In this section you will find some helpful tips on making sure your Insurance Corporation of British Columbia (“ICBC”) claim gets started in the right direction especially since a new, and very restrictive, injury “cap” scheme will apply to all accidents on or after April 1, 2019. You will also find some general information about ICBC and how the corporation works. There is also helpful information on what to do if you are the driver being sued because of a motor vehicle accident. Overall, the best starting point is to read through the articles in this section before you begin the ICBC process.
These articles will familiarize you with the ICBC process and give you a general idea of what to expect. If you are unfamiliar with the process, you will be giving ICBC the upper hand in their dealings with you. A lack of knowledge may result in a poor outcome for your claim and likely a “minor injury” designation, giving rise to very limited compensation for your injuries.
ICBC is a unique insurance organization for several reasons:
- ICBC is a Crown or publicly run corporation;
- The administration of the Corporation’s insurance plan is governed by Regulations under the Insurance (Vehicle) Act of British Columbia (the “Regulations”);
- ICBC operates on a not-for-profit basis, though it has run surpluses until recent years, which the government has used to fund general provincial spending;
- ICBC holds a Provincial monopoly for primary auto insurance products, most notably basic Third-Party Liability of $200,000 (Part 6), as well as No-Fault Accident Benefits (Part VII) and basic Uninsured Motorist Protection (“UMP”) (Part 10);
- For optional insurance products, ICBC has a virtual monopoly as it has close to a 90% market share in B.C. on products such as excess Third-Party Liability, Own Damage Coverage (Part 9), and excess UMP;
- ICBC is responsible for the handling of unidentified and uninsured motorist claims in B.C. (Part 8);
- In addition to possessing its own comprehensive computer databases, ICBC has direct access to some of the Motor Vehicle Branch’s databases as ICBC runs that entity;
- ICBC is given wide collection powers when recovering motor vehicle related debts including being able to take away your right to carry vehicle insurance and/or your driver’s license until you repay ICBC;
- ICBC is responsible for the financial costs of more than insurance claims, as the government uses the ICBC revenues to fund road safety initiatives, the Motor Vehicle Branch and other non-insurance programs, which normally would be part of the provincial government budget;
- ICBC lacks the financial and organizational accountability that one would expect from a private company, giving rise to poor public perception of ICBC; and
- As a monopoly auto insurer with comprehensive databases, ICBC has access to a wide spectrum of information they can and will use against you.
In many respects, however, ICBC is very much like other insurance companies. This book attempts to demystify ICBC.
Often, when you are involved in a motor vehicle accident, the element of shock or injury may prevent you from making logical decisions. If possible, try to preserve the evidence as much as possible because you never know what will come in handy.
While at the accident scene, it is helpful if you can obtain the following information:
- Obtain the names, addresses, phone numbers and driver’s license numbers of all parties involved in the accident, regardless of who is at fault for the accident and how minor the accident is;
- Have a look at the insurance of each of the motor vehicles involved in the accident and take a picture to ensure an accurate recording of the names of the registered owner and the insurance details;
- Look at the other parties’ driver’s license and take a picture to avoid being given false information or not recording the information accurately;
- Write down and take a picture of the license plates of the vehicles involved in the accident;
- If a motor vehicle involved in the accident is registered outside British Columbia, make sure you get the name of the insurance company;
- Find out the names and contact information of any witnesses;
- Take a lot of pictures of the vehicle damage and the resting positions of the vehicles; and
- Take some notes about how the accident happened and draw a sketch of the accident scene.
The Motor Vehicle Act requires all individuals involved in a motor vehicle accident to remain at the accident scene to exchange vehicle registration and license information with all parties involved in the accident.
If you leave the scene of the accident without reporting to the police and/or exchanging information with the other parties, you may be charged under the Motor Vehicle Act or may be held in breach of your contract of insurance with ICBC. The later result could cost you tens of thousands of dollars when ICBC comes after you for the money they pay out under a claim.
As an example, if you are in a single vehicle accident, especially at night, the last thing you should do is walk from the scene. ICBC will assume you have something to hide, like impaired driving, and may breach you of your contract of insurance on the flimsiest of evidence. If that happens, ICBC will not cover your vehicle damage and will expect you to pay for all injury claims. Then, you will have to sue them for insurance coverage as otherwise, ICBC’s finding of a “breach of contract” stands despite ICBC having no real evidence to breach you except some element of suspicion. Therefore, the better approach is to call the police and wait for their instructions.
In terms of involving the police, you should call and speak to the dispatcher while at the accident scene if there is obvious injury or death and/or the accident caused heavy damage to the vehicles blocking the roadway. Depending on what the dispatcher hears, the police may or may not attend and investigate the circumstances of the accident. If the police attend, they are required to prepare a police report which ICBC is supposed to get within 10 days of the accident.
Ideally, you or your representative should report an accident to ICBC by calling the ICBC dial-a-claim center or by going on-line at www.ICBC.com, ideally within 24 hours of the accident. You will be asked to provide general information of all vehicle including the make and model of the vehicles, insurance and driver/owner information. You will also be asked for details of the accident and whether you or your passenger(s) suffered an injury in the accident. Specifically, the representative will ask for the following information:
- Your vehicle license plate number and registration;
- The name and the driver’s license number of the person driving your vehicle;
- The name, the license plate and driver’s license numbers of the other vehicle(s)/ parties involved in the accident;
- When the accident happened;
- The location of the accident;
- General details of the accident;
- Your views on liability and whether you will accept responsibility; and
- Details of the injuries to the parties involved in the accident.
Note that ICBC has been known to pursue claimants for fraud if false information is provided in the initial claim reporting process so make sure you are providing accurate information.
If you have been injured in an accident, it is very important to see a doctor as soon as possible to document the injuries. This will not only help you in in your recovery but also help avoid the argument from ICBC that you were not injured in the accident because you never sought early medical treatment.
If you cannot get in to see your regular doctor within 24 hours of the accident, try a walk-in clinic or emergency ward. Waiting a few days to see a doctor after an accident only heightens ICBC’s concerns about your injury claim. After all, according to ICBC, if you didn’t seek immediate treatment how injured can you possibly be?
Section 97 of the Regulation provides that where you claim injury and seeks payment from ICBC for Part VII benefits (no fault benefits); you have certain time limits to make a claim with ICBC:
- Where an accident occurs for which benefits are provided under this Part, the insured shall
- Promptly give the corporation notice of the accident,
- Not later than 30 days from the date of the accident, mail to the corporation by registered mail, or deliver to the nearest claims centre of the corporation, a written report on the accident with particulars of the circumstances in which the accident occurred and the consequences of the accident, and
- Within 90 days from the date of the accident furnish the corporation with a proof of claim in a form authorized by the corporation.
- The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.
Fortunately, ICBC seldom relies on Section 97 to defeat a valid injury claim. That laid-back approach is not guaranteed so you should report to ICBC within the guideline of Section 97.
If the accident involves a driver who you cannot identify (i.e. a hit-and-run claim), there are similar time limits involved which ICBC expects to be followed or ICBC will deny the claim. Please review the section on hit-and-run claims later in the book.
Note that you have a two-year limitation period after the accident to either commence a lawsuit against the at-fault driver or settle the claim with ICBC. There are some exceptions to this rule but if you miss the two-year limitation period you can be rest assured ICBC will close your claim without a pay-out.
You have a two-year limitation period after the accident, or after the last payment under Part VII, to bring a lawsuit against ICBC to compel payment of Part VII benefits. You can use a Section 103 notice directed to ICBC to extend that limitation period without a lawsuit, however.
In summary, when you are involved in an accident, whether it is in British Columbia or otherwise, the best thing to do is make a claim to ICBC as soon as practically possible.
After making the initial report to ICBC, an adjuster may follow-up via a phone interview. The adjuster is looking to determine the details of the accident along with the nature of the injuries. More particularly, the adjuster is trying to find evidence that will help minimize the claim and help place your claim into the “minor injury” category. Such evidence includes pre-accident medical issues, unrelated events, lack of medical care, non-disabling nature of the injuries, etc.
If liability is straight forward against the other driver and there is no injury claim, there is no real risk of speaking with the adjuster if you are called. If you have an injury claim, however, you may wish to avoid an extensive interview unless your injuries are clearly outside the “minor injury” definition. The reason for full disclosure in serious injury cases is you don’t want ICBC placing your claim in the “minor injury” category when it clearly is not a “minor injury” as you would then be required to take positive steps to remove the claim from that category.
You want to avoid signing blank authorizations allowing ICBC access to all medical and wage loss records the adjuster feels are necessary to defend the claim. The adjuster regularly sends unrepresented claimants these authorizations shortly after the claim is opened. Rather, if you do sign authorizations, make sure they are not “open ended” and only request a specific set of documents from a specific service provider.
If you plan to hire a lawyer right away, the lawyer will provide only the necessary information to ICBC thus shielding you from the adjuster. The lawyer will screen the document requests from the adjuster and only provide necessary information.
If you are acting on your own, some ICBC adjusters provide full coverages of expenses early on if you are cooperating fully with their every demand. If you do not allow full access to everything the adjuster requests, many adjusters then turn off the payments because you are not playing “their game”.
Be cautious about the adjuster’s true motive. Some adjusters want to help whereas most others are setting you up to minimize your compensation including establishing evidence to place the claim in the “minor injury” category.
Hiring a lawyer early on to help with the initial reporting avoids the eventual clash when the adjuster is not getting everything he/she wants. The adjuster knows he/she cannot force the lawyer into giving unlimited access to information. Hence, the lawyer acts as a shield in protecting you against unreasonable demands of the adjuster.
In terms of getting your vehicle repaired, in almost all cases, you need to attend an ICBC certified repair shop for the inspection, and not the ICBC claim center. The repair shop will communicate with ICBC to determine what repairs will be covered. ICBC will ultimately authorize the repair of your vehicle, deny some or all the damage claim or write-off your vehicle.
If you have an injury claim, you need to fill out an Accident Benefit Claim Form (CL-22) to pursue your entitlement to disability and medical benefits, which are called Part VII benefits.
When filling out the Accident Benefit Claim Form (CL-22), you are asked several questions including the type of injuries suffered. Make sure the form is complete because if you miss an injury, ICBC is going to point to this document later to question the injury.
ICBC has moved away from getting detailed statements from claimants shortly after the accident. However, if you are self-represented, the adjuster will likely call you periodically to ask you questions on such things as pre-accident health issues, nature of injuries, limits on activities, wage loss, etc. Be as accurate as possible when answering the adjuster’s questions as otherwise, you may create credibility concerns that will shadow the claim going forward.
Overall, you have little obligation to provide a detailed statement to ICBC. The rule of thumb is the less ICBC knows, the better off you are. The only time it is advantageous to fully disclose information to ICBC is if it helps prove your claim is not a “minor injury”, it advances your claim at the time of settlement, it assists you in getting a money advance on your claim or it assists in getting funding for rehabilitation or disability benefits through Part VII.
In summary, if you wish to work with the adjuster on your own without a lawyer, keep in mind that the adjuster is probably trying to build ICBC’s defense case against you, while at the same time leaving the impression that he/she is looking out for your interests. The adjusters are trained to minimize claims, and so the initial dealings have a focus towards that purpose.
Like any big company with thousands of employees, you are going to come across a wide variety of personalities and approaches taken by the adjusters. Usually, your initial claim will be assigned randomly to an adjuster or team of adjusters based on workflow in the corporation. You really do not have a lot of control over which adjuster or team of adjusters is assigned to the file. For all you know, you can be assigned an adjuster on Vancouver Island when you live in the North or vice versa.
While some adjusters are genuinely concerned about injured claimants, you should never assume that the ICBC adjuster is working for you. Although the adjuster may say that you are the customer, the reality of the situation is that the adjuster’s performance is considered, in part, on how little the adjuster spends on a claim.
Two of the criteria under which an adjuster is marked on performance are “allocated expenses” and “severities”. “Allocated expenses” are the amount the adjuster spends per file on such things as ordering doctor reports, investigator fees, defense lawyer costs, etc.… “Severities” is an adjusting term that refers to the amount paid out per file.
Obviously, the lower the “allocated expenses” and “severities” are, the better the adjuster is ranked amongst his/her colleagues. Hence, you are mistaken if you think the adjuster is looking out for you. Unless the adjuster does not care much about performance yardsticks or his/her personal success in saving ICBC money, chances are that the adjuster will be looking to minimize the amount paid out on your claim.
ICBC adjusters wear two hats. The first hat is where they suggest they are working for you to help you with your claim and recovery. The second hat is where the adjusters are trying to minimize the amount paid out to you regardless of what you truly deserve because of your injuries.
When two or more vehicles are involved in an accident and the issue of liability is contentious, ICBC will assign an adjuster to each motorist to determine the apportionment of liability between the motorists. The adjusters will negotiate amongst themselves, in the absence of the motorists, and make an internal decision at ICBC on the apportionment of liability between the motorists.
If you are lucky, your adjusters will interview the independent witnesses in detail and make a reasoned decision. If you are unlucky, the adjusters will take a halfhearted approach to the determination of liability and decide quickly without much investigation.
Contrary to what ICBC may tell you, the ICBC internal determination of liability is not binding on you unless you accept ICBC’s position at face value. Unfortunately, if you do not like ICBC’s internal determination of liability you have the onus of overturning that decision. Without you overturning the decision, the internal decision of ICBC on liability will be the final say on the matter.
You have the option of asking ICBC for an internal review. Alternatively, you can proceed to Small Claims/ Supreme Court on the issue of liability. A lawsuit on the issue of liability requires that you sue the other motorists involved in the accident not ICBC. If the Court decision is different than the one ICBC made internally then the Court decision stands.
Unfortunately, if you want to pursue the issue of liability in Court, ICBC will appoint a lawyer to represent the motorist you are suing as part of ICBC’s duty to defend a motorist carrying ICBC insurance. Therefore, you will be up against a lawyer alone unless you hire your own lawyer.
Ultimately, the amount of expense and time needed to pursue a liability only lawsuit makes it not worth a lawsuit in most cases and you are stuck with ICBC’s decision.
In deciding on whether to dispute liability, you should look at the percentage of fault apportioned against you based on ICBC’s decision. A finding of 25% or less fault against you will not affect your safe driving discount.
The ICBC determination on liability has some bearing on the outcome of your personal injury claim in that ICBC’s position on the claim will be affected by their views on liability. If they feel, for example, you are 50% at fault for the accident then they will only pay 50% of the true value of the claim.
If the personal injury case goes to trial on damages and liability, the finding of liability by the Court will override the ICBC decision.
Of note, if ICBC initially found you 0% at fault for the accident and you have a personal injury claim, ICBC can still pursue a claim of liability against you in your personal injury case. In other words, when it is in ICBC’s best interest, they do not necessarily follow their own internal determination on liability. This fact highlights the inherent inequity in the system when ICBC does not have to follow its own rulings.
Another point is even if you win on liability in Court, trying to get ICBC to refund extra premiums paid is difficult. Getting them to correct your safe driving discount is equally as difficult.
If you have a disagreement with ICBC on liability where an injury claim has not been presented, there are avenues within ICBC whereby you can try to get the decision overturned without suing ICBC. The steps to follow are as follows:
- Step 1 – Speak to a Manager: If you disagree with the liability decision of your adjuster, you should first contact the manager overseeing the adjuster to try to convince him/her that the decision is wrong;
- Step 2 – Claim Assessment Review: If you have already fully exhausted avenues at the claim center and are still dissatisfied with the liability decision, you can launch a review within 60 days of the claim center decision. The review must be in writing, so you will have to provide written submissions with supporting evidence to support the review. ICBC would then have an opportunity to respond to your submissions. Next, an “independent decision-maker” will review the written submissions and conclude which is binding on ICBC but not necessarily you; and
- Step 3 – Lawsuit: If you have gone through the ICBC internal review process and still are not satisfied with the liability determination, you can always sue the opposing driver. ICBC would take over that defense on behalf of the opposing driver. The best venue is Small Claims Court.
Through ICBC’s internal review process, you can also appeal your settlement offer, address how you were treated by the adjuster and/or review the denial of the claim. The main avenue of review is through the adjuster’s manager or a lawsuit but for concerns over the way you are being treated, you can approach ICBC’s Customer Relations Department or ICBC’s Fairness Commissioner
For more information on the ICBC internal dispute process, you can visit www.icbc.com.
ICBC has a monopoly on basic insurance coverage meaning that they are usually involved in almost every motor vehicle accident case out of British Columbia. The basic insurance includes $200,000 Third Party liability coverage and includes a duty to defend a claim. However, on occasion, a non-ICBC insurance company will be required to step in and help defend the claim.
In recent years, British Columbians have been purchasing excess Third Party liability coverage from non-ICBC insurance companies. Generally, you will never find out that the at-fault driver has excess Third Party liability coverage with another insurance company unless you have a serious injury, which could be worth more than $200,000. The reason being, ICBC pays out the first $200,000 of coverage and defends the claim with their appointed lawyer.
In a serious injury claim that could be worth more than $200,000, the non-ICBC insurance company will want to be involved in making decisions on settlement and on the defense. The involvement of the non-ICBC insurance company generally does not affect your claim except ICBC tends to be more careful in defending the claim when they have another insurance company looking over their shoulders. Also, you have the potential of one or more of the insurance companies playing hardball against you.
If you are the driver responsible for the accident and you have collision coverage and excess Third-Party liability coverage with a non-ICBC insurance company, you will have to involve the non-ICBC insurance company with the vehicle repair issues along with any injury or damage claim that is being advanced against you.
Non-ICBC insurance companies can also become involved in accident claims where a motor vehicle is driven into the Province from either the United States or from another Province. The biggest problem you will face is that the non-ICBC insurance companies from outside British Columbia, who have to pay the claim, tend to ignore the claim unless pushed by the claimant Also, British Columbia has a unique injury compensation scheme which is very restrictive in some areas and generous in other areas so the non-ICBC insurance companies may not have the necessary understanding of the British Columbia system and often tries to resist payment of unfamiliar parts of the ICBC compensation scheme.
If the at-fault vehicle is from out of Province and hence, insured by a non-ICBC insurance company, it can cause problems with respect to compensation. This is because you will have to seek compensation from ICBC for Part VII benefits and, compensation from the non-ICBC insurance company for your injury/tort claim. Invariably, the two insurance companies try to point fingers at each other to minimize payments hoping the other insurance company will pay.
Another common problem with non-ICBC insurance companies is the insurer often completely ignores the claim forcing the injured British Columbian to hire a lawyer to get the insurer’s attention.
In summary, whenever another insurance company is involved in the claim, it usually makes the claim more complicated largely because of the interplay between ICBC and the other insurance company.
While some lawyers may suggest you keep a pain diary on a day-to-day basis to record the problems you are having after an accident, the decision to have such a diary is really a personal decision. The difficulty with having such a diary is it focuses you on your problems, which is not a good idea from a psychological standpoint. The advantage of having a diary is that you can refresh your recollection of the events after an accident when you are asked about them years later.
If you choose to use a diary, what you should do, as a minimum, is keep at least a calendar to show when you attended various appointments. The calendar should also note significant events that occurred after the accident such as when your back problems stopped bothering you, when you returned to work, when you saw a specialist, etc.…
Note that if the diary is not kept for the main purpose of litigation and/or on the request of your lawyer, ICBC has a right to obtain a copy of the diary. Once ICBC gets the diary there may be plenty of evidence in it to be used out of context against you in the injury claim such as notes of improvement or recovery.
As part of your insurance coverage with ICBC, you get what is called Third Party liability coverage. The minimum limits you receive through ICBC are $200,000 coverage for damages you cause to others in an accident. You also get access to an ICBC appointed lawyer.
You may use a non-ICBC insurance company to increase the basic limits on Third Party liability coverage or you can use ICBC. As the size of claims arising out of accidents can potentially reach into the millions of dollars, the more Third-Party liability coverage, the better off you are. The reason for this coverage is that if you are sued for damages by another party and you are responsible for the accident, in whole or in part, ICBC will only pay a settlement or judgment against you to the maximum of your Third-Party liability insurance limits. You are personally responsible to pay any excess.
When you receive a lawsuit (Notice of Civil Claim) against you for a motor vehicle accident, do not panic. The best plan of action is to contact your adjuster and notify him/her of the lawsuit. Assuming you have ICBC insurance without any breach, ICBC will take care of everything from that point on. The steps you may be involved in include getting interviewed by the defence lawyer/adjuster, attending an Examination for Discovery to answer questions by the Plaintiff lawyer and/or attending a trial. Remember, full cooperation with the ICBC adjuster and your defense lawyer is essential as to do otherwise means that ICBC can breach you of the contract of insurance. A breach, in turn, would mean you have to pay the entire claim out of your own pocket.
In a situation where you are told by the defense lawyer the claims from the motor vehicle accident may exceed your policy limits, it is recommended that you consult a lawyer about the prospect of personal exposure to a judgment more than the policy limits. At the very least, your lawyer should be encouraging ICBC to try to settle the claim within the policy limits, so that you are not personally exposed to any excess judgment. A good lawyer will set up what is called a “bad faith claim” against ICBC. A bad faith claim is where ICBC does not keep your best interests in mind when they are trying to defend a claim and therefore, personally exposes you to the excess judgment.
If ICBC is denying you coverage for various reasons such as impaired driving, a principal operator breach, failure to cooperate, a false statement, etc.… do not simply ignore ICBC’s denial of coverage, especially if you are responsible for the accident and you caused injuries to someone. The reason being, ICBC may defend the claims being advanced against you and may pay out the judgment or settlement but they will then look to you for reimbursement at the end of the claim. You will receive a letter from ICBC years after the accident saying you owe $X and if you don’t pay them back immediately, they will take away your driver’s license and/or ICBC insurance. By then, you have no grounds to dispute the ICBC debt.
The best thing to do is hire a lawyer and dispute ICBC’s denial of coverage unless there is no hope of getting insurance coverage. This is particularly so if the potential claim against you are very large.
Remember, if ICBC denies coverage, they administer the claims on the assumption there is no coverage and go after you for the amount they paid out under the claims. You have a positive obligation to establish coverage under the ICBC policy and you only have a two-year limitation period to sue ICBC over their decision to deny. In a breach situation, any pay-out by ICBC automatically becomes a debt against you which you need to pay back to ICBC unless you no longer wish to drive or insure a vehicle in British Columbia.
In summary, so long as you have ICBC insurance coverage, in most situations ICBC will take care of defending any lawsuit against you and paying out any judgment up to the maximum of the Third-Party liability policy limits. They will appoint a lawyer to defend you. Your involvement in the case is probably going to be quite minimal.
A limitation period is a deadline before which you must start a lawsuit/notify ICBC. If you do not meet the limitation period, you may lose your right to receive compensation. Therefore, it is very important to keep these limitation periods in mind when pursuing your ICBC claim.
Some of the important limitation periods are:
- For injury claims, you have two years from the date of the injury to start a lawsuit against the at-fault party or settle with ICBC;
- For Family Compensation Act proceedings (i.e. death claims) you have two years from the date of the death of the family member to start a lawsuit against the at-fault party or settle with ICBC;
- Where you are making a claim for a hit-and-run accident, you must give ICBC notice no later than six months after the accident but also when reasonably possible (i.e. don’t delay giving ICBC notice);
- Where a municipality may be liable, in whole or in part, for the accident you must deliver to that municipality written notice of the claim setting out the time, place and way the damage has been sustained. The notice must be received within 2 months of the accident;
- If you want to bring an action against ICBC under your insurance policy (e.g. breach of the contract of insurance cases), you must start the lawsuit within two year of the denial;
- For Part VII/No-Fault accident benefits, you have 30 days to notify ICBC of the accident and 90 days to file a proof of claim (i.e. a CL-22 Accident Benefit Claim form); and
- For Part VII/ No-Fault accident benefits, you have two years to commence a lawsuit after the accident or the last payment under Part VII by ICBC, whichever is later, unless you serve a Section 103 notice onto ICBC in which case the above limitation periods are extended another two years.
If the person that is making the claim is under the age of majority (i.e. under 19) or is legally disabled than the limitation period does not apply (except in Part VII actions) unless ICBC sends a Notice to Proceed which will then initiate the running of the limitation period. This is a formal document ICBC can send by registered mail to the infant/ disabled person to ensure the claim moves forward to litigation.
Note that ICBC has no obligation to notify you of the limitation period. They are very happy if you miss a limitation period and will take advantage of your error. Indeed, these limitation dates are not flexible.
There are rare instances where you will be able to get around a missed limitation period. For example, if ICBC confirms the cause of action by making a tort payment or making a written offer, the limitation period for suing for injuries may be extended. In most cases, however, if you miss the limitation period deadline your injury claim ends.
In summary, don’t put off notifying ICBC initially after the accident of the pending claim. Do not leave your injury claim dangling near the two-year mark after the accident without settling dir