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ICBC Bad Faith Claim Over Motorcycle Photos

This ICBC claimant suffered injuries sustained in two separate motor vehicle collisions. He succeeded in obtaining a $158,142.00 award against the guilty drivers for his injury.

However, he did not have a lawyer and took the unusual step of seeking punitive damages for bad faith against ICBC for the way he was treated. He claimed the behaviour of ICBC was deserving of sanction.(Cunningham v. Greer, 2019 BCSC 1208 )

The essence of the alleged bad faith was the claimant’s unsubstantiated belief that the ICBC estimator took photographs of his motorcycle in such a manner as to downplay the damage to the motorcycle and thereby diminish his claim.

However, the claimant’s evidence was sometimes coloured by his personal view that the ICBC had dealt with him in bad faith. 

The claimant’s position on bad faith weakened as the trial progressed. He initially sought punitive damages against ICBC for bad faith so the court had the address the argument.

The estimator was not called as a witness and the entirety of this argument was based on speculation and conjecture. At the conclusion of the trial, the claimant acknowledged that he may have been mistaken in his belief that the insurer or its counsel or agents had acted in bad faith.

Bad faith does not require malicious intent on the part of the insurer. The elements to establish breach of the duty of good faith were set out as follows:

[201] The following guidelines of good faith emerge from the court’s instructive analysis in Bullock [Bullock v. Trafalgar Insurance Co. of Canada, [1996] O.J. No. 2566 (C.J. Gen. Div.)]:  (1) an insurer must perform a balanced and reasonable investigation and assessment of the first party claim; (2) it must be prompt in handling and assessing the loss; (3) the insurer must assess the merits of the claim in a balanced and reasonable manner; (4) it must give as much consideration to the interests of the insured as it does to its own interests and is not to do anything to injure the insured’s rights to benefits under the policy; and (5) a want of reasonable care in settling a claim suggests an absence of good faith.(McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283 )

There was no evidence of bad faith, either by the ICBC insurer, or its agents or legal counsel. His claim for punitive damages was dismissed.

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Tags: bad faith, punitive damages

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