Injury Lawyers Best to Use Court Rules with ICBC Claims

May 8th, 2012

 

When the Insurance Corporation of British Columbia decides to deny a personal injury claim after a car accident, often the only recourse is to file a lawsuit. Depending on the level of court, there are rules that control the court proceeding and claimant  lawyer’s best options are usually assisted by the use of the Rules of Court.

In this post I will outline three Supreme Court rules that personal injury claimants and their lawyers can use to put their best foot forward.

first, getting the insurance policy of the at fault driver.  Rule 7-1 (3)  allows a claimant in a car accident to find out the policy limits on the other drivers insurance policy. As the rule states,

(3)  A party must include in the party’s list of documents any insurance policy under which an insurer may be liable

(a) to satisfy the whole or any part of a judgment granted in the action, or

(b) to indemnify or reimburse any party for any money paid by that party in satisfaction of the whole or any part of such a judgment.

Second, getting documents from ICBC . Rule 7-1(1) requires the ICBC lawyer to list and provide documents that are directly relevant. as the rules state,

(1)  Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,

(a) prepare a list of documents in Form 22 that lists

(i)  all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii)  all other documents to which the party intends to refer at trial, and

(b) serve the list on all parties of record.

Third, Setting a date for the personal injury trial. Rule 12-1 outlines how to set a trial.

For my information about personal injury law in British Columbia take a look at my video about the purpose of personal injury law.

Best plan is to call a lawyer for a free legal consultation before you consider filing a lawsuit. Posted by personal injury lawyer Mr. Renn A. Holness, B.A., LL.B.

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Posted in British Columbia Lawyers, Car Accident Lawyer, How Much Money Will I Get?, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Insurance Claims, ICBC Lawyers, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Settlements, ICBC Truck Accident, Insurance Claim in British Columbia, Legal Advice, Motor Vehicle Accidents, Personal Injury Lawyers BC, Vancouver Personal Injury Lawyer | No Comments »

ICBC Denied Access to Injury Claimant’s Medical Services Plan History Printout in Car Accident Case

March 14th, 2012

The Insurance Corporation of British Columbia in most car accident personal injury claims will try to get the claimant’s Medical Services Plan(MSP) printout. The BC Supreme Court has confirmed again that ICBC is not entitled to the MSP printout in a personal injury case without good reason (Kaladjian v. Jose, 2012 BCSC 357) . This case concerns court applications for production of documents from persons not parties (“PNP”) to the lawsuit ( Rule 7-1(18) ).

This personal injury decision concerned an appeal from a  Master dismissing ICBC’s court application for a copy of the claimant’s Medical Service Plan Claim. The case arose from a car accident injury in BC in which The claimant sought compensation for pain and suffering and loss of enjoyment of life, as well as past and future earnings losses, loss of homemaking capacity and cost of future care and management fees.

ICBC submitted  that in refusing to order the production of the MSP report the  Master was wrong  in his interpretation of Rule 7-1(18) of the  Rules of Court. 

 Further ICBC, through the defendant, submitted  that the decisions of Master Baker in Anderson v. Kauhane, February 22, 2011, Vancouver Registry No. M103201 [Kauhane], and of Master Bouck in Przybysz v. Crowe, 2011 BCSC 731 [Crowe], also refusing the production of MSP reports were wrongly decided.

The Supreme Court disagreed stating at paragraph 88, “In relation to those submissions I have, for all of the foregoing reasons, concluded that if only the defendant has pleaded a pre-existing condition, Master Baker’s and Master Bouck’s decisions in Kauhane and Crowe requiring evidence to support a defendant’s application for the production of MSP records were not wrongly decided.”

 Posted by Personal injury Lawyer Mr. Renn A. Holness 

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Posted in ICBC Bicycle Accidents, ICBC Car Accident, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Insurance Claim in British Columbia, Motor Vehicle Accidents | No Comments »

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

March 2nd, 2012

 

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, Read the rest of this entry »

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Posted in ICBC Car Accident, ICBC Insurance Claims, Insurance Claim in British Columbia, Motor Vehicle Accidents | No Comments »

Injury Claimant Not required to Attend Insurance Company Medical Examination

February 29th, 2012

 

In many ICBC personal injury cases the Insurance Corporation of British Columbia will instruct their lawyers to send claimants for medical assessments. However, in this medical examination denied case (Turnbull v. Yarmohammadi, 2 BCSC 287) the court refused to order the claimant to attend a defence medical examination with a neurologist.  Master Baker pointed out,

[18]  To wait after that point is to — as I think one authority, perhaps Mr. Justice Macaulay used the phrase — “shoehorn” the opinion into a compacted, truncated chronology, i.e., the 42-day limit for a responsive report, when, in fact, it should have been anticipated well in advance of that and it should have been subject to the same 84-day rule.

[19]   Again, nothing in this precludes the defence from delivering a responsive medical report.  It is just as in the Gregorich case, I do not see that it is necessary to do that to direct the independent medical examination.

For a further discussion about the 84 day expert deadline check out my article about top lawyers serving expert reports. Also take a read of my review of Wright v. Brauer ,2010 BCSC 1282. Posted by Personal Injury Lawyer Mr. Renn A. Holness 

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Posted in ICBC Car Accident, Insurance Claim in British Columbia, Motor Vehicle Accidents | No Comments »

How to Make a Hit and Run Personal Injury Claim with ICBC

February 22nd, 2012

The Insurance Corporation of British Columbia controls a fund for personal injury victims injured by at fault hit and run drivers. Without this unique coverage, a person injured by an unknown driver would have no way of getting compensation for the losses due to the negligence of the other driver.

There are strict reporting requirements under the law for a hit and run car accidents and claimants should notify ICBC in writing right away and in any event within 6 months after the accident that caused the bodily injury, death or property damage.  The Insurance Vehicle Act in BC establishes the legal basis for a hit and run claim as follows: Read the rest of this entry »

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Posted in ICBC Car Accident, ICBC Insurance Claims, Insurance Claim in British Columbia | No Comments »

Claimant Awarded Aggravated and Punitive Damages arising from Employers Misconduct

February 2nd, 2012

The claimant was employed as a store manager at the 28th & Main liquor store in Vancouver operated by the Liquor Distribution Branch (the “LDB”) and had worked for LDB for over 30 years. Another employee made a written complaint about the claimant and the LDB terminated the claimant’s employment without notice. The claimant won her lawsuit that she was dismissed without cause, and was entitled to damages for the defendant’s breach of contract for failure to provide reasonable notice of dismissal and  in addition was awarded aggravated and punitive damages arising from the manner of her dismissal(Vernon v. British Columbia (Liquor Distribution Branch),2012 BCSC 133).Aggravated damages are generally compensatory in nature.  In this case the claimant was a long serving faithful employee. The manner of her termination was devastating and caused her serious harm. The court awarded $35,000 in aggravated damages.  

 Unlike aggravated damages punitive damages are directed towards punishment. The leading authority remains Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595 at para. 36(“Whiten”). As the judge stated, Read the rest of this entry »

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Posted in How Much Money Will I Get?, Insurance Claim in British Columbia | No Comments »

ICBC Injury Settlements and the Top Ten Mistakes Made By Car Accident Claimants

January 10th, 2012

 

I have been a personal injury lawyer in British Columbia since 1995 and am always asked to give legal advice about ICBC offers of settlement.  All too often injury claimants call me at best at the final hour or when it is too late to save a critical element of the car accident case. I certainly do not speak for every lawyer in BC when I reveal this list and  it is based on my own experience as a personal injury lawyer- so here are the top 10 mistakes ICBC injury claimants, without lawyers,  make when trying to settle a personal injury case: 

1.  Failure  to get proper legal advice- most personal injury lawyers will agree to talk with a claimant for free initially and may take the case on percentage. Find out more about how to hire a personal injury lawyer;

2.  Failure to provide the evidence required to prove a loss of opportunity to earn- Loss of income after a car accident injury can often be lost if the proper documentation is not maintained;

3.  Making an offer to the Insurance Corporation of British Columbia, ICBC, to settle the case without verifying if the offer is reasonable-  The claimant may be making an offer that is too low without even knowing it. Understanding what can be claimed and what the case is worth before negotiation will help get the injury case settled for a reasonable sum of money;

4.  Overvaluing future loss of earnings- If a claim is being made for future loss of earnings, the law in BC requires that the amount be reduced by 2.5%. Furthermore, defendants that are insured by ICBC only have to pay net loss of income and not gross loss of income to the injury claimant; Read the rest of this entry »

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Posted in British Columbia Lawyers, Car Accident Lawyer, Hiring a Personal Injury Lawyer, How Much Money Will I Get?, ICBC Insurance Claims, ICBC Lawyers, ICBC Settlements, Injury Attorneys, Insurance Claim in British Columbia, Legal Advice, Personal Injury Lawyers BC, Vancouver Personal Injury Lawyer | No Comments »

Personal Injury Award Reduced Due to Prior Back Pain and Fault for Car Accident

January 3rd, 2012

 

In this ICBC Langley personal injury claim (Shinkaruk v. Crouch,2011 BCSC 1762) a pickup truck collided with the claimant’s car in the intersection of 96th Avenue and Telegraph Trail.  The weather was clear, visibility was good and the streets were bare. The claimant’s evidence was that he pulled up to the sidewalk and looked to his left and there was only one vehicle approaching from that direction, the pickup truck that was was two or three blocks back.

The claimant had a green light and began to  move into the intersection but  the the pick-up truck sped through a red light hitting the claimant’s car.  The judge found the most probable explanation for what happened is that the claimant did not bother checking again because his light was green but if he had taken the time to look, the defendant’s pickup truck  would have been perceived by him as a hazard.  As stated by the Judge, “ However, the greater negligence, I find, rests with the defendant, who entered the intersection on a red light and who was speeding. The evidence also suggests that his rear brakes were not properly functioning.  I assess the defendant’s liability at 80%.”

The injury claimant was a 48 year old ironworker with a significant history of low back pain, including absences from work.  Eight months following the car accident the injury claimant’s family doctor assessed the claimant for the Insurance Corporation of British Columbia, ICBC. His orthopedic and neurological examination of the claiman’s lower back was normal and unremarkable. There was palpatory tenderness only across the thoracic spine, none across the lumbar spine and the claimant’s complaints were noted as “occasional low back pain”.

The judge awarded the injury claimant a total of $66,558.96 broken down as follows:

Pain and suffering:                    $45,000.00

Net Past Income Loss:            $20,522.95

Out-of-pocket expenses:        $  1,036.01

Posted by personal injury lawyer Mr. Renn A. Holness, B.A. LL.B. member of the Trial Lawyers Association of British Columbia

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Posted in Back Pain, How Much Money Will I Get?, ICBC Car Accident, ICBC Insurance Claims, Insurance Claim in British Columbia, Motor Vehicle Accidents, Soft Tissue Injury, Whiplash Claims | No Comments »

How Can I Force ICBC to Pay for my Physiotherapy after a Car Accident Injury?

December 21st, 2011

I have been a personal injury lawyer in Vancouver since 1995 and have witnessed the change in how the Insurance Corporation of British Columbia, ICBC,  pays for physiotherapy. I have written and dealt extensively with ICBC accident benefits and explain how ICBC accident benefits work for people that are injured in car accidents in British Columbia. Take some time to read my other articles on this subject.

Physiotherapy is considered a mandatory benefit that ICBC must pay if you are insured and the treatment is medically necessary. If you are a BC resident and your vehicle is registered in BC then you should be covered by these injury benefits after you have been injured in a car accident.  The best way to ensure ICBC will pay for your physiotherapy is to get your doctor to confirm in writing the need for the treatment and the fact the the need arises for your car accident injuries.

ICBC is only required to pay for 12 physiothary treatments unless a medical practitioner confirms in writing that more treatments are needed. If ICBC does not think that the expense is reasonable and refuses to pay for the treatment the dispute has to be submitted to arbitration. In my personal injury practice we do very few if any arbitrations given their cost and delay.

Section 88(1) of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83, provides that the Insurance Corporation of British Columbia shall pay an insureds benefits defined as “all reasonable expenses incurred by the insured as a result of the injury for necessary” services, therapy, or treatment as set out in the Regulation.  Physical therapy is one of the included therapies.  Payments under s. 88 are commonly referred to as “no-fault benefits”.

If ICBC does not start the arbitration process within a reasonable time after the denial, you can sue ICBC in Supreme Court to get a court order forcing ICBC to pay. 

Most claimants call me frustrated that the ICBC adjuster refuses to pay for physiotherapy despite the family doctors recommendation. Section 88(1) does not confer on the ICBC adjuster the power or right to decide whether the claimant is legally entitled to accident benefits.  Regardless of the adjuster’s view, it is open to you to sue ICBC for its failure to provide benefits.  It is, however, open to ICBC, to challenge the claimant’s assertion that the treatment is necessary and reasonably priced.  That position might be taken, for example, based on separate medical evidence obtained by ICBC (see Tiessen v. ICBC, 2008 BCSC 1822).

 An ICBC adjuster is not qualified to express a medical opinion and if your benefits have been denied despite the opinion of your doctor you should contact a personal injury lawyer right away.  Consider hiring a lawyer to prosecute your injury claim so you can focus on your recovery. Posted by Mr. Renn A. Holness

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Posted in Hiring a Personal Injury Lawyer, ICBC Bicycle Accidents, ICBC Car Accident, ICBC Insurance Claims, ICBC Motorcycle Accident, ICBC Pedestrian Accident, ICBC Truck Accident, Insurance Claim in British Columbia, Motor Vehicle Accidents | No Comments »

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