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Settlement Offer Beaten and Claimant Awarded Double Costs


This successful personal injury claimant was awarded double costs of all steps taken in the lawsuit following an offer to settle he made in the week before the trial (Ostrikoff v. Oliveira,2014 BCSC 842). In ICBC personal injury cases additional costs can be awarded to a party if they beat a reasonable offer made before the trial.
This personal injury lawsuit arose out of a motor vehicle accident which occurred near Peachland, B.C.  The claimant was injured in that accident and the matter proceeded to trial in Kelowna, B.C. over a period of six days (2014 BCSC 531) whereupon damages were awarded to the claimant in the following amounts:

1. Pain and suffering: $105,000
2. Past loss of earning capacity: $95,000
3. Loss of future earning capacity: $325,000
4. Cost of future care: $30,630

Before the trial there were at least four different offers to settle made at various times:
About one year before the trial the claimant sent a settlement proposal offering to settle this action for $325,000 plus costs and disbursements.  The offer took the form of a detailed 7-page settlement brief which reviewed the evidence as it existed at that time and explained in detail the perceived value of the ICBC claim under each heading of  damage. It does not appear however that this offer to ICBC complied with the Rules of Court for seeking double costs.
A few months before the trial the defendant made an offer to settle in the amount of $100,000 plus costs.  One month later the claimant offered to settle the action for $260,000 “new money” plus  costs and disbursements. 6 days later and just one week before the trial the claimant offered to settle the action for $350,000 plus costs and disbursements.  The Judge awarded double costs to the claimant stating,

[15]  In my opinion, the February 17, 2014 settlement offer made by the plaintiff was reasonable and one that ought reasonably to have been accepted by the defendant before the commencement of trial.  A careful assessment of the strength of the plaintiff’s case on the eve of trial, having regard to the expert reports and the proposed lay testimony, as well as the principles of damages assessment in chronic pain cases involving potentially significant loss of capacity would have, and should have, resulted in a conclusion that a recovery at trial of sums in excess of the offer was a realistic prospect.  Instead, relying almost exclusively on tactics limited to cross-examination and putting the plaintiff to strict proof of his case, the defendant chose to proceed to trial to see what might happen.  Defendants are free to litigate the case in such fashion as they consider appropriate.  But as stated in Hartshorne, above, “[l]itigants are to be reminded that costs rules are in place to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer”.

Posted by ICBC Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
 

Tags: icbc case examples, ICBC Settlement, ICBC Settlement amounts, ICBC settlement offers, New Civil Court Rules, offer to settle, Rule 9-1 Offers to Settle, Settlement, settlement offer

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