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

{{REVIEWED LSLAP | date= August 2, 2022}}

ICBC is the sole provider of basic insurance for non-exempt vehicles in BC.  Exempt vehicles are described in sections 43–44 of the ''IVA'' and also in section 2 of the ''IVR''.  For most vehicles owned, leased or operated in BC, third-party liability coverage up to $200,000 is only available from ICBC.  Full coverage for exempt vehicles, extended coverage in excess of the basic coverage (third party liability insurance over $200,000, ''IVR'', s 67), and collision (“own damage”) insurance may be purchased from either ICBC or from private insurers. See [[Optional ICBC Insurance (12:XI)|Section XI: Optional Insurance]], below. Note that private insurers may have their own requirement for coverage that may be above and beyond the requirements of ICBC

Vehicles licensed in BC are required by law to carry basic compulsory coverage, which is evidenced by a certificate of automobile insurance issued under the ''IVA'' to someone licensed under the ''MVA'' (i.e. the “insured”).  

c) where the owner is deceased, the personal representative of the owner or a person having, with the consent of the personal representative, custody of the vehicle until the grant of letters probate or of administration to the personal representative, and

 

d) where the owner is not an individual,

<blockquote>(i) an officer, employee or partner of the owner for whose regular use the vehicle described in the owner's certificate is provided, or (ii) a member of the household of an officer, employee or partner of the owner, who, with the consent of the owner, uses or operates the vehicle described in the owner's certificate.</blockquote> </blockquote>

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).

<blockquote> a) a person named as an owner in an owner’s certificate;

b) a member of the owner’s household;

 

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

d) the spouse of an employee or partner described in paragraph (c) where the spouse resides with the employee or partner.</blockquote>

<blockquote> *In respect of a TNS-only vehicle operated under a transportation network services authorization, the corporation's exemption applies only if injury or death of another, or loss or damage to property of another, arises out of the operation of the TNS-only vehicle when  

<blockquote> (a) the vehicle has been hailed by or for passengers through the use of the online platform to which the transportation network services authorization relates, and  

(b) the insured is operating the vehicle for the purposes of picking up, transporting or dropping off those passengers. </blockquote> </blockquote>

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:

<blockquote> a) reimburse an insured for reasonable payments for emergency medical aid necessary to a person injured as the result of an accident for which indemnity is payable under this Part, if reimbursement is not provided to the insured under another Part or by another insurer,

 

b) pay costs incurred for fire extinguishers, jacks or other necessary emergency equipment or supplies provided to the insured,

 

c) pay that proportion of the costs taxed against an insured in an action respecting a claim under this Part that <blockquote> (i) the amount offered by the corporation as its total liability for indemnity to the insured under this Part in an offer to settle served in accordance with the Supreme Court Civil Rules bears to (ii) The aggregate of all special and general damages awarded in respect of the occurrence for which the claim is made, </blockquote>

 

d) pay <blockquote> (i) (i) prejudgment interest under the Court Order Interest Act or similar legislation of another jurisdiction, and

(ii) (ii) post-judgment interest under the Interest Act (Canada) or similar legislation of another jurisdiction </blockquote>

 

e) if indemnity is provided to the insured under this Part and by one or more optional insurance contracts provided by an insurer other than the corporation, contribute to the payment of expenses, costs and reimbursements for which provision is made under section 172 in accordance with that other insurer's and the corporation's respective liabilities for

<blockquote> (i) damages awarded against the insured, or

(ii) the amount payable under a settlement made on behalf of the insured.  

*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 section 20 or 24 of the Act or section 49.3,

*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

<blockquote> 9 (1) In this section, "the territory in which the vehicle is primarily located when not in use" means the territory in which the place where the vehicle is kept when not being driven is located.

 

 

(2) The insured named on an owner's certificate must, <blockquote> (a) within 10 days after <blockquote> (i) the insured's address is changed from the address set out in the certificate, or  

 

 

(ii) the insured acquires a substitute vehicle for the vehicle described in the certificate, or </blockquote>

 

(b) before <blockquote> (i) the use of the vehicle described in the certificate is changed to a use to which a different vehicle rate class applies than the vehicle rate class applicable to the use set out in the certificate, or  

 

 

(ii) a vehicle in respect of which the premium is established on the basis of the territory in which a vehicle of that vehicle rate class is used or principally used, as the case may be, is used or principally used in a different territory than that set out in the certificate,</blockquote> </blockquote>

 

report the change of address, vehicle, use or territory to a person referred to in section 3, and pay or be refunded the resulting difference in premium.

 

(3) If the premium for a vehicle is established on the basis of the territory in which the vehicle is primarily located when not in use and that territory as set out in the owner's certificate is changed, the insured named on the certificate must, unless the vehicle is being used by the insured for vacation purposes, report the change to a person referred to in section 3 within 30 days of the change, and pay or be refunded the resulting difference in premium.

<blockquote> 73   (1) An insured must <blockquote>

 

(a) promptly give the corporation written notice, with all available particulars, of <blockquote>

 

(i) any accident involving death, injury, damage or loss in which the insured or a vehicle owned or operated by the insured has been involved,

 

 

(ii) any claim made in respect of the accident, and

 

 

(iii) any other insurance held by the insured providing coverage for the accident,

 

 

(b) on receipt of a claim, legal document or correspondence relating to a claim, immediately send the corporation a copy of the claim, document or correspondence,

 

(c) cooperate with the corporation in the investigation, settlement or defence of a claim or action,

 

(d) except at the insured's own cost, assume no liability and settle no claim, and

 

(e) allow the corporation to inspect an insured vehicle or its equipment or both at any reasonable time. </blockquote>

 

(2) The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

 

 

<blockquote> a) an applicant for coverage falsely describes the vehicle in respect of which the application is made to the prejudice of the insurer (s 75(a)(i));

b) an applicant for coverage knowingly misrepresents or fails to disclose a fact required to be stated in it (s 75(a)(ii));

c) then insured violates a term or condition of or commits a fraud in relation to the plan or the OIC (s 75(b); see [[{{PAGENAME}}#11. Breach of Conditions and Consequences | Section X.B.11: Breach of Conditions and Consequences]];

 

 

'''NOTE''': According to [https://www.canlii.org/en/bc/bcsc/doc/1994/1994canlii3304/1994canlii3304.html?autocompleteStr=brooks%20v%20insurance&autocompletePos=3 Brooks v Insurance Corporation of British Columbia], 1994 CanLII 3304 (BC SC), 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.

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

 

 

 

'''NOTE''': When the court determines who the principle driver is, it will consider the entire period covered by the insurance plan: see [https://www.canlii.org/en/bc/bcsc/doc/1981/1981canlii608/1981canlii608.html?resultIndex=1 ''Dehm v Insurance Corporation of British Columbia'', 1981 CanLII 608 (BC SC)].  

<blockquote> a) incapable of properly controlling the vehicle because of the influence of alcohol or drugs;

b) convicted under any one of the following sections of the ''Criminal Code'', RSC 1985, c C-46 (see also ''MVA Regulations'', s 28.01 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(1) (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;  

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

*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 </blockquote>

 

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). </blockquote>

<blockquote> 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 their vehicle. That is, the connection between the injuries and the ownership, use, or operation of the vehicle must not be merely incidental or fortuitous. </blockquote>

<blockquote> a) within 20 days of the accident, the injury completely disables the insured; '''and'''</blockquote>

<blockquote> b) the insured is an “employed person” (''IVR'', s 80). </blockquote>

'''NOTE''': There is a waiting period of seven days before disability benefits are paid out.  Also, no benefits are paid for these initial seven days (''IVR'', s 85).

'''NOTE''': Any benefits payable under s 80, 84, or 86 of the IVR may be reviewed every 12 months and terminated by ICBC on the advice of its medical adviser (''IVR'', s 87).  

c) $2,500 if the deceased was a “spouse in household” (i.e. was supporting the household or helping to raise dependent children), plus a  Supplemental Death benefit of $1,000 for each survivor other than the first, plus Additional Death Benefits of $145 per week for the first  survivor and $35 per week for each additional survivor for a duration of 104 weeks (see s 92 of the ''IVR'').</blockquote>

'''NOTE''':  

<blockquote> Status with respect to “head of household”, “spouse of household” or “dependent child” is determined at the date of death resulting from a motor vehicle accident.

In addition, the ''Family Compensation Act'', RSBC 1996, c 126 [FCA], creates a statutory right for claims to be brought by the surviving spouse, parent, grandparent, or child of the deceased, in some cases appropriately as against ICBC.

*the insured must have “substantially” complied with sections 97-100 (See [[{{PAGENAME}}#7. Duties of the Insured | Section X.C.6.b: Duties in Sections 97-100 of the ''IVR'']] below); and  

<blockquote> <blockquote> a) with '''three months''' after the date of the response from ICBC;

 

b) within '''two years''' after the date of the accident for which the benefits are claimed;

 

c) where benefits have been paid, with two years after the date the insured last received a payment. </blockquote> </blockquote>

'''NOTE''': For liability to cease (i.e. coverage to be denied), ICBC must have suffered prejudice as a result of the applicant’ s failure to comply.

== D. Uninsured Motorists or Unidentified Motorist (Hit and Run) Cases ==

'''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 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 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.

*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)).

<blockquote>(a) the person named as an owner in an owner's certificate or if deceased, their personal representative;  

(b) a person who can provide written proof that they are the beneficial owner of a commercial vehicle described in an owner's certificate; or   

(c) the renter of a vehicle described in an owner's certificate. </blockquote>

ICBC’s liability (i.e. the payout) is limited to $200,000 (see Schedule 3, s 11 of the ''IVR''). Payments are subject to adjustment if recovery or  partial recovery is made from another party (''IVR'', s 148(2)).  

*file with ICBC, within 28 days of the accident, a statement under oath that: a) the insured has a cause of action arising out of the accident  against the owner or driver of an '''unidentified or uninsured''' vehicle and b) setting out the facts in support of that statement; '''and'''

*at ICBC’s request, allow ICBC to inspect the insured’s motor vehicle that was in the accident.  

:'''NOTE:''' Payments made under s 148 will be deducted from the amount aninsured is entitled to under Parts 6 or 7 of the ''IVR'' (s 148(6) and (7)). Also, ICBC will not be liable to pay any benefit, indemnity, or compensation payable from another source, including: Workers Compensation, Employment Insurance, and any government bodies (s 106(1)).  

*any person with a valid BC “driver’s certificate” (i.e. driver’s license) and members of their household; and  

*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).