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| :(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). | | :(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). |
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| == D. Uninsured Motorists or Unidentified Motorists (Hit and Run) Cases == | | == C. Uninsured or Unidentified Motorists (Hit and Run) Cases == |
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| === 1. Claims Against Uninsured Vehicles: Section 20 of the ''IVA'' === | | === 1. Exclusion of ICBC Liability in Uninsured or Unidentified Motorist Cases === |
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| 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, they are not without a remedy. Instead, the claimant may make a claim to ICBC for compensation.
| | There are certain situations where ICBC will not be liable to pay a claim made under section 20 and/or section 24 of the IVA. ICBC will not be liable: |
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| ==== a) Definition of Uninsured Vehicle ====
| | *To a claimant, under s 24 of the ''IVA'', who fails to comply with section 107(1) of the ''IVA'' without reasonable cause; |
| | *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)). |
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| 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.
| | === 2. Forfeiture and Breach of Conditions in Uninsured and Underinsured Motorist Cases === |
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| ==== b) Limitation Period ====
| | The same provisions apply as those outlined under Section XI.B.10: Forfeiture of Claims and Relief from Forfeiture and Section XI.B.11: Breach of Conditions and Consequences, above. These are contained in s 19 of the ''IVA'' and s 55 of the ''IVR''. |
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| The claimant must meet the requirements set out in the ''LA''. 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) and ''Civil Resolution Tribunal Act'', s 13).
| | === 3. Underinsured Motorist Protection (UMP): Part 10, Division 2 of the ''IVR'' === |
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| ==== c) Rights and Obligations of ICBC ==== | | ==== a) What is UMP Coverage? ==== |
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| 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)).
| | UMP coverage, part of the basic compulsory coverage, provides $1,000,000 in compensation against bodily injury or death for the victim of an accident caused by a motorist who does not carry sufficient insurance. The maximum coverage under UMP is $2,000,000 (which an insured must pay an extra premium to purchase) for each insured person (Schedule 3, s 13 of the ''IVR''). This limit includes claims for prejudgment and post-judgment interest and costs. See section 148.1(5). |
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| 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.
| | ==== b) Prerequisites for UMP Coverage ==== |
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| 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)).
| | Generally, UMP coverage is available where an insured’s death or injury is caused by the operation of a vehicle operated by an underinsured motorist, and occurs in Canada or the U.S. |
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| If the claimant serves the uninsured defendant directly and they do 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 them, 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)).
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| ==== d) ICBC Liability Limited ====
| | If an insured is making a claim for UMP coverage in relation to a '''hit and run accident''', there are additional requirements that need to be met (s 148.1(4)): |
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| There is a limit to how much ICBC will pay out for any individual claim made under section 20 of the ''IVA''. Regardless of the number of claims or the number of people making claims, the limit of ICBC’s liability arising out of the same accident is $200,000, including claims for costs, pre-judgment, and post-judgment interest (see ''IVR'', s 105 and Schedule 3, s 9(1)).
| | * The accident must occur on a highway; and |
| | * The accident must have '''physical''' contact between the insured vehicle and the unidentified vehicle, '''if''' it occurred in Nunavut, the Yukon Territory, the Northwest Territories, or the United States. |
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| 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.
| | ==== c) Who is Covered? ==== |
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| 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.
| | Under section 148.1 ''IVR'', “insured” includes, but is not limited to: |
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| Also, see [[{{PAGENAME}}#3. Exclusion of ICBC Liability | Section X.D.3. Exclusion of ICBC Liability]], below.
| | * a person named in the owner’s certificate and members of their household; |
| | * any person who is an occupant of the insured vehicle; |
| | * any person with a valid BC “driver’s certificate” (i.e., driver’s license) and members of their household; and |
| | * any person entitled, in the jurisdiction in which the accident occurred, to maintain an action against the underinsured motorist for damages because of the death of one of the insured. |
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| 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).
| | ==== d) Who is Not Covered? ==== |
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| Excess underinsured motorist protection may still be purchased through insurers and presumably is intended to be covered under ''IVA'' Part 4 (Optional Insurance Contracts).
| | Section 148.1(3) of the ''IVR'' describes when ICBC will not be liable. Some limitations include: |
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| === 2. Claims Against Unidentified or Hit and Run Motorists: Section 24 of the ''IVA'' ===
| | * the insured’s vehicle was not licensed, and the insured had no reasonable grounds to believe it was; or |
| | * the vehicle’s operator or passenger did not have the owner’s consent to operate or be in the vehicle and ought to have known there was no consent (i.e., the operator or passenger is in a stolen vehicle). |
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| Where personal injury, death, or property damage arises out of the use of a vehicle on a road '''in British Columbia''' and the identity of the driver and owner cannot be ascertained (or the ascertained owner is not liable, as would be the case if the vehicle had been stolen), the injured party may sue ICBC as nominal defendant. For accidents occurring outside BC, see [[{{PAGENAME}}#1. Inverse Liability and Uninsured or Hit and Run Accidents Outside BC | Section X.E.1: Inverse Liability and Uninsured or Hit and Run Accidents Outside BC]].
| | ==== e) UMP Coverage and Accidents Outside BC ==== |
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| ==== a) Reasonable Efforts to Ascertain Identity ====
| | For accidents occurring outside BC, the '''law of the place where the accident occurred determines the legal liability of an underinsured motorist''', whereas the amount of the UMP claim is determined by BC law. See section 148.2(6) of the ''IVR''. |
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| In order for a claimant to make a claim or get a 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 Insurance Corporation of British Columbia''], 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.
| | UMP protection does not apply in a jurisdiction where the right to sue for injuries caused by a vehicle accident is barred by law (''IVR'', s 148.2(4)) or to vehicles used as buses, taxis, or limousines (s 148.4). |
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| ==== b) Written Notice to ICBC ==== | | ==== f) Forfeiture and Breach of Conditions ==== |
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| To proceed with the claim against ICBC as a nominal defendant, the claimant must give written notice to ICBC “as soon as reasonably practicable” and within six months of the accident (''IVA'', s 24(2).
| | Under section 148.2(5) of the ''IVR'', the same provisions that apply to those outlined under Third Party Legal Liability also apply here (see Section XI.B.10: Forfeiture of Claims and Relief from Forfeiture and Section XI.B.11: Breach of Conditions and Consequences, above.). An award otherwise available under UMP will be reduced by any amount forfeited by a breach outlined in s 55. |
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| ==== c) Police Report Requirements ==== | | ==== g) Dispute Resolution ==== |
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| A claimant must make an accident report to the police (''IVA'', s 107(1)). More specifically, the claimant must:
| | Disputes between claimants and ICBC, and the reasons for the decision must be published (''IVR'', s 148.2(1.1) and ((2.1)). |
| *make a report to the police within 48 hours of discovering the loss or damage;
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| *get the police case file number for the police report; and
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| *on ICBC’s request, advise ICBC of the police case file number.
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| If a claimant fails to comply with the above without reasonable cause, then ICBC will not be liable to pay the claim made under s 24 of the ''IVA''.
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| ==== d) Limitation Period ====
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| Once notice has been properly provided, the claimant must also 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)).
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| === 3. Exclusion of ICBC Liability ===
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| There are certain situations where ICBC will not be liable to pay a claim made under section 20 and/or section 24 of the ''IVA''. ICBC will '''not''' be liable:
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| *to a claimant, under s 24 of the ''IVA'', who fails to comply with section 107(1) of the ''IVA'' without reasonable cause (see [[{{PAGENAME}}#10. | Section X.D.2.c]]): Police Report Requirements);
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| *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)).
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| === 4. Forfeiture and Breach of Conditions ===
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| The same provisions apply as those outlined under [[{{PAGENAME}}#10. Forfeiture of Claims and Relief from Forfeiture | Section X.B.10: Forfeiture of Claims and Relief from Forfeiture]] and [[{{PAGENAME}}#11. Breach of Conditions and Consequences | Section X.B.11: Breach of Conditions and Consequences]], above. These are contained in s 19 of the ''IVA'' and s 55 of the ''IVR''.
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| == E. First Party Coverage Under Part 10 of the IVR == | | == E. First Party Coverage Under Part 10 of the IVR == |