Difference between revisions of "ICBC and Compulsory Coverage (12:X)"

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, he or she is not without a remedy. Instead, the claimant may make a claim to ICBC for compensation.  

Under the current ''IVA'', an “uninsured motorist” continues to be defined as someone who operates a motor vehicle without third party liability coverage of at least $100,000. When death, personal injury, or property damage results from the use of an uninsured vehicle, a claimant may apply to ICBC under s 20 for compensation.  

The claimant must meet the requirements set out in the ''Limitation Act''. The claimant has two years from the date of the loss to start an action for personal injury, death, and/or property damage (''LA'', s 3(2)).  

If ICBC receives such an application under s 20, it must forward a notice it to the owner or driver of the uninsured motor vehicle, by registered mail (''IVA'', s 20(3)). If ICBC pays out any amount under this section, it is subrogated to the rights of the person paid (i.e. the successful claimant). Also, ICBC may maintain an action in its name or in the name of the successful claimant against the person liable (''IVA'', s 20(11)).  

After ICBC has given notice to the owner or driver of the uninsured vehicle (“the defendant”), it has control over the resolution of the case. ICBC is deemed to be the agent of the defendant for service of notice. Thus, the Claimant may start an action against the defendant by serving ICBC with a Notice of Claim in Small Claims or a Notice of Civil Claim in Supreme Court.  

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 he or she does 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 him or her, 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)).

The insured and the claimant both have an obligation to seek other sources of coverage. Applicants may have other sources of insurance, including claims or benefits under the ''Workers’ Compensation Act'', RSBC 1996, c 492, the ''Employment Insurance Act'' (Canada), RSC 1996, c 23, and/or the government of Canada or provinces or territories. It is important that applicants apply for all benefits they are entitled to under the above sources of coverage or other similar sources coverage since ICBC is relieved from paying the of judgment equal to what is provided by these sources.  

Furthermore, applicants should also apply for all benefits and/or coverage from any private insurance that they may have as soon as possible. An applicant may have private insurance through their employer. ICBC may not be obligated to pay benefits that could have been received (note: need not actually receive) from another source. If a decision is made concluding that ICBC is not liable for these amounts, the limitation period for making a claim through the other source will most likely have ended. See section 81, 83 and 106 of the ''IVR'' for more details.  

:'''NOTE:''' Any dispute as to entitlement or amount of damages an insured is entitled to recover must be submitted for arbitration under the ''Commercial Arbitration Act'', RSBC 1996, c 55 (''IVR'', s 148.2).  

:'''NOTE:''' Excess underinsured motorist protection may still be purchased through insurers and presumably is intended to be covered under ''IVA''  Part 4 (Optional Insurance Contracts).

In order for a claimant to make a claim or get judgment against ICBC under s 24 of the ''IVA'', the court must first be satisfied that all reasonable efforts have been made to ascertain the identity of the owner and/or driver (''IVA'', s 24(5)). [http://www.canlii.org/en/bc/bcca/doc/1992/1992canlii1263/1992canlii1263.html?autocompleteStr=leggett%20&autocompletePos=1 ''Leggett v ICBC''], 1992 CanLII 1263 (BCCA), states that the critical time of taking steps to ascertain the identity of the driver is immediately at the scene of the accident, and that reasonable efforts must be interpreted in the context of the claimant’s position and ability to discover the driver or owner’s identity. This could include taking down the description of the vehicle, including the license plate number, if the claimant is able to at the scene. If the identity of those persons cannot be ascertained, ICBC is authorized to settle any such claims, or to conduct the defence of the case as it sees fit.

*to a claimant, under s 24 of the ''IVA'', who fails to comply with section 107(1) of the ''IVA'' without reasonable cause (see Section II.D.2.c): Police Report Requirements);  

*to a claimant, under s 20 or 24 of the ''IVA'', for loss or damage arising while the vehicle was in the claimant’s possession without the owner’s consent (i.e. stolen) (''IVR'', s 107(2)(a));

*for a claim under s 24 of the ''IVA'', made by the Province, Canada, or a municipality, public or private utility, or other similar person in respect to damage to a highway (''IVR'', s 107(2)(b)).