On behalf of Cross Border Law posted in UMP on Tuesday, April 22, 2014.
One hears a lot about Canada’s socialized-medicine program, but what about socialized-auto insurance? For better or for worse, Canadian auto insurance is handled Province by Province, and the “basic” or mandatory minimum insurance, at least for the Western Provinces, is entirely socialized. The Insurance Corporation of British Columbia (“ICBC”) provides the following insurance package for all licensed British Columbia drivers, all members of their household and all passengers in their vehicle:
- $200,000 in third party auto liability;
- $150,000 in PIP or no-fault medical and rehab expenses; and
- $1,000,000 in UIM or “UMP”.
$1,000,000 in UIM. You read that correctly. Including attorneys’ fees and litigation expenses. You read that correctly.
ICBC tells us that their insured drivers and passengers have been involved in crashes over the past ten years in every single US state and the District of Columbia. We’re talking only about residents of British Columbia. Not every one of them results in a UIM claim, but consider that most states’ mandatory minimums are a lot less than $200,000 per accident. So how does the typical injury victim receive proper compensation for his or her injury in the US? Of course, they don’t. Your policy-limits settlements attest to that.
This article is intended as a primer for attorneys in the US to ensure that they maximize the recovery for their BC clients injured down there.
Seek ICBC’s consent before you accept a policy limits settlement!
When an accident occurs outside of the Province, ยง148.2(6) of the Regulations promulgated pursuant to British Columbia’s Insurance (Vehicle) Act defines the rights and responsibilities of ICBC-insured drivers and passengers who wish to pursue a UIM claim, commonly referred to as “UMP”. Liability issues, including claims for contributory negligence, are to be determined by the laws of the jurisdiction in which the accident occurred, while “quantum of damages” is to be determined by the laws of British Columbia. “Causation”, surprisingly, has been found to fall under the latter category, even though this is one of four elements which commonly comprise “liability” for a negligence claim (duty, breach, causation and the fact that damages occurred or loss was suffered).
Importantly, one must not accept a tort settlement and dismiss a tortfeasor unless and until the UMP claim has been perfected. The only two ways that the UMP claim can be perfected are by judgment in excess of policy limits or ICBC’s consent to a policy limits settlement. Until then, there cannot be a determination that the defendant was in fact “underinsured.” As Mr. Justice Finch stated in Beauchamp v. ICBC (2005) B.C.C.A. 507:
- “Arbitration is not available until it is shown that the person claiming is an “insured”, and is claiming in relation to an accident with an “underinsured” motorist”. The definition of “underinsured motorist”, set out above, contains three elements, A person falls within the definition if he or she: (1) is the owner or operator of a vehicle; (2) is legally liable for the injury or death of an Insured; and (3) is unable to pay the full amount of the Insured’s damages.
- Until those facts are either determined by judicial decision, or by admissions, there is no “underinsured motorist” and the arbitration provisions of the Regulations cannot be engaged.”
What is the limitation for bringing such claims?
The limitation for bringing straight negligence claims in British Columbia is two years from the date of the accident. However, since there can be no determination that a defendant driver is “underinsured” until one of the two determinations above has occurred, the limitation period cannot begin to run until that time. Thereafter, the limitation period is arguably six years for breach of a written (insurance) contract. There is no case law defeating an UMP claim in British Columbia on the basis of a limitation defense.
How does one commence such a claim?
The UMP legislation actually requires the Claimant or his/her counsel to negotiate a settlement of the UMP claim first. If the parties are unable to agree on an amount, the Claimant is at liberty to file a Notice to Arbitrate with the British Columbia International Commercial Arbitration Centre (“BCICAC”) and paying the proper fee. The full process is outlined here: http://bcicac.com/underinsured-motorist-protection/underinsured-motorist-protection-ump-process/
How does one recover attorneys’ fees and litigation expenses?
British Columbia is a “loser pays costs” jurisdiction, whereby the victor in any litigation can recover a portion of the legal fees and all reasonable litigation expenses from the loser. The amount of the attorneys’ fees contribution is calculated by reference to a schedule in the Court Rules. An UMP arbitrator may not award the full amount of a party’s fees, but is granted wide discretion to award a sum of money which may represent a significant portion of the total fees plus all reasonable expenses including expert reports and testifying fees, deposition costs, costs of producing records and the arbitrator’s fees.