ICBC Claim: How to Navigate

The simplest way to explain how a motor vehicle ICBC claim is handled is to divide it into two categories: (1) accidents that you are at fault for, and (2) accidents that are the fault of someone else.  When you are injured in a vehicle accident that is your own fault, the Insurance (Vehicle) Act requires ICBC to pay you minimum mandatory benefits regardless of your fault for the accident.  These are called “no-fault benefits”.  On the other hand, when you are injured and someone else is at fault (even partly), you can claim no-fault benefits, but importantly, you can ALSO claim under the other driver’s insurance policy for any compensation that is not provided by your own “no-fault benefits”.  This ICBC claim against the other driver is called a “tort claim”.  This is an important difference because the benefits provided by your own no-fault insurance (as described below) are minimal compared to the benefits you are entitled to from the insurance policy of the other driver by making a tort claim.  As such, it is important to understand which benefits apply to your ICBC claim.

Your No-Fault Benefits

No-fault benefits are available to you even if you cause an accident, for example, you slide off the road and crash into a tree and break your leg, or you rear-end someone and hurt your neck.  No-fault benefits are provided to anyone who is injured as a result of the “operation of a motor vehicle” in B.C., whether they are in the vehicle or not (you might be a pedestrian or a cyclist struck by a vehicle).  However, in order to qualify for no-fault benefits you must either have a B.C. driver’s licence or live with someone who does.  At law, ICBC must provide up to $150,000 in no-fault benefits.  Sounds good, right?  Unfortunately, no-fault benefits are more limited than they sound and are restricted to two primary forms: temporary wage loss supplements and partial rehabilitation benefits.

If your injuries cause you to lose time at work, no-fault benefits only pay up to (a maximum of) $300 per week of lost wages.  However, they will only pay this if all other sources of income replacement (EI, CPP, short or long term disability) have not already replaced 75% of your pre-accident income. For example, if you were making $1,200 per week prior to the accident, and after the accident your short term disability was paying you $800 per week, ICBC would only pay you an additional payment of $100 per week, for a total of $900 per week.  In many cases, this shortfall makes it tough to pay the mortgage, food and other family expenses.  Also, this temporary wage loss replacement only lasts for 104 weeks before it is permanently terminated.

In addition to some temporary wage loss replacement, no-fault benefits also provide limited rehabilitation expenses (again, part of the global $150,000 cap on no-fault benefits).  These expenses are largely at the discretion of ICBC, although, they are intended to be funded whenever “medically necessary”.  Rehabilitation expenses may include physiotherapy, massage, chiropractic and other medical treatments.  No-fault benefits also provide funding for an injured person’s inability to care for themselves (nursing care) as well as caring for their household (for example, yard work).  Obtaining approval for payment of these benefits can be difficult and where they are improperly denied, the only recourse is to sue ICBC for breach of your no-fault benefits.  Unfortunately, this is common.

Your Tort Claim

A “tort claim” refers to the ability to sue someone for your losses caused by their negligence.  In a motor vehicle accident caused by another driver, or at least partly caused by another driver, you have a tort claim against them (which their insurance will cover) to the extent they are at fault.  The amount of compensation available to you will depend on the extent of your injuries, what effect they have on your life, and the amount of insurance carried by the other driver.  Most drivers carry at least $1,000,000 in insurance (per collision).  However, if a person owns significant assets (such as a house) in the same name as the vehicle driven by them, I recommend carrying at least $2,000,000 in insurance for the additional cost of about $75 per year.

Importantly, in a tort claim, the types of compensation you can claim are not limited by the same categories as under your own no-fault benefits. Remember, you are suing the other driver for their negligence (which is why they have insurance in the first place), and you are entitled to be put in the same financial position you would have been in had the other person not injured you.  As a result, you are entitled to payment for all of your lost wages, your medical expenses, your future loss of earnings due to disability, as well as the pain and suffering for the general effect that the injuries have on your life.  While the prospect of going to court often deters people from making a claim, it should be known that most people are able to get fair compensation through negotiation and more than 95% of cases settle out of court.

Tips for the Injured

While there are hundreds of worthwhile tips to convey to the injured person about navigating their motor vehicle ICBC claim, here are the most important, given the space available:

1. Don’t be afraid: if you are injured by another person, remember the purpose of their insurance is to compensate for accidental loss (an injury such as yours).  That insurer has been paid to provide insurance coverage.  Don’t be ashamed of asking an insurer to fulfill their obligation.  In most cases, the person who injured you will be unaware their insurer is paying for your recovery.  If you are injured, don’t play the tough guy and pretend you are not hurt.  In the event your injury does not resolve and you have not made an ICBC claim, you lose the right to do so two years after the accident.
2. Be careful of what you say: remember, although ICBC is your insurer for your no-fault benefits and the insurance adjuster may seem keen to participate in your healing and recovery, that adjuster simultaneously represents the interests of the driver who injured you, and will be guided by the objective of paying as little compensation as possible.  This problematic conflict is typically resolved when the injured party hires a lawyer and the lawyer controls what personal information the adjuster has access to.
3. Follow your doctor’s advice: following your doctor’s advice will typically speed in your physical recovery. You also have an obligation at law to take reasonable steps to speed your recovery, which means following sound medical advice.
4. Keep good records, when you can: your compensation, by negotiated settlement or court judgment, will depend on the quality of medical and financial records you have.  Ensure your doctor is keeping good records of your treatment and recovery.  If you are pursuing past or future wage loss, records of your historical income are useful but not necessary (for example, not all your income may be reported).
5. Don’t be bullied: if you do not have experience or the help of a person familiar with what is fair compensation for your injuries, don’t be bullied by an insurer into taking a settlement you are unhappy with.  There are many lawyers who provide free consultations and they can confirm whether you are on the right track, or help you get on the right one.

If you have a question about this topic or another legal issue, contact us for a legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.