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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)
Revision as of 22:23, 17 June 2016
, 22:23, 17 June 2016→12. Making a Claim Under Part 6: Procedural Steps and Considerations
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==== a) Limitation Period ==== | ==== a) Limitation Period ==== | ||
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 Limitation Act. Section 3(2)(a) of the Limitation Act provides a two-year | 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 ''Limitation Act''. Section 3(2)(a) of the ''Limitation Act'' 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 (''Limitation Act'', 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 (''Limitation Act'', s 7(6)). The Notice to Proceed must meet the requirements of the ''Limitation Act'' ss 7(7)(a-g). | |||
==== b) Duties Outlined in Section 73 of the IVR ==== | |||
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 II.B.7. Duties of the Insured]]. | |||
==== c) Service on ICBC ==== | |||
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). | |||
==== d) Information and Evidence ==== | |||
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 W.W.R. 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. | |||
== C. Accident (“No Fault”) Benefits: Part 7 of the IVR == | |||
=== 1. What are “No Fault” Benefits? === | |||
Regardless of who is at fault in an accident, ICBC pays benefits for injuries to the occupants of a licensed vehicle and pedestrians and cyclists injured by a vehicle described in any owner’ s certificate. The accident benefits, commonly called “no fault” benefits, are payable to an insured for death or injury caused by an accident arising out of the owner’ s ownership, use, or operation of a vehicle in Canada or, with some restrictions, in the U.S.(IVR, s 79(1)). In Amosv ICBC, [1995] 3 S.CR. 405, the Supreme Court of Canada laid out a two-part test for determining if death or injury falls within the scope of s 79(1). The following must be met: a)the accident must result from the ordinary and well-known activities to which automobiles are put; and b)there must be some nexus or causal relationship (not necessarily a direct or proximate causal relationship) between the plaintiff’ s injuries and the owner’ s ownership, use, or operation of his or her vehicle. That is, the connection between the injuries and the ownership, use, or operation of the vehicle must not be merely incidental or fortuitous. Amos reversed the BC Court of Appeal judgment and held that the plaintiff’ s injuries were causally connected to the ownership and use of his vehicle. The plaintiff was shot while driving away from a gang who was trying to gain entry into his motor vehicle. However, Major J. noted that if the gunshots had been truly random and not causally connected to the plaintiff’ s ownership of the vehicle then his injuries would not have been covered under s 79(1). 2.Who is Covered? Section 78 of the IVR contains a definition of "insured", which includes, in part: a person named as an owner in an owner's certificate; a household member of a person named in an owner's certificate; an occupant of a vehicle that is licensed in BC and is not exempted under section 43 of the IVA (vehicles from the federal or a provincial government other than BC); any occupant of a vehicle that is not required to be licensed in BC, but is operated by a person named in a driver's certificate; a cyclist or pedestrian who collides with a vehicle described in an owner's certificate; a BC resident who is entitled to bring an action for injury or death under section 20 (uninsured vehicles) or 24 (remedy for hit and run accidents) of the IVA; or | |||