ICBC is required to compensate you for death or injury or for damage to a vehicle even if the at-fault motorist is unknown
In terms of vehicle damage, contact ICBC and report the claim but do not try to “pull one over” on ICBC. They may or may not have the vehicle inspected at an ICBC claim center to see if the vehicle damage adds up to the claim presented. Sometimes the police will be asked to review the case as well if there are some questions about a potential fraud.
As to a bodily injury or death claim, although ICBC must cover the damages, the current law requires that you take all reasonable steps to identify the at-fault vehicle and its driver. The reason being, to succeed in a hit-and-run claim, you must show that the identity of the driver and the vehicle involved in the accident were not ascertainable.
Section 24 provides clear reporting requirements. One reporting requirement is that you must provide written notice to ICBC of the accident as reasonably practicable as possible, but no later than six months after the accident. The Courts have interpreted this provision as requiring a motorist to give ICBC notice within days of the accident unless for some reason your injuries preclude you from doing so.
In addition to providing early reporting to ICBC about a hit-and-run accident, you must take positive steps to determine the identity of the at-fault motorist and the vehicle involved in the accident. Section 24 (5) provides that:
(5) In an action against the corporation as nominal defendant, a judgment against the corporation must not be given unless the court is satisfied that:
(a) all reasonable efforts have been made by the parties to ascertain the identity of the unknown owner and driver or unknown driver and
(b) the identity of those persons or that person is not ascertainable.
The courts have interpreted this section to mean that you must take some positive steps to identify the other vehicle and driver. The Courts have found the duty to identify to not only exist at the time of the accident but also in the days after the accident.
At the scene of the accident, if you do not record the information necessary to identify the other driver and vehicle, you may have no claim. That is, if you let the other driver leave the scene without recording plate numbers and driver’s license information thinking the claim is minor in nature, you may lose your right to an ICBC claim. It is only when the other driver fleas the accident scene and you cannot record the information that you have a valid hit-and-run claim.
Even after the initial accident, you must try to ascertain the identity of the other vehicle. At a very minimum you should take the following steps:
- If possible, follow the other vehicle to try to get the license plate information;
- Notify the police at the accident scene and within a short time after the accident;
- Notify ICBC within hours of the accident;
- Place a sign at the accident scene looking for witnesses and the other driver;
- Place an advertisement in the local newspaper and/or Craigslist looking for witnesses and the other driver;
- After a week or two, follow-up with the police regarding the investigation;
- After a week or two, follow-up with ICBC regarding their investigation; and
- If the accident occurred nearby to some buildings, knock on some doors to see if there are any witnesses.
In other words, you are really asked to play detective so that ICBC cannot turn around later and argue that had you taken certain steps, you may have been able to identify the driver and vehicle involved in the accident.
If you meet the initial threshold test, you can then pursue ICBC for payment of damages. If it is necessary to start a lawsuit, you would sue ICBC as a nominal defendant. If the identity of the vehicle and driver becomes known later, you would amend the lawsuit so that you sue the owner and operator of that vehicle.
Like other ICBC cases, all defenses open to ICBC are also available in a hit-and-run claim, including arguing liability, even though the other motorist involved in the accident is not available to testify at trial. The limits on the claim are $200,000 but if the claim is worth more than $200,000 there is a potential secondary level of insurance called underinsured motorist protection (UMP) which can be accessed up to $1 million (or $2 million if you carry excess UMP coverage).
In summary, whenever you are involved in an accident where you cannot identify the driver or owner of a vehicle, it’s very important to make an early report to ICBC and to the police. You also must take positive steps to try and identify the vehicle and the driver of the other vehicle because if you do not, you will not have a claim against ICBC.