The Insurance Corporation of British Columbia, ICBC, has the power to settle thousands of car accident cases worth hundreds of millions of dollars every year, profoundly changing the lives of thousands of the British Colombians. Being a personal injury lawyer in Vancouver since 1995 I have settled countless cases with ICBC and in my experience the claimant’s initial response to an ICBC offer can have a critical impact on the outcome of the case. My first instinct is to insist that you speak with a qualified lawyer before you ever consider settling a personal injury claim with ICBC.
An ICBC claims adjuster may make an early offer to settle a claim and your response to that offer, if not made through a lawyer, will put the case into the a negotiating phase. Usually at the conclusion of negotiation phase there is a settlement and the claimant signs a release which prevents any future benefits or money payments from ICBC. Starting the negotiation phase too early in your recovery, if dealing with a personal injury claim, can lead to a poor outcome for your ICBC claim.
1. Respond to an ICBC offer on a “Without Prejudice” basis
In British Columbia the privilege, a special exemption to producing documents, assigned to without prejudice documents or communications is considered a “class” privilege ( See McEachern C.J.B.C., as he then was, at pp 281-282 in Middelkamp v. Fraser valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (B.C.C.A.). As such there can be numerous documents, reports and the like passing between a claimant and ICBC that would be protected by this class privilege. The concept of “without prejudice” developed in the common law and falls within the scope of the law of evidence. The concept has traditionally been applied to limit the admissibility of communications between parties for the purpose of resolving disputes. It is a privilege which has been embraced to allow open discussions regarding settlement of ICBC injury claims so claimants can make and respond to reasonable offers of settlement.
An exception is found where the documents sought are both relevant and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice. In Confederation Life Insurance Co. v. Juginovic (1996), 48 C.P.C. (3d) 60, a decision of Master Barber, for example, ICBC was ordered to disclose parts of a settlement file on the basis that there was no prejudice to either party to the settlement negotiations since all matters between them were settled. You may also disclose some personal documents to ICBC to try to settle the claim only to find these documents are being used against you in court. This is why I suggest any claimant wanting to respond to an offer to settle a personal injury claim with ICBC talk to a lawyer first.
Although a document can be considered without prejudice without the words affixed to the front of the document, it is always good practice to put the words, “without prejudice” either at the beginning or end of any offer made to ICBC.
2. A Response to an ICBC Offer Should Conform with the Rules of Court
The civil rules of court of British Columbia govern offers to settle and responses to offers to settle. The applicable rule is Rule 9-1 and it says that an “offer to settle” means an offer to settle made in writing by a party to a proceeding that has been served on all parties of record, and contains the following sentence: “The …………[party(ies)]…………, …………[name(s) of party(ies)]…………, reserve(s) the right to bring this offer to the attention of the court for consideration in relation to costs after the court has pronounced judgment on all other issues in this proceeding.”
Ensuring your response to the offer is in proper form allows you to argue, if you beat your offer at trial, that you should get an award of double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.
3. Hiring a Personal Injury Lawyer Before and not After Responding to an ICBC Offer
Many successful claimants call me to get some legal advice before they settle and not after. I have written about the difficulty trying to re-open a settled ICBC case and you are best served by a lawyer’s advice when the advice can be put to the best use. Finding out after you settle a case that you should have received much more money or that you could have obtained a few important documents to better your case is often too late.
There is no doubt that if you want detailed advice about your specific claim you will have to pay for a lawyer, as with all professionals. I cannot speak for other personal injury lawyers but I usually will agree to wait until the end of the case to be paid and get paid a percentage and not by the hour.
If your case with ICBC does not involve personal injury and is limited to the damage to your vehicle or insurance premiums issues and you need to respond to an ICBC offer you may still benefit from a short consultation with a lawyer, although retaining a lawyer to fully prosecute your claim may not be necessary.
Posted by Personal Injury Lawyer Mr. Renn A. Holness B.A., LL.B.