ICBC’s misconduct and Bad Faith in Car Accident Claim Results in Punitive Damage Award

This is a Court award Punishing ICBC  $75,000.00 for Bad Faith (McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283) after the BC Supreme Court found the Insurance Corporation of British Columbia’s  conduct to be harsh, high-handed and oppressive and a marked departure from the Court’s sense of decency and fair play.

The plaintiff was  headed  to Abbotsford along Highway 1 and reached  the Mt. Lehman interchange in Abbotsford where the car accident took place.  The plaintiff testified that upon reaching the interchange, she mistakenly exited Highway 1 on the second, rather than the third, off-ramp. As she manoeuvred left, however, she realized too late that she had turned against the flow of traffic.  Before she could rectify her mistake, she collided head-on with another vehicle which was coming from the opposite direction. She admitted to the mistake but ICBC refused to cover the claim of the other driver alleging that the plaintiff was impaired by alcohol at the time of the accident and therefore in breach of her insurance.

The day after the accident the plaintiff ’s father used the ICBC dial-a-claim number to report his daughter’s accident to ICBC.  Among other things, he informed the claim center that his daughter had been driving and “was sore” and that he was not sure when she would be available to attend an appointment.  This information was recorded in the claim file folder maintained by ICBC.

The Court concluded, “that due to inattentiveness the plaintiff missed the road signs which were there to be seen and then seriously misjudged her entitlement to turn left where the second off-ramp intersects with the Fraser Highway.  The weight of the evidence indicates that her substandard driving at the material time was unconnected to her prior alcohol consumption.  The evidence does not establish that the plaintiff was in an impaired state, much less that she was incapable of controlling her mother’s car due to alcohol intoxication when the accident happened.”[para 177]

ICBC continued to refuse the Plaintiff’s coverage alleging that she was impaired by alcohol at the time of the collision. Maintaining this position in bad faith resulted in an award of punitive damages. Importantly, the plaintiff was also entitled to indemnity from ICBC for all claims arising from the accident. The Court harshly criticized ICBC stating,

[263]  This is an exceptional case.  The nature of ICBC’s bad faith behaviour took different shapes throughout the time line.  The overall handling and evaluation of the claim was overwhelmingly inadequate.  ICBC also allowed its objectivity to be tainted by the fact that the claim indirectly involved the “very difficult” Mr. McDonald.  While I recognize that the tainting of impartiality was only slight, it was nonetheless real and improper. 

[264]  In my opinion, ICBC’s conduct was harsh, high-handed and oppressive as those concepts have been developed in the jurisprudence, and marked a significant departure from the Court’s sense of decency and fair play.  Some of the acts of bad faith were inadvertent and others were not and they persisted over a considerable period.  The plaintiff was in a vulnerable position and suffered harm in consequence of ICBC’s misconduct, not all of which is tidily rectified by this Court confirming her right to be indemnified.  ICBC would not be accountable for its bad faith in the absence of an award of punitive damages, which it can well afford.  Such an award is justified to deter other insurers from engaging in similar types of misconduct, and to punish ICBC and condemn its breaches of duty.

[265]  The plaintiff asserts that the calculation of damages should start with the figure ICBC sought to recover from her, being the damages paid to Ms. To, and work up from there.  That approach does not resonate with the Whiten principles.  

[266]  I conclude that, in this case, an award in the amount of $75,000 is appropriately proportionate and rationally accomplishes the objectives of punitive damages.

Posted by personal injury lawyer Mr. Renn A. Holness. Also check out my article about Punitive Damages Award Against a BC Insurer

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