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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)
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{{REVIEWED LSLAP | date= August | {{REVIEWED LSLAP | date= August 1, 2023}} | ||
{{LSLAP Manual TOC|expanded = ICBC}} | {{LSLAP Manual TOC|expanded = ICBC}} | ||
{{LSLAP 12 Old System Notice}} | {{LSLAP 12 Old System Notice}} | ||
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 | 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”). | 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”). | ||
'''NOTE''': The definition of “the insured” varies somewhat from section to section in the ''IVA'' and ''IVR''. | '''NOTE''': The definition of “the insured” varies somewhat from section to section in the ''IVA'' and ''IVR''. | ||
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:(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 | :(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, | :(d) where the owner is not an individual, | ||
::(i) an officer, employee or partner of the owner for whose regular use the vehicle described in the owner's certificate is provided, or | ::(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. | ::(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. | ||
=== 3. Extension of Indemnity === | === 3. Extension of Indemnity === | ||
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). | 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: | For the purposes of s 65 only, “insured” includes the following: | ||
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As of September 1, 2019, ICBC requires drivers to list out all the household members who may drive their vehicles, regardless of the number of times they may drive it. In addition, non-household members such as employees who may be driving the insured’s vehicle for more than 12 times a year will also be required to be listed at the time of purchasing the policy. The additional members listed will be factored into the calculation for the premium paid. | As of September 1, 2019, ICBC requires drivers to list out all the household members who may drive their vehicles, regardless of the number of times they may drive it. In addition, non-household members such as employees who may be driving the insured’s vehicle for more than 12 times a year will also be required to be listed at the time of purchasing the policy. The additional members listed will be factored into the calculation for the premium paid. | ||
If a household member or non-household member, who was not listed on the principal’s policy, gets involved in an accident, ICBC will have the right to impose a financial penalty on the principal’s policy and the principal may also be subjected to a higher premium rate when renewing the policy in the future. | If a household member or non-household member, who was not listed on the principal’s policy, gets involved in an accident, ICBC will have the right to impose a financial penalty on the principal’s policy and the principal may also be subjected to a higher premium rate when renewing the policy in the future. | ||
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=== 5. What is Covered === | === 5. What is Covered === | ||
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: | 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) 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, | :(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, | :(b) pay costs incurred for fire extinguishers, jacks or other necessary emergency equipment or supplies provided to the insured, | ||
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ICBC will ''not'' indemnify an insured for certain types of damage, including: | 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 | *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 | *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, directly or indirectly, out of radioactive, toxic, explosive or other hazardous properties of nuclear substances within the meaning of the ''Nuclear Safety and Control Act'' (Canada), s 56(1)(a)); or | *under Part 4, 6, 7, or 10 in respect of injury, death, loss or damage arising, directly or indirectly, out of radioactive, toxic, explosive or other hazardous properties of nuclear substances within the meaning of the ''Nuclear Safety and Control Act'' (Canada), s 56(1)(a)); or | ||
*under sections 20 or 24 of the Act or section 49.3, Part 7 or Part 10 of the ''IVR'' 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 sections 20 or 24 of the Act or section 49.3, Part 7 or Part 10 of the ''IVR'' 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 | ||
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:(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''). | :(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''). | ||
:'''NOTE''': | :'''NOTE''': 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. | ||
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. | In addition, the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96126_01 ''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 ''FCA'' provides a statutory scheme for fatal accident compensation that abrogated the common law rule that no one has a cause of action in tort against a person who has wrongfully caused the death of a third person (see [http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc1168/2013bcsc1168.html?autocompleteStr=mcleod%20v%20ga&autocompletePos=5 ''Gaida Estate v McLeod''], 2013 BCSC 1168 (CanLII)). | The ''FCA'' provides a statutory scheme for fatal accident compensation that abrogated the common law rule that no one has a cause of action in tort against a person who has wrongfully caused the death of a third person (see [http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc1168/2013bcsc1168.html?autocompleteStr=mcleod%20v%20ga&autocompletePos=5 ''Gaida Estate v McLeod''], 2013 BCSC 1168 (CanLII)). | ||
The ''FCA'' intends to place the claimant in the same economic position that they would have enjoyed but for the death of their spouse, parent or child. There are only a limited number of family members that would be eligible for compensation under the ''FCA'', and the definition of who qualifies for compensation is important. The starting point to determine eligibility for bringing a claim begins with section 1 of the ''FCA''. | The ''FCA'' intends to place the claimant in the same economic position that they would have enjoyed but for the death of their spouse, parent or child. There are only a limited number of family members that would be eligible for compensation under the ''FCA'', and the definition of who qualifies for compensation is important. The starting point to determine eligibility for bringing a claim begins with section 1 of the ''FCA''. | ||
Compensation under the ''FCA'' is generally limited to the following: | Compensation under the ''FCA'' is generally limited to the following: | ||
# damages for loss of love, guidance and affection (generally for infant children of the deceased only); | # damages for loss of love, guidance and affection (generally for infant children of the deceased only); | ||
# damages for the loss of services that would otherwise have been provided by the deceased to the remaining family members; | # damages for the loss of services that would otherwise have been provided by the deceased to the remaining family members; | ||
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Section 103 of the IVR provides that any action started to enforce no-fault or accident benefits must do the following: | Section 103 of the IVR provides that any action started to enforce no-fault or accident benefits must do the following: | ||
*the insured must have “substantially” complied with sections 97-100 | *the insured must have “substantially” complied with sections 97-100 [[{{PAGENAME}}#6. Duties in Sections 97-100 of the ''IVR'' | Section X.C.6.b: Duties in Sections 97-100 of the ''IVR'']], below; and | ||
*the action must be started by the later of the following: | *the action must be started by the later of the following: | ||
:(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; | |||
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. | ||
c) where benefits have been paid, with two years after the date the insured last received a payment. | |||
*These limitation periods also apply to minors. In other words, the limitation date for Part 7 actions for minors does not commence at age 19 but commences on the date of the accident. | *These limitation periods also apply to minors. In other words, the limitation date for Part 7 actions for minors does not commence at age 19 but commences on the date of the accident. | ||
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*where applicable, permit a post mortem examination and/or autopsy. | *where applicable, permit a post mortem examination and/or autopsy. | ||
'''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. | :'''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 | == D. Uninsured Motorists or Unidentified Motorists (Hit and Run) Cases == | ||
=== 1. Claims Against Uninsured Vehicles: Section 20 of the ''IVA'' === | === 1. Claims Against Uninsured Vehicles: Section 20 of the ''IVA'' === | ||
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Also, see [[{{PAGENAME}}#3. Exclusion of ICBC Liability | Section X.D.3. Exclusion of ICBC Liability]], below. | Also, see [[{{PAGENAME}}#3. Exclusion of ICBC Liability | Section X.D.3. Exclusion of ICBC Liability]], below. | ||
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). | |||
Excess underinsured motorist protection may still be purchased through insurers and presumably is intended to be covered under ''IVA'' Part 4 (Optional Insurance Contracts). | |||
=== 2. Claims Against Unidentified or Hit and Run Motorists: Section 24 of the ''IVA'' === | === 2. Claims Against Unidentified or Hit and Run Motorists: Section 24 of the ''IVA'' === | ||
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==== a) Reasonable Efforts to Ascertain Identity ==== | ==== a) Reasonable Efforts to Ascertain Identity ==== | ||
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. | 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. | ||
==== b) Written Notice to ICBC ==== | ==== b) Written Notice to ICBC ==== | ||
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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: | 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: | ||
*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); | *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); | ||
*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)). | *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)). | ||
=== 4. Forfeiture and Breach of Conditions === | === 4. Forfeiture and Breach of Conditions === | ||
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Section 147 of the ''IVR'' has its own definition of “insured”, which includes: | Section 147 of the ''IVR'' has its own definition of “insured”, which includes: | ||
(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 | :(a) the person named as an owner in an owner's certificate or if deceased, their personal representative; | ||
(c) the renter of a vehicle described in an owner's certificate. | :(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. | |||
===== (3) What is Covered? ===== | ===== (3) What is Covered? ===== | ||
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===== (2) How Much is the Coverage? ===== | ===== (2) How Much is the Coverage? ===== | ||
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)). | 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)). | ||
===== (3) Exclusion or Limitation of Liability by ICBC ===== | ===== (3) Exclusion or Limitation of Liability by ICBC ===== | ||
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Under s 148(5) of the ''IVR'', the insured (or their representative) must: | Under s 148(5) of the ''IVR'', the insured (or their representative) must: | ||
*for accidents involving an '''unidentified''' vehicle, report the accident, within 24 hours of the accident, to the police, or the administrator of any law respecting motor vehicles; | *for accidents involving an '''unidentified''' vehicle, report the accident, within 24 hours of the accident, to the police, or the administrator of any law respecting motor vehicles; | ||
*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''' | *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''' | |||
::(c) 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)). | :'''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)). | ||
===== (5) Dispute Resolution ===== | ===== (5) Dispute Resolution ===== | ||
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*a person named in the owner’s certificate and members of their household; | *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 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 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. | *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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There are certain people who are not entitled to UMP coverage. Section 148.1(3) of the ''IVR'' describes when ICBC will not be liable. The following are most relevant, whereby coverage is denied if: | There are certain people who are not entitled to UMP coverage. Section 148.1(3) of the ''IVR'' describes when ICBC will not be liable. The following are most relevant, whereby coverage is denied if: | ||
*the insured’s vehicle was in fact not licensed and the insured had no reasonable grounds to believe it was; or | *the insured’s vehicle was in fact 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). | *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). | ||
==== e) UMP Coverage and Accidents Outside B.C. ==== | ==== e) UMP Coverage and Accidents Outside B.C. ==== | ||
