The Supreme Court has presented a new interpretation to offers to settle when it comes to ICBC settlement offers(Kobetitch v. Belski,2018 BCSC 2247).
This personal injury lawsuit involved two motor vehicle accidents, the jury awarding the claimant $760,000. ICBC sought costs of the trial based on offers to settle delivered before the trial began.
The first ICBC offer was for the sum of $750,000 plus costs and disbursements. The second ICBC offer was for $750,000 but it deducted $37,048.18 already paid by ICBC and automatically reduced to $700,000 plus costs after 7 days. The significance of the second offer was that it presented a shorter deadline for acceptance, following which the amount of the offer was reduced to $700,000 of additional funds.
The defendants were represented by the Insurance Corporation of British Columbia, ICBC. That fact carried no weight under our current law unless there was proof ICBC used its financial resources in a manner that distorted the litigation process, which did not occur in this case.
ICBC admitted liability at trial and conceded that the at fault drivers were collectively liable for whatever damages may be owing to the claimant.
The claimant recovered $27,000 less than he would have received under the first or second offers, had he accepted prior to the decrease. He exceeded the amount he would have received under the second offer after that by approximately $23,000.
To summarize, pursuant to the offers, the claimant had the opportunity to settle for approximately $27,000 more than he ultimately recovered. He had this opportunity for about 10 days after which it was lost.
The reasonableness of an offer is to be assessed under subrule 9-1(6)(a), according to the judge, at the time it was made, without regard to the result at trial. As Judge Gomery states,
 In my opinion, the wording of the subrule stating this consideration is important. The consideration is not whether it would have been reasonable for the plaintiff to have accepted the offer. It is whether the plaintiff ought reasonably to have accepted the offer. The difference is this. An offer might be such that a reasonable plaintiff could choose to accept it or not. One might term it “a reasonable offer”. On the other hand, to say that an offer ought reasonably to have been accepted is to say that a reasonable person should have accepted it. It was unreasonable to refuse it.
 According to the distinction I am drawing, having regard to the wording of the subrule, the consideration is not whether the offer was a reasonable offer. It is whether it was unreasonable for the plaintiff to refuse it.
There appears to be a false dichotomy created between a reasonable claimant that chooses to accept an offer and a reasonable claimant that chooses to reject that same offer, and still be reasonable. A reasonable claimant can only be reasonable by choosing the reasonable option.
The judge then goes on to find that the claimant did not act unreasonably by taking a chance and proceeding to trial and concluded that the $750,000 offer was not one that ought reasonably to have been accepted by the claimant.
Yet the judge awarded ICBC the costs of the trial and the claimant all the costs before trial. Given that the judge found that it was reasonable for the claimant to reject the offer and proceed to trial the ruling is silent on the legal basis upon which ICBC was awarded costs.
The judge comments at paragraph 55 that ICBC was put to unnecessary expense because the claimant failed to share their assessment and that it would be unfair to require the defendants to pay the claimants’ costs incurred after the offers were served. There is however no analysis of this unfairness under the considerations of the rule.
This case exemplifies how difficult is can be to explain the ramification of an ICBC offer to a claimant. Often the courts decision can be surprising and unpredictable. Legal advice before accepting an offer from ICBC is the best settlement offer advice.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.- serving the injured for over 20 years