined above, IVR ss 67 and 69 states that ICBC may also pay for:  

*a) “reasonable” emergency medical aid, so long as reimbursement is not provided to the insured by another insurer or under another Part;  

*c) all or some (depending upon the circumstances) of the costs taxed against the insured in an action, in accordance with the British  Columbia Supreme Court Rules, BC Reg 221/90 for aggregated general and specific damages; and  

*d) the pre-judgment interest under the ''Court Order Interest Act'', RSBC 1996, c 79 or analogous legislation of another jurisdiction on that part of the judgment, and pay post-judgment interest under the ''Interest Act'', RSC 1985, c I-15 or analogous legislation of another jurisdiction on that part of the judgment, both within the limits set out in s 1 of Schedule 3 (IVR).

ICBC will '''not''' indemnify an insured for certain types of damage, including:  

*loss or damage to property carried in or on a vehicle owned, rented or in the care, custody or control of an insured (s 72.1); or  

*liability directly or indirectly arising out of the operation of attached equipment i.e. machinery or equipment that is mounted on or attached to the vehicle, and which is not required for the safe operation of that vehicle) at a site where such equipment is operated, unless the attached equipment is used in accordance with the ''IVR'' (s 72(2)); or  

*under Part 4, 6, 7, or 10 in respect of injury, death, loss or damage arising out of radioactive, toxic, explosive or other hazardous properties of prescribed substances under the ''Atomic Entergy Contract Act'' (''IVR'', s 56(1)(a)); or

*under ''IVA'', s 20 (uninsured vehicles), s 24 (hit and run accidents), s 49.3 (default of premiums); or

*under Part 7 or Part 10 in respect of any injury, death, loss or damage arising, directly or indirectly out of a declared or undeclared war or insurrection, rebellion or revolution (''IVR'', s 56(1)(b)); or

*under ''IVA'', s 20, s 24, s 49, s 49.3(1)(b), Part 6 or Part 10 in respect of punitive or exemplary damages or other similar non-compensatory damages (''IVR'', s 56(1)(c)).

*a general or special assessment, penalty or premium, payable under the ''Workers’ Compensation Act'' or similar Act (''IVR'', s 72.1(1)(a)).

An insured has a duty to report to ICBC mid-term changes, as required by s 9 of the ''IVR''. These changes may result in an increase or decrease in the premiums paid to ICBC. The insured named in the owner’s certificate is obligated to report to an ICBC agent the following:

*a) any change in the insured’s address within 10 days '''after''' the change;  

*b) any acquisition of a substitute vehicle for the vehicle described in the certificate within 10 days '''after''' the acquisition;  

*c) any anticipated change in the use of the vehicle described in the certificate to a use to which a different insurance rate applies '''before''' such a change;

Furthermore, ICBC is not liable to indemnify an insured who, to the prejudice of ICBC, fails to comply with duties outlined in s 73 of the ''IVR''. This section states that an insured:  

*a) must promptly give ICBC written notice of any claim made for the accident, including any other insurance held by him or her providing coverage for the accident;  

*b) must help secure evidence and information and the attendance of any witnesses;  

*c) must cooperate with ICBC in the defence of any action or proceeding, or appeal, taken by ICBC on behalf of the insured;  

*d) must allow ICBC to inspect an insured vehicle at any reasonable time;

*e) must, on receipt of a claim, legal document or correspondence relating to a claim, immediately send a copy to ICBC;  

*f) must not voluntarily assume liability or settle any claim except at his or her own cost; and  

On receipt of a notice of a claim under Part 6 of the ''IVR'', ICBC must, at its expense, assist the insured by investigating and negotiating a settlement where in its opinion such assistance is necessary, and defend the insured against any action for damages (s 74).

Upon assuming the defence of an action for damages brought against an insured, ICBC has the right, subject to section 79 of the Act, to the exclusive conduct and control of the defence. This right includes, but is not limited to, the right to appoint and instruct counsel, to admit liability, to negotiate, and/or settle out of court (''IVR'', s 74.1).  

Certain conduct by the insured or applicant can result in “forfeiture”, whereby the insured is deemed to have given up his or her right to be indemnified by ICBC. In this situation, the claim for indemnification becomes invalid. Apart from exclusions, a claim may be forfeited under s 75 of the ''IVA'' if:  

*a) an applicant for coverage falsely describes the vehicle for which the application is made to the prejudice of the insurer (s 75(a)(i));  

*d) an insured makes a “wilfully false statement” with respect to a claim under a plan of insurance (s 75(c)).  

:'''NOTE:''' According to ''Brooks v ICBC'' (1994), 89 BCLR (2d) 215 (S.C), per Bouck J, the purpose of s 19(1)(e) (now ''IVA'', s 75(c)) is to prevent intentionally deceitful misstatements for the purpose of defrauding the insurer; “exaggerated guesses” by an insured as to the value of a lost motor vehicle, or figures inserted for the purpose of goading an insurer into action, are insufficient to deny coverage unless a fraudulent purpose on the part of the insured is shown.  

However, ICBC may relieve the insured from forfeiture under s 75 if said forfeiture would be “inequitable”. Furthermore, ICBC must relieve an insured from forfeiture if:  

*a) it is equitable to do so, and

*b) the insured dies or suffers a loss of mind or bodily function that renders the insured permanently incapable of engaging in any occupation for wages or profit (''IVA'', s 19(3)).  

Because there are various definitions of “insured” in the ''IMVAR'' (and ''IVR''), the only reasonable interpretation of s 19 (the relief of forfeiture provision discussed above) is that it is to be read broadly to include all of the definitions: see ''Khatkar v ICBC'' (1993), 25 CCLI (2d) 243 (BC Prov. Ct.), per Stansfield Prov. Ct. J.

Insured persons must be careful to abide by the terms and conditions of their plans and OICs. Coverage may be lost if an insured breaches certain conditions, including, but not limited to:  

*a) failing to comply with s 73 of the ''IVR'', to the prejudice of ICBC (See [[{{PAGENAME}}#7. Duties of the Insured | Section III.B.7. Duty of Insured]]);  

*b) operating a vehicle when not authorized and/or not qualified to do so (''IVR'', s 55(3)(a));  

*c) using the vehicle in illicit trades, racing, or avoiding arrest or other police action (''IVR'', s 55(3)(b), (c) and (d));  

*d) towing an unregistered and/or unlicensed trailer (''IVR'', s 55(4));  

*e) using the vehicle for a different purpose than the one declared by the insured in his or her application for insurance, except as “occasionally” permitted (''IVR'', s 55(2(a)); or  

*f) naming in the owner’s certificate someone as the principal operator of the insured vehicle who is not actually the principle operator (''IVR'', s 75).  

**'''NOTE:''' When the court determines who the principle driver is, it will consider the entire period covered by the insurance plan: see ''Dehm v ICBC'' (1982), 32 BCLR 23.  

Despite any breach of condition by an insured, insurance money is still payable to '''third parties''' by ICBC in cases where the insured person was:  

*b) convicted under any one of the following sections of the ''Criminal Code'', RSC 1985, c C-46 (see also ''MVA Regulations'', s 28.02 Table 4):

**s 220 (criminal negligence causing death);  

**s 221 (criminal negligence causing bodily harm);  

**s 236 (manslaughter);  

**s 249 (dangerous operation of a motor vehicle);  

**s 252 (failure to stop at an accident),  

**s 253 (driving while impaired or with a blood-alcohol level exceeding 80 milligrams per 100 millilitres);  

**s 254(5) (refusal or failure to give a breath sample);  

**s 255 (impaired driving causing bodily harm or death);  

**s 259 (4): driving while disqualified;  

**a conviction under the ''Youth Criminal Justice Act'' (Canada) for any of the above offences;  

**a “similar result” or conviction of these offences in a jurisdiction in the U.S.;  

**a conviction under ss 95 or 102 of the ''MVA'' or similar convictions under another Canadian or American jurisdiction (both concern driving while prohibited); or

*c) permitting another person to use the insured vehicle in a way that results in a conviction for any of the offences outlined above (''IMVA Regulations'', s 55).

Section 76 of the ''IVR'' provides that any action started to enforce third-party liability for bodily injury and/or property damage (i.e. claims made under Part 6 of the ''IVR'') must comply with the ''LA''. Section 3(2)(a) of the ''LA'' provides a two-year limitation period for actions for damages related to injuries to a person and/or property, including negligence claims against the driver and/or the owner of the vehicle driven.  

Minors are not subject to a limitation period (''LA'', s 7). After the minor has reached age 19, s 3(2)(a) begins to apply and the  two year limitation period commences. However, if the minor’s guardian/etc receives a Notice to Proceed, the limitation period is initiated notwithstanding the minor status (''LA'', s 7(6)). The Notice to Proceed must meet the requirements of the ''LA'', ss 7(7)(a-g).  

An insured must comply with s 73 of the ''IVR''. Failure to do so may result in a claim being denied. See [[{{PAGENAME}}#7. Duties of the Insured | Section III.B.7. Duties of the Insured]].

A claimant who starts an action for damages caused by a motor vehicle or trailer must also serve ICBC with a copy of the Notice of Civil Claim the same way the defendant is served and must also file proof of service in the court in which the action is started. No further step in the action can be taken until eight days after filing of the service in court (''IVA'', s 22).  

ICBC has a broad right to compel the insured and others to provide information set out in the IVA. Specific types of information that ICBC can demand are noted in s 11 (combined forms and information); s 27 (accident report); s 28 (medical reports); s 29 (employers’ reports); and s 30 (superintendent’s records).

According to ''McKnight v General Casualty Insurance'', [1931] 2 WWR 315 (BCCA), an insured need not provide information or evidence to an insurance company respecting a breach if the company is contemplating using such a breach to deny coverage to the insured. This is not considered to be refusing to cooperate with the insurer in the defence of the action. However, the insured may still have to provide information regarding the accident itself.