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Canadians Injured or Killed in the US or by Americans

In a subsequent blog, I'll tackle Americans Injured in Canada. In this piece, I'll discuss how a claim for a Canadian is different when it proceeds in the US.

Most BC drivers assume that everyone around them is insured. When they travel in BC, they know that other drivers cannot register their vehicles or obtain license plates without proof of insurance, and the minimum third party liability coverage is $200,000. However, the very small difference in premiums for $1,000,000 in third party coverage means that most people opt for the million. Along with that third party coverage, every ICBC policy includes $150,000 in Part 7 no-fault medical expenses (known as PIP or "personal injury protection" in the US), provision for TTD (temporary total disability) payments to compensate for wage loss and $1,000,000 coverage for UMP (underinsurance, known as UIM in the US).

Not so in Washington State. There, the minimum legal level of third party liability coverage is only $25,000, and many drivers operate a vehicle without any insurance at all. It is a very rare policy that affords coverage of $1,000,000. That's why one of the first things that a Canadian should do if involved in an accident in the US is find out how much insurance the defendant driver has. If you have a serious injury and expect to be off work for some time, you may find that the defendant cannot adequately compensate you for your injuries. Assuming he or she does not have personal assets besides the insurance, you may be forced to pursue ICBC under the UMP provisions of your own insurance policy.

Unfortunately, ICBC can force you to pursue your claim against the Washington driver, if they feel that the defendant has assets against which to enforce the judgment. Typically, when I encounter this situation, I tell defence counsel (spelled "defense" in the US) that ICBC won't allow my client to pursue his or her UMP claim until we can prove that the defendant does not have any assets that couldn't be protected by bankruptcy, and counsel is usually helpful in securing a statutory declaration listing his client's assets. Of course, no one wants to have to take someone else's personal assets to satisfy a personal injury claim-we expect that their insurance will cover it. We also retain a private investigator to conduct an asset search, so we can see if there are other unsatisfied judgments against the defendant.

If you're fortunate to have ICBC consent to proceed with an UMP claim, you can first obtain the defendant's minimum limits, say $25,000 and then proceed with your underinsured claim in BC. The $25,000 would then be deducted from your total claim, along with a number of other deductions that are listed in the regulations, including amounts received from EI, social services, and any disability insurance. Disputes between you and ICBC about the value of your claim under BC law are resolved by arbitration, not in court. The arbitration rules call for the "just, speedy and inexpensive determination of a proceeding on its merits", and therefore, this claim can often be resolved without the complexity and delay involved in proceeding through the court system.

Unfortunately, the UMP claim that evolves out of a Washington accident involves a determination of damages pursuant to BC law. Damages that may have been available in Washington, such as wrongful death damages, discussed in other blog entries, may no longer be available under the UMP claim.

But what if ICBC does not consent to UMP? Or what if the defendant has more substantial insurance? Then it's important to find out exactly what your case may be worth under Washington law. The easiest way to do so is to discuss your claim with a lawyer licensed in Washington, preferably one for whom the majority of his cases involve personal injury, and who has a proven track record of significant settlements and judgments. Some cases can proceed to trial simply with the videotaped testimony of your treating doctor, your own testimony and the support of your family and friends. But more significant cases require the hiring of experts versed in the areas of injury and disability, medical specialists, occupational therapists, vocational rehabilitation advisors, economists, etc. Some also require accident reconstructionists and engineers to discuss the dynamics of the collision and the impact forces involved. It is very important to preserve the evidence at the scene and interview witnesses before memories fade.

The cases that I find most interesting, and the ones for which my firm is ideally situated to assist, are those that involve contacts with both British Columbia and Washington State-for example, where an ICBC insured passenger is involved in an accident in Washington that may have been the shared fault of both a BC driver and Washington driver, where the two drivers may have significantly different insurance policies or the case involves a defective product such as a tire or airbag manufactured in another state. In such cases, we try to utilize the laws of multiple jurisdictions to afford our clients the best possible recovery.

For some cases that seem like they could be tried in more than one jurisdiction, we find ourselves weighing the various types of damages and burdens of proof in order to decide the better place to sue. For an interesting discussion of this weighing exercise in a specific case, please have a look at the Brooks v. Cytodyne case discussed in our Results area US Law for motor vehicle accident in Canada.

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