BC Motor Vehicle and ICBC Claims: Frequently Asked Questions

By Paul Mitchell, Q.C.
Categories: Personal Injury

Should I call a lawyer even if I may not have a case?

Yes, you should call a lawyer as soon as possible. Lawyers are trained to know the law and how the law applies in different situations. Since there is generally no charge for an initial consultation, there is nothing to lose by calling.

How long do I have to make a claim?

In BC most personal injury claims must be brought within two years. There are exceptions in certain types of cases which may make the period shorter ( claims against a Municplaity for negligence is an example, must be dealt with immediately). If you are injured in some type of accident, you should call a lawyer as soon as possible.

How do I pay my lawyer?

In personal injury cases, the lawyer is usually paid a "contingent fee." A contingent fee is calculated on the basis of the amount of money recovered for the client. Usually, the attorney retainer agreement calls for a contingent fee ranging from 25% to one-third, plus out-of-pocket costs. This means that the lawyer is paid the agreed percentage of the total settlement. In addition, the lawyer is reimbursed from the settlement for any out-of-pocket expenses advanced by the lawyer during the time the claim was pending. Out-of-pocket expenses include such things as filing fees, deposition fees, expert witness fees, and other similar expenses.

Different percentages may apply to certain types of cases, depending on the amount of the claim, and the risk of the injured person being found partially or fully responsible for the accident.

How do I find a good Personal Injury Lawyer?

You should look for a lawyer that has been practicing for a long time and has experience with your type of case. There is rarely a good substitute for experience, although experience may come in different forms.

Ask for names of lawyers from those in the health care sector familiar with your injury. Ask for names of lawyers from people who have gone through the process. Do not rely on  advertising. Do not hire the lawyer who did your house purchase, or will, as they may not have sufficient experience in motor vehicle cases. Interview several lawyers before making up your mind. Consider whether lawyers who also act for the insurance company, ICBC, should be acting for you against ICBC. Does the lawyer have a conflict? Will they be able to vigorously act in your best interests?

Another important factor in choosing a lawyer is to find a lawyer that has good rapport with the client and the family of the survivor. The survivor and their family will be spending a considerable amount of time with the lawyer before the case is concluded. It is important to choose a lawyer who has compassion, one who is a good listener and one who truly cares for the well being of the survivor and the entire family.

What Does the lawyer Do?

A lawyers goal is to achieve maximum compensation for his client. This is vitally important in personal injury claims as often the injured person’s quality of care will depend entirely on whether they have a settlement and if so, how much.

A lawyer’s role varies throughout the lawsuit. Immediately after the accident the lawyer’s primary role should be to ensure that the injured victim receives the proper medical and rehabilitation care to maximize their recovery. This often entails negotiating with I.C.B.C. and/or various medical facilities on behalf of the family to ensure that the injured person is receiving proper rehabilitation as soon as possible. This often requires obtaining interim funds to allow for costly rehabilitation to proceed.

As the case progresses the lawyer’s role is to gather information and eventually convince the Defendant’s insurer and lawyer that it is in their best interests to settle the case for a fair amount. The lawyer’s primary objective at all times should be to attempt to settle the case on terms beneficial to the client. In large catastrophic cases the uncertainty of trial, and the possibility of getting nothing could be devastating for the family. The lawyer’s role is to prepare the case in such a manner that the other side wants to settle. This means obtaining the best possible experts in all of the areas that require expert evidence. Brain injury cases require numerous experts including economists, structured settlement experts, actuaries, numerous medical experts, future care costs experts including rehabilitation consultants and vocational consultants.

On the issue of liability the lawyer will attempt to reconstruct the accident using accident reconstruction experts, automotive engineers, surveyors, photographers and many complex procedures.

The lawyer will attempt to evaluate the economic loss to the client to determine the cost of care required for their lifetime. Compiling the necessary expert evidence may take some time in a brain injury case.
Once the expert evidence is compiled settlement negotiations begin. This will often require numerous meetings between the two lawyers and the insurer and often joint meetings with the experts from both sides in an attempt to clarify the issues. Mediation is often attempted. In the end, if settlement discussions fail to achieve a settlement that is acceptable to both sides, the final alternative is to have a trial and have a Judge or Judge and Jury decide.

I was injured in an accident and someone from the insurance company called me. Do I need to talk to them?

You should always talk to a lawyer before talking with anyone about your injury, the way the injury happened, or anything else about your potential claim. You may not understand the significance of questions you are asked by an insurance adjuster and anything you say could be used against you later if it turns out that you have a legitimate claim. Insurance adjusters work for insurance companies and it is often their goal to pay as little as possible to the injured person.

It may be reasonable to talk to the insurance adjuster at some point, but you should talk to a lawyer first. Your lawyer will know how to best interact with the adjuster.

How long will it take to settle my claim?

 Many factors go into how quickly a case settles and every case is different. Some of the factors which determine how long it takes to settle a case include the seriousness of the injury, complexity of the case, which insurance company is involved for the wrongdoer (some companies tend to settle cases more quickly than others), and how clear it is that the other person was at fault in causing the injury. Your claim should not be settled until your injury has stabilized, and the long term impacts on your employment and life may be accurately assessed.

How much is my case worth?

While it may be possible for a lawyer to make a guess as to a very wide range of the possible worth of your case before all facts and circumstances are known, it is not reasonable to expect anything more definite than that. It is nearly impossible to estimate the value of a case until all of the facts and circumstances are known.You must also keep in mind that any preliminary opinion is subject to change, perhaps considerable change, as more facts become known.

Even after most or all facts are known, the most a lawyer can do is give you an educated guess based on his or her experience as to what a court might award you if the case goes to trial. Starting from there and then factoring in such things as the likelihood that a jury might award nothing, the lawyer can tell you what amount is reasonable for you to accept in settlement.

If, during an initial consultation with a lawyer, or at any time before all facts and circumstances are known, a lawyer claims to tell you what your case is worth or what you can expect, the lawyer is either not being honest or is not skilled enough to be handling your case. Even the best lawyer, after learning all the facts, can only give you his or her opinion regarding the range of a possible jury verdict or reasonable settlement.

In BC, the law allows a person injured by the wrongdoing of another person or company to collect the following types of compensation:
1.      Past and Future Medical Bills
2.      Past and Future Lost Wages or Income
3.      Pain and Suffering
4.      Aggravation of a Pre-Existing Condition (for example, if a problem you had before the accident is made worse by the accident)
5.      Wrongful Death (certain family members are entitled to be compensated when a relative is killed)
6.      Cost of medical care, past and future

 The amount of money to which an injured person is entitled for the various types of damages depends upon many things, including the severity of the initial injury, the degree to which a person recovers from the injury, and the degree to which the person is expected to recover in the future. future medical sots and future income loss claims often require the use of experts who specialize in assessing vocational losses and cost of future medical care. Prior medical issue complicate this assessment.

In a wrongful death case where the injured party dies, the amount of money to which the deceased”s family may be entitled is affected by many things, such as the financial support the deceased provided to the family and whether the deceased and the surviving family members had a close relationship.
Dial a Claim made an appointment for me to see an adjuster tomorrow, two days after my accident.

What harm is there in my speaking to the adjuster and signing a statement he prepares right away?

ICBC may use your signed statement against you later, if even a few words are inaccurate or poorly worded. This is so even if the ICBC adjuster writes out the statement or if you are on medication or suffering post-accident stress when you sign your statement.

You should obtain legal advice before you speak to an ICBC adjuster. If you decide to do this, phone the claim centre you are scheduled to attend and cancel your first appointment for a few days.

Obtaining independent advice is particularly important if:
– you may be even partly at fault for the accident,
– if you ever had pre-accident pain in any part of your body injured in the accident, or
– if you have a complicated loss of income claim.
-if your injuries are serious

You have no legal obligation to ever meet with the ICBC adjuster if you were a passenger, cyclist or pedestrian in the accident. A lawyer can prepare your written statement and benefits claim form and forward them to ICBC.

My adjuster told me I should wait to talk to a lawyer until after ICBC has made me a settlement offer and if I am not happy with its offer. Should I wait? How do I create bargaining clout when I am dealing with ICBC?

Three keys to any insurance company keeping its settlement payouts low are to ensure that:
– claimants do not fully know their legal rights,
– claimants do not have the knowledge to build a strong legal and medical case and
– claimants do not have a viable alternative but to accept the offer of the insurance company when the time finally comes to negotiate a settlement.
It is little wonder that ICBC tries extremely hard to keep injured people from hiring lawyers.

Where liability is potentially in dispute it is crucial that the lawyer be able to investigate the motor vehicle accident as soon as possible after the accident. This requires the immediate hiring of a reconstruction expert to examine the vehicles and the scene and measure the skid marks, gravel on the road, paint marks and other evidence at the scene. The accident reconstruction expert must attend the scene as soon as possible before evidence such as skid marks, etc. disappear. They then use this information to reconstruct the accident using computer simulations, angle of crush, skid coefficients, etc. The objective is to attempt to prove that the other driver was at fault.

Settlement discussions and trial often boil down to a battle of the experts, with the Plaintiff’s experts saying the Defendant is at fault and the Defendant’s experts saying the Plaintiff is at fault. The Plaintiff is at a distinct disadvantage as I.C.B.C. is notified of every claim as soon as the accident happens and generally hires an accident reconstruction expert and engineer to do an immediate reconstruction on any severe claim. If a Plaintiff does not hire a lawyer immediately and waits for six months or ayear after the accident, some of the evidence may be gone by the time the Plaintiff’s lawyer can hire a reconstruction expert. I.C.B.C. often has the car salvaged as soon as possible. When the car is destroyed so is valuable evidence concerning crash impact, seat belt usage and potential product liability cases against the car manufacturer. Important evidence must be secured and witnesses identified and interviewed as soon as possible.

If your injuries are significant, it is wise to obtain legal advice and have your lawyer review your medical evidence and to also reserve a trial date with the courts as soon as possible, even if you have no interest whatsoever in ever going to court. The lawyer will also want to interview witnesses as soon as possible after the accident while their evidence is still fresh in their minds.

The lawyer’s most important role in terms of the claim for damages is to build a strong case during a client’s recovery period. This may last for several years if you are seriously injured. Without this foundation of evidence, it is difficult if not impossible to achieve a good settlement or court award. However, a strong case alone is not usually sufficient to achieve a favourable settlement. The only way a person can create bargaining clout against ICBC is to have a viable and believable alternative to accepting their offer. The only real bargaining clout an injured person has is when ICBC is faced with the real possibility that the person will go to court if settlement cannot be reached. When this prospect creates concerns in ICBC, you have bargaining clout.

Limits of Insurance; What Happens if the Other Driver Has Insufficient Insurance?

Serious injury cases often involve substantial amounts of money in damages. Unfortunately many Defendants do not carry sufficient insurance. There is a "limits problem" when the amount of the potential claim may exceed the amount of insurance coverage that the Defendant carries.
For example, if the Defendant only carries $500,000.00 insurance and the Plaintiff’s claim is worth One Million Dollars, the Plaintiff may only recover $500,000.00 from the Defendant’s insurers and would be left to try and collect the balance from the Defendant personally.
If there is inadequate coverage this can cause severe financial hardship on the injured party and may adversely impact on their ability to pay for the required medical care for the balance of their life. As a result of this the Plaintiff’s lawyer must carefully assess whether there is any possibility that someone other than the other driver may be partially at fault for the accident. This requires a careful review of the circumstances surrounding the accident, including the design and/or maintenance of the road and also the design and maintenance of the automobile. There are numerous product liability cases involving the manufacturers of motor vehicles for improper design and manufacturing defects including rollover cases (roof crush cases), seat belt design cases, seat belt assembly cases, design of the interior of the car and many others.

What is Underinsured Motorist Protection (UMP)?

As described above, when the amount of the Plaintiff’s potential claim may exceed the amount of insurance coverage that the Defendant carries there is a "limits problem" (i.e. the limits of the Defendant’s insurance is insufficient to pay the Plaintiff’s claim). Underinsured Motorist Protection (U.M.P.) provides the Plaintiff with a certain amount of protection for this problem in some situations. The Plaintiff’s lawyer must ascertain immediately whether there is any U.M.P. coverage that may apply and the extent of the coverage.

In general terms if the Plaintiff is a registered owner of a vehicle or is a "dependent relative" of a registered owner of a vehicle then he or she will be covered by Underinsured Motorist Protection of varying amounts. If there is U.M.P. in existence the limits of insurance available for the Defendant will be increased to the amount of the U.M.P. coverage of the Plaintiff. This area is exceedingly important whenever there is a limits problem.

What Are No Fault Benefits?

British Columbia has a partial "no-fault system" which means that an injured person in a motor vehicle accident is entitled to certain benefits even if he or she caused the accident. The system is commonly referred to as "Part VII benefits" or "nofault benefits". The benefits are called Part VII benefits because they are set out in Part VII of the Regulations under the Insurance (Motor Vehicle) Act.
Part VII benefits are comprised of three separate areas:

(i) Medical and rehabilitation benefits.
(ii) Disability benefits for employed persons (i.e. to compensate the individual for wage loss while that person is totally disabled from working) and homemakers.
(iii) Death benefits including funeral expenses and other benefits for survivors.
No-fault benefits are payable regardless of whether the injured person is at fault or not. If a party commences a legal action under our tort system to obtain further compensation, any Part VII benefits received will be deducted from the settlement or judgment.

In certain situations Part VII benefits will be disallowed. For example it has been held that a claimant who had breached the conditions of his insurance policy was not entitled to Part VII benefits (i.e. if he or she is not authorized and qualified to operate the motor vehicle, if the driver/claimant was impaired, if the vehicle was involved in a race or speed test, if the vehicle was involved in an accident to escape or avoid arrest or similar police action or if the vehicle is being used for illegal or prohibited trade or transportation).

If an insured is eligible for benefits under W.C.B. or U.I.C. the amount of these benefits will be deducted from the Part VII benefits payable by I.C.B.C. If the benefits from these other sources exceed the benefits that the claimant is entitled to receive from I.C.B.C., then I.C.B.C. will not be obliged to pay any Part VII disability benefits. These benefits from other sources are deducted even if the insured elects not to claim the benefits from W.C.B. or U.I.C.
If the claimant has a dispute with I.C.B.C. concerning Part VII coverage he may sue I.C.B.C. An action for Part VII benefits must be commenced within two years from the date of the accident or, where benefits have been paid within two years, from the last benefit payment being paid.

This article is by Paul Mitchell, of Pushor Mitchell LLP, Lawyers
Paul acts only for the injured throughout BC, and may  be reached at 250-869-1115, or by e-mail at mitchell@pushormitchell.com