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SURVIVORS GUIDE TO ICBC: Understanding the basic procedures, rights and obligations when dealing with ICBC

Article by:  Rose Keith, BA JD Personal Injury Lawyer, Vancouver, BC

History of ICBC

“Building trust, driving confidence” ICBC’s motto

In March 1974 the Province of British Columbia enacted legislation which resulted in a universal, compulsory automobile insurance scheme.  This insurance scheme was and is administered by the Insurance Corporation of British Columbia (“ICBC”).  Until June 1, 2007 ICBC was governed by the Insurance (Motor Vehicle) Act.  On June 1, 2007 the Act was renamed the Insurance (Vehicle) Act (the “Act”).  Under the terms of the Act, every motorist in British Columbia is required to purchase Basic Autoplan insurance from ICBC.  The original intent of developing ICBC was to prevent private insurers from offering automobile insurance.  However in 1976 the legislation was changed to allow private insurers to compete with ICBC to provide coverage beyond the basic coverage that all motorists are required to purchase.  We now have a system in British Columbia where all motorists purchase their Basic Autoplan insurance from ICBC and then have an option of purchasing extended coverage through ICBC or the myriad of private insurers who offer the coverage.

The vision of mandatory Basic Autoplan insurance coverage through ICBC is to ensure that all British Columbians who own and drive a motor vehicle in BC are protected with a basic level of insurance coverage.  The above quotation is ICBC’s motto. Unfortunately over the years the corporation has grown into a vast and multi layered corporation and the experience of many has not been in line with that motto.  The reality is that the administration of insurance coverage is a business, regardless of whether it is a universal system or not. That fact makes it an adversarial situation and accessing benefits is often difficult for individuals.  The existence of a compulsory, universal system of Basic Autoplan insurance does provide protections for members of our province; however, it also creates unique challenges due to the lack of competition in the provision of this service.

Structure of ICBC

ICBC has a complex organization structure that has as many as seven layers of management between the CEO and frontline workers.

ICBC’s 2014 Strategy ICBC has a Board of Directors that is appointed by and accountable to the province. The Board provides guidance and oversight to ICBC’s operations. ICBC’s management reports to the Board and the Board provides approval on all major strategies and policies. The senior management team of ICBC has an executive committee which consists of the President, 10 senior executives and 13 Vice Presidents . ICBC is organized into ten divisions.  Each division is led by one of the senior executives who reports directly to the President and Chief Executive Officer.

ICBC claims are categorized in two ways, Material Damage (non-injury) and Injury claims.  The Injury Claims are handled by risk and complexity.

ICBC recently released its 2014 Strategy.  In describing why a new Strategy for delivery of auto insurance was necessary, the Strategy document notes the following:

• Customers don't believe they’re getting good value for their money, and better drivers want rates that reflect their safe driving; higher risk drivers currently don’t pay enough.
• Customers don’t trust us; many see us as distant and bureaucratic.
• We treat all customers the same because information isn’t available to help us understand their personal expectations and preferences.
• Customers have limited options for interacting with ICBC.
• In the past ICBC has set up policies and procedures that primarily benefit the company, but not our customers.
• Many of our practices and services are seen by customers as unfriendly and not meeting their needs. Consumers in general are getting more and more assertive about their service expectations; if we don’t change, we won’t be successful in the future.

This quotation from the 2014 Strategy tells you a lot about the structure and organization of ICBC. Although they are striving to change, they are a complex bureaucratic organization, driven by policies and procedures which are geared towards protection of the corporation, not of the individuals who are seeking the protection and compensation of the insurance that they have purchased. Any involvement with ICBC is one in which arbitrarily applied policies and principles will govern, with no consideration of an individual’s needs or the individuality of those who have to access available insurance.

The Strategy recognizes that ICBC is the sole provider of Basic auto insurance and driver-related services on behalf of the province and also competes in the optional insurance market. The strategy describes how ICBC is envisioned in the next 10 - 15 years and the steps that will be taken to transition ICBC from its current to the envisioned future state.

The above describes the bureaucratic organization of ICBC. From an individual’s perspective, the more important organizational aspect is the experience that the individual will have in dealing with ICBC in a claims situation. The initial contact that any individual will have with ICBC is through calling a claims centre to report a motor vehicle accident. Typically then you will be seen by an adjuster and likely an estimator will assess the damage to your vehicle. The manner in which the ICBC adjuster handles your claim will be restricted by internal policies and procedures. Most all decisions at ICBC currently are handled in a committee format, where a committee of adjusters and a manager will look at the claim, make decisions regarding what will happen with the claim and make decisions on the limits that are payable to the claimant, absent legal action. These limits may bear no resemblance to what a court would do with the case.

Once you hire a lawyer to represent you in your ICBC claim, the claim will typically be transferred to a more senior adjuster at a litigation claim centre. From my perspective this is a good thing as the more senior adjusters do have a better sense of the proper way of dealing with a claim as well as the quantum of the claim. The claim is paid from the policy of the at fault motorist; therefore, the adjuster is representing that individual, not the person who is making the claim. The adjuster that is responsible for your claim is not there to ensure that you are fully compensated rather they are there to represent and protect the insured, the person responsible for the accident that you are claiming damages from. The role of the adjuster is to ensure that as little as possible is paid for a claim. Their role is to protect the interests of the other involved motorist and the corporation, ICBC.

Once litigation is started, ICBC will hire a lawyer to represent the insured motorist that was responsible for the accident. A part of any insurance with ICBC carries with it ICBC’s duty to defend claims. The lawyer is provided to the at fault motorist at no cost to that motorist. The relationship between the at fault motorist and the lawyer representing him or her is very different from the typical lawyer/client relationship and generally the lawyer will have almost no contact at all with the at fault motorist, rather all contact and instructions on how to deal with the claim will come from the adjuster responsible for the file.

ICBC hires specific lawyers to handle the defense of personal injury and other claims concerning their insured’s. They do not however do so on an ad hoc basis. They require counsel who are performing their defense work to enter into a Strategic Alliance Agreement (the “SAR”). The SAR has a number of requirements including that the lawyer and the law firm that he or she works with must not bring actions against ICBC that include allegations of bad faith or claims for punitive, aggravated or exemplary damages. ICBC also requires that firms acting for ICBC in the prosecution of actions alleging fraud must not act against the Corporation in defending any such actions.

Because of the nature of the SAR, the Law Society of British Columbia, which governs the conduct of lawyers practicing law in British Columbia, requires lawyers that are members of firms that have entered into the SAR to notify potential plaintiff clients of the potential restrictions in their representation that they will face as a result of being a party to the SAR. If a law firm in British Columbia is doing defense work, they are a party to the SAR. If the law firm is doing ICBC defense work, when they act for plaintiffs, the lawyer who is a member of a firm that has signed an SAR will not be able to sue ICBC for bad faith or to seek punitive, aggravated or exemplary damages against ICBC. The SAR states specifically that: “ICBC may impose penalties against the firm....(where) the firm, or any member of the legal team, in the performance of the legal services, fails to act in the best interests of ICBC or ICBC’s insured’s...”

The SAR also states that “members of the legal firm’s team will not directly or indirectly: commence or participate in claims or actions, or counsel or assist others in bringing claims or actions against ICBC which include allegations of bad faith, or claims for punitive, aggravated or exemplary damages.” It is these two clauses that have led to the Law Society mandating that although it is OK for a lawyer to act both for ICBC and for clients who are bringing claims for damages arising from motor vehicle accidents, the lawyer must advise those clients that they are a signatory to the SAR. Being a signatory to the SAR will result in limits to the representation that the lawyer is able to provide.

Although the lawyer hired by ICBC will provide advice to the adjuster on how to proceed and the likely outcome at trial, it is the adjuster that will make all of the decisions in terms of what happens on the case. The adjuster maintains control of the case and often any discussions that our office has regarding settlement of the claim will be directly with the adjuster rather than through the lawyer. The manner in which ICBC has been structured results in the adjuster responsible for a claim being the party that will give all of the instructions to the lawyer on how to proceed with the claim. That adjuster’s ability to provide instructions will be limited by ICBC internal policies and procedures and by the mandate provided to him or her by the various committees within ICBC internally.

Primer on the Legislation Governing ICBC

"Insurance*" means the undertaking by one person to indemnify another person against loss or liability for loss in respect of a certain risk or peril to which the object of the insurance may be exposed, or to pay a sum of money or other thing of value on the happening of a certain event” Definition of “insurance” found in the Insurance (Vehicle) Act.

   A.  Insurance (Vehicle) Act

On June 1, 2007 the Insurance (Vehicle) Act came into force. From the inception of the universal provincial auto insurance scheme, the legislation governing ICBC had been the Insurance (Motor Vehicle) Act. This Act was renamed and modified on June 1, 2007 and the Insurance (Vehicle) Act now governs the policy of insurance that is obtained in British Columbia and the rights and obligations that flow from that policy. The Act governs all auto policies issued in British Columbia. The Act is divided into 6 parts, 2 of which have been repealed.  The parts that are in effect include:

• Part 1 - Universal Compulsory Vehicle Insurance - this is the terms and conditions associated with the Mandatory Basic Autoplan Insurance
• Part 4 - Optional Insurance Contracts - this covers the insurance over and above the Mandatory Basic Autoplan Insurance which can be purchased through ICBC or through private insurance providers
• Part 5 - General provisions - these are terms that apply to both the Mandatory Basic Autoplan Insurance and the excess insurance, regardless of provider
• Part 6 - Vehicle Actions - this section provides basic limitation and rights when an individual is involved in a motor vehicle accident in British Columbia.

The Act defines "accident" in Part 6, section 95 as follows:

"Accident" means an unintentional mishap occurring in British Columbia as a result of which a person suffers bodily injury, death or loss of or damage to property that arises out of the use or operation of a vehicle.

   B.  Insurance (Vehicle) Regulation

In addition to the Act, the Insurance (Vehicle) Regulation (the "Regulations") set out the administrative and coverage details.  The Regulations are divided into 15 parts, one of which has been repealed, which clearly show the scope of the application of the Regulations. The Parts are as follows:

• Part 1 - Interpretation
• Part 2 - Owner’s Certificate
• Part 3 - Premiums for Universal Compulsory Vehicle Insurance
• Part 4 - Driver’s Certificates
• Part 5 - Conditions of Certificate
• Part 6 - Third Party Liability Insurance Coverage
• Part 7 - Accident Benefits
• Part 8 - Third Party Rights Occasioned by Uninsured or Unidentified Motorists
• Part 10 - First Party Coverage
• Part 11 - Special Coverage Certificates
• Part 12 - Fleet plan
• Part 13 - Optional Insurance Contracts
• Part 14 - Vehicle Actions
• Part 15 - Lessor Liability

    C.  Motor Vehicle Act

The Motor Vehicle Act is also legislation which is relevant to motor vehicle accidents occurring in British Columbia.  This act deals with the registration and licensing of motor vehicles, the licensing of drivers and traffic control.

Section 86 of the Motor Vehicle Act provides for the vicarious liability of an owner of a motor vehicle for the negligent driving of his or her family members or others driving his vehicle with his consent.

   D.  Worker’s Compensation Act

An analysis of the legislation which governs ICBC or impacts an ICBC claim would not be complete without an explanation of the role that the Workers Compensation Act has on ICBC claims.  Under the British Columbia Worker’s Compensation Act a worker and his or her dependents forfeit any rights that they may have against any “employer” or “worker” for damages for personal injury, disability or death sustained “on the job”.  This can limit or eliminate rights to claim compensation following a motor vehicle accident.  An individual may still pursue a claim for damages in a motor vehicle accident if the following apply:

• 1) The potential Plaintiff was not a “worker” as defined in the Workers Compensation Act at the time of the accident;
• 2) The potential Plaintiff was not acting within the scope of his or her employment at the time of the accident;
• 3) The potential Defendant was not an “employer” or “worker” ( as defined in the Workers Compensation Act) at the time of the accident, or
• 4) The potential Defendant is the registered owner of a motor vehicle involved in the accident and is neither a “worker” nor an “employer” (even though the driver may have been a “worker” in the course of employment).

Where the Plaintiff’s injury is caused partly by a worker and partly by a non-worker, the Plaintiff can only recover the proportion of damages attributable to the non-worker.

Under the Workers Compensation Board legislation the Plaintiff must make an election to either claim compensation under that Act or to bring a court action against the persons responsible for his injuries. If the Plaintiff intends to claim compensation within the scheme of the Workers Compensation Act, they must make the election within three months of the injury.

   E.  Family Compensation Act

This Act applies to fatal claims.  The Family Compensation Act enables claims to be brought in fatal accident cases for the benefit of the surviving spouse, parent, grandparent or child. The Act limits the types of claims that can be brought in these actions to claims for loss of financial support, loss of household assistance, loss of guidance and companionship, and loss or acceleration of inheritance.  The Act and the compensation available under it require an assessment of the net income that the deceased would have had throughout his lifetime with a deduction for personal consumption and other contingencies.  There are no damages for grief.

Steps you must take when involved in a Motor Vehicle Accident in British Columbia

A.     At the scene of the accident

When you are involved in a motor vehicle accident it can be quite shocking.  You will likely feel out of sorts, you will be anxious and worried about loved ones who were with you in the accident and you may be suffering from injury.  Despite all of this, there are many things that if you do them at the scene of the accident will help you out.  If possible, you will want to do all of the following at the accident scene:

1. 1.  If anyone is injured call 911.  Move the vehicles off the road if possible and out of the way of traffic.
2. 2.  Obtain the name and contact information of all other motorists involved in the accident.  If possible get the following information from all other motorists:
   • a.  Driver’s name, driver’s license number, province/state and contact information;
   • b.  License plate number and year, make and model of the vehicle;
   • c.  If the vehicle is not from BC, insurance details including the name of the insurance company and contact information;
3. 3.  Note the names and contact information of any witnesses at the scene of the accident, including those that may not be supportive of your view of how the accident happened;
4. 4.  Take photos of the resting place of the vehicles involved in the accident;
5. 5.  Take photos of any skid marks or debris;
6. 6.  Write down a brief description of how the accident happened, including creating a diagram if necessary.  Some of the factors to consider include:
   1. The time and date that the accident occurred and the weather conditions at the time;
   2. The specific location of the accident including distance from intersection, lane of travel or location within the intersection;
   3. The direction that both vehicles were travelling;
   4. The resting location of the vehicles.

B.     Reporting the accident to ICBC

When you are involved in a motor vehicle accident in British Columbia regardless of whether the accident is your fault or not, you must report the accident to ICBC.  You can do so by calling Dial-a-Claim.  You can call 24 hours a day, 7 days a week.  The number to call in the Lower Mainland is 604-520-8222.  If you are calling from anywhere other than the Lower Mainland in BC including elsewhere in Canada or in the US, the toll free number is 1-800-910-4222.  You must report the claim by calling Dial-a-Claim if your claim involves a vehicle glass damage only claim, an injury claim, a hit and run claim or a crash which has occurred outside of the lower mainland.

If the claim involves a collision without injury, vandalism or theft you can report the claim online.  The online reporting claim can be accessed on ICBC’s website at www.icbc.com.  After you report online you will be provided with a confirmation number.  Within 24 hours of your submission an ICBC adjuster will post your online claim notice.  The Online Claim Notice will provide you with your claim instructions and if a personal appointment has been considered necessary, the appointment information will also be included in the Online Claim Notice.  You then use the provided confirmation number to access the Online Claim Notice with your claim instructions and appointment information.

When you call ICBC or report the claim online, you will want to have the following information:

• Where and when the motor vehicle accident occurred
• License plate number of each of the vehicles involved in the motor vehicle accident
• Driver’s license number of each of the drivers involved in the motor vehicle accident
• Insurance information for any of the vehicles that do not have British Columbia insurance plates
• Your preferred auto body shop
• The police file number if available

C.     Getting your car fixed

If you have Collision coverage as a part of the insurance for your vehicle, or if the accident is the other driver’s fault, most of the repair costs are covered.

The first step in getting your car fixed following an accident is to have an estimator at ICBC estimate the amount that it will cost to repair the vehicle damage.  Estimates can be done at either an ICBC accredited repair facility or at a claims centre.  When you report the claim to ICBC they will tell you where to go to get the estimate done.  If your vehicle has been towed following the accident it will be kept in storage until an ICBC estimator can estimate the cost of repairing the damage.  If the estimated cost of repairing the damage to your car is greater than the value of the car, the vehicle will be written off and you will be provided with funds to cover the value of the vehicle rather than the repair of the vehicle.

Once the vehicle has been estimated you can take it to a repair shop to have it repaired.  Not all repair shops are ICBC accredited.  You do not have to go to an ICBC accredited repair shop although ICBC encourages you to do so.  There are more than 400 body shops in British Columbia that are ICBC accredited.  If you have your vehicle repaired at a body shop that does not accept ICBC estimates you will have to pay the full cost of the repairs and then apply to ICBC to be reimbursed for the costs that you paid.

After your vehicle has been repaired and you pick it up, depending on the circumstances there may be certain costs that you have to pay to the repair shop including:

• The insurance deductible - this will depend in part on whether you are at fault for the accident.  If a determination with respect to fault has not yet been made you will be required to pay the deductible but this is a cost that may be returned to you after a fault determination is made if you are found not to be at fault for the accident
• If your vehicle had previous damage that was repaired during the repairs from the accident you may be required to pay for a portion of the cost of depreciation
• If you are a GST registrant you will be required to pay for the GST applicable to the repairs.

D.    Fault for an accident and how this effects the cost of your insurance

The adjuster responsible for your file will make the initial fault determination.  They do this after they have collected the information about how the accident happened including by taking a statement from you, the other driver and any witnesses or passengers.  The adjuster may also take into consideration the police report and information received from the estimator.  The adjuster will also take into consideration the Motor Vehicle Act which has provisions which govern the rules of the road. 

 If you are found to be at fault for the accident your third party liability insurance will cover the damages to the other involved motorists.  If you have collision coverage this will pay for the cost of repairs to your vehicle.  You will also be entitled to basic medical and rehabilitation benefits regardless of fault. 

If you are more than 25 percent at fault for an accident the cost of your insurance will go up unless you have a long claims free record.  ICBC provides a discount on the cost of insurance depending on the number of years of claims free driving.  The discount maxes out at 43% and is applicable if you have had approximately 9 years of claims free driving.  Each claim can affect the amount of discount or surcharge that is applied to the cost of your insurance.  ICBC customer service or an autoplan broker can explain in detail to you the discount or surcharge that is applicable to you and how a motor vehicle accident affects the cost of your insurance.

E.     Perfecting the claim for Part 7 benefits

Part 7 benefits are the benefits that every motorist has entitlement to following a motor vehicle accident, regardless of fault.  They are also referred to as “no fault” benefits.  Generally anyone who is injured or killed in a motor vehicle accident in British Columbia, or any B.C. resident who is injured or killed in a motor vehicle accident in North America is entitled to no fault benefits, either from ICBC or from another insurer involved in the accident.  To be entitled to Part 7 benefits you have to “perfect” your claim for the benefits or take the steps that are required by ICBC to apply for the benefits.  Those steps are defined in s. 97 of the Regulations to the Insurance Motor Vehicle Act.  The Regulations provide that you must within 30 days of the accident provide written notice of the accident circumstances and the consequences of the accident.  If the notice is given later than 30 days after the accident ICBC will usually still accept the claim unless the delay has harmed them in some way.

Although all the Regulations require is that written notice be given, typically adjuster’s will ask that the following be provided to complete your claim for Part 7 benefits:

• Provide a signed statement covering all of the accident circumstances; and
• Provide signed authorizations enabling ICBC to obtain medical and wage loss information.

These two things are not required under the Regulations to complete your Part 7 claim and you are not required to provide them.  The purpose for ICBC obtaining a signed statement and the signed authorizations is to assist them in defending a claim for personal injury; it is not needed to determine whether you are entitled to Part 7 benefits.

For information on motor vehicle (e.g. cars, motorbikes) accidents and personal injuries, contact the author of the above article Rose Keith, who is an experienced personal injury lawyer and ICBC claims disputes lawyer, with particular experience in working with clients who have suffered traumatic brain and neuromuscular-skeletal injuries, e.g. spinal injuries resulting in paraplegia, quadriplegia etc.  In 2008 she was the President of the Trial Lawyers Association of BC.  Her web site is at www.rosekeith.bc.ca

Rose Keith, JD RoseKeith.bc.ca
1486 West Hastings St.,
Vancouver, BC,  V6G 3J6
Phone:  604-800-4319
Toll Free:  888.893.6134

see Rose Keith web site re ICBC claims

see Rose's article on cyclist helmets and use to protect from head injuries, at BCpersonalinjury.org...Cyclist-Helmets
see article Motorbike Insurance in B.C. The Importance of Being Properly Insured: What is "Enough Coverage"? at MotorBikeInsuranceICBC.html

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