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Dispute of Insurance contract with Insurer

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发表于 10/19/2019 14:57:28 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 10/19/2019 15:51 编辑

Grant v. ICBC
Collection
Small Claims Decisions
Date
2019-07-19
Neutral citation
2019 BCCRT 881
File numbers
SC-2018-009479
Decision type
Summary Decision





Date Issued: July 19, 2019
File: SC-2018-009479
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Grant v. ICBC, 2019 BCCRT 881
BETWEEN:
Katlin Grant
APPLICANT
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Andrea Ritchie, Vice Chair
INTRODUCTION

1.      This is a summary decision about whether the Civil Resolution Tribunal (tribunal) should refuse to resolve this dispute under section 11(1)(a)(i) of the Civil Resolution Tribunal Act (Act).

2.      Section 11(1)(a)(i) of the Act says the tribunal may refuse to resolve a dispute if it considers that the dispute would be more appropriate for another legally binding process or dispute resolution process.

3.      For the reasons set out below, I refuse to resolve this dispute.

4.      Only the evidence and submissions relevant to this decision are referenced below. This is not a final decision as to the substance of the merits of the dispute.

5.      The applicant, Katlin Grant, is represented by Marc Scheirer, legal counsel. The respondent insurer, Insurance Corporation of British Columbia (ICBC), is presented by Rory McMullan, legal counsel.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the tribunal. The tribunal has jurisdiction over small claims brought under section 118 of the Act. The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

7.      Under section 61 of the Act, the tribunal may make any order or give any direction in relation to a tribunal proceeding it thinks necessary to achieve the objects of the tribunal in accordance with its mandate. In particular, the tribunal may make such an order on its own initiative, on request by a party, or on recommendation by a case manager.

ISSUE

8.      The issue is whether I should refuse to resolve this dispute.

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, the applicant bears the burden of proof on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

10.   This dispute is about coverage under a contract of insurance. The applicant, Katlin Grant, was the driver and registered owner of a vehicle that was involved in an accident on January 7, 2017. The respondent insurer, ICBC, concluded Mr. Grant was in breach of his insurance contract by misrepresenting the principal operator on his insurance policy. As a result, ICBC determined Mr. Grant was not entitled to the replacement value of the vehicle that was written off during the accident.

11.   Mr. Grant implicitly seeks a finding that he did not breach his insurance policy, and seeks $3,000 in compensation for the replacement value of his vehicle.

12.   During the course of this dispute, the other driver involved in the January 17, 2017 accident started an action in the British Columbia Supreme Court (BCSC) for personal injury damages. Liability is contested by both Mr. Grant and the other driver. The other driver is not a party to this tribunal dispute.

13.   In his reply submissions, Mr. Grant requested that this dispute be joined with the BCSC action to avoid conflicting decisions. As the issue was only brought up in reply, I invited both parties to provide additional submissions about whether the tribunal should refuse to resolve this dispute.

14.   Mr. Grant says the issues in the dispute before me overlap with the issues in the BCSC action. Namely, that in order to determine whether Mr. Grant is entitled to reimbursement of the replacement value of his vehicle, I will need to determine who was liable for the accident, and whether Mr. Grant is entitled to coverage under his contract of insurance. ICBC says that it is not a party to the BCSC action, and that the dispute before me is solely one of breach of contract.

15.   I agree with Mr. Grant that in the circumstances, if I were to find he was not the principal operator, I would likely then need to make a liability assessment between Mr. Grant and the other driver. Yet, the BCSC action would also require a similar liability assessment. This creates a potential for conflicting decisions about liability between the tribunal and the court. The accident occurred before April 1, 2019, so the tribunal does not have jurisdiction over the other driver’s claim for personal injury damages, as I infer it is well over the tribunal’s small claims $5,000 limit. The only recourse for the other driver is through the court.

16.   Additionally, the potential monetary impact of the decision flowing from this tribunal dispute is likely above the tribunal’s $5,000 limit. I say this because in the event I find Mr. Grant did breach his insurance in failing to disclose he was the principal operator, he would forfeit his right to insurance coverage for the accident. This means that Mr. Grant would be personally liable for any damages assessed by the court in the BCSC action, which would likely be in excess of $5,000. Therefore, any findings made in this dispute would have overlapping implications in the BCSC action.

17.   As noted above, section 11(1)(a)(i) of the Act provides that the tribunal may refuse to resolve a claim or dispute if it considers the claim or dispute would be more appropriate for another legally binding process or dispute resolution process. Given the potential for conflicting decisions on liability, the limited jurisdiction of the tribunal for motor vehicle accidents before April 1, 2019, and the overlapping findings with the BCSC action, I find it is most appropriate to refuse to resolve Mr. Grant’s claim against ICBC. If there are claims that are not determined through the court process, it is open to Mr. Grant to file a new dispute with the tribunal.

18.   For these reasons, I refuse to resolve Mr. Grant’s claims against ICBC, pursuant to section 11(1)(a)(i) of the Act.

19.   In the particular circumstances of this dispute, I find it is appropriate to refund Mr. Grant’s tribunal fees.

ORDER

20.   Pursuant to section 11(1)(a)(i) of the Act, I refuse to resolve this dispute.

Andrea Ritchie, Vice Chair





 楼主| 发表于 10/19/2019 14:59:55 | 显示全部楼层
本帖最后由 郭国汀 于 10/19/2019 16:33 编辑

Jameson et al v. Insurance Corporation of British Columbia
Collection
Small Claims Decisions
Date
2019-09-23
Neutral citation
2019 BCCRT 1119
File numbers
SC-2019-001840
Decision type
Final Decision





Date Issued: September 23, 2019
File: SC-2019-001840
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Jameson et al v. Insurance Corporation of British Columbia,
2019 BCCRT 1119
BETWEEN:
TAYLOR JAMESON and ROCKY JAMESON
APPLICANTS
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Kathleen Mell
INTRODUCTION

1.      This is a small claims dispute about a motor vehicle accident that occurred on July 2, 2018. One of the applicants, Taylor Jameson, and a third party not named in this dispute, D, were travelling in opposite directions along a narrow driveway when their cars collided. D is Taylor Jameson’s aunt. The applicant Rocky Jameson is Taylor Jameson’s father and heard the accident happen. The applicants allege that D is wholly responsible for the accident because they say she admitted fault. The applicants are represented by Taylor Jameson.

2.      For ease of reference, given the applicants share the same last name, I will refer to Taylor Jameson as “Taylor” and to Rocky Jameson as “Rocky.”

3.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded that Taylor was 50% at fault for the accident. The applicants say ICBC should have found D 100% responsible for the accident and that ICBC breached its statutory obligations in investigating the accident and assigning fault. They seek a declaration that D was 100% at fault. The applicants also request payment of $2,421.97, which is the other half of what the applicants say the car was worth, as well as $2,578.02 compensation as “reversal” of the 50% “at fault claim” against Ms. Jameson, for a total of $4,999.99.

4.      ICBC says it is not a proper party to the claim and that D should be substituted as respondent. It also claims that Rocky should not be named as an applicant as he was not the owner, driver, or principal operator of the vehicle Taylor was driving at the time of the accident.

5.      ICBC says it assigned fault 50-50 under the Motor Vehicle Act (MVA) because Taylor was driving on the wrong side of the driveway. ICBC is represented by an employee.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

7.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, this dispute amounts to a “they said, it said” scenario with both sides calling into question the credibility of the other. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I therefore decided to hear this dispute through written submissions.

8.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

9.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA: a) order a party to do or stop doing something, b) order a party to pay money, c) order any other terms or conditions the tribunal considers appropriate.

ISSUES

10.   The issues in this dispute are:

a.    Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

b.    Who is liable for the accident? If not the applicants, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

11.   In a civil dispute such as this, the applicants must prove their claim. They bear the burden of proof on a balance of probabilities.

12.   I will not refer to all of the evidence or deal with each point raised in the parties’ submissions. I will refer only to the evidence and submissions that are relevant to my determination, or to the extent necessary to give context to these reasons.

13.   As mentioned, ICBC takes issue with Rocky being named as an applicant as he is not the owner, driver, or principal operator of the vehicle Taylor was driving at the time of the accident. The applicants have provided no evidence to suggest that Rocky was involved in the accident or that he has an interest in the car. Taylor says that Rocky heard the collision but does not suggest he was in any way involved. Rocky did not provide a witness statement to ICBC or to this tribunal. I also note that the requested resolution is for Taylor to be reimbursed and not Rocky.

14.   Due to a lack of evidence, I dismiss Rocky’s claims against the respondent.

Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

15.   As mentioned above, Taylor seeks an order overturning ICBC’s internal liability assessment and she requests payment of $4,999.99. To succeed against ICBC, Taylor must prove on a balance of probabilities that ICBC breached its statutory obligations or it contract of insurance, or both. The question is whether ICBC acted “properly or reasonably” in administratively assigning 50% liability to Taylor (see: Singh v. McHatten, 2012 BCCA 286).

16.   ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and in its decision about whether to pay the claim (see: Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55 and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency or a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information” (see: McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283).

17.   In the course of its investigation, ICBC spoke with Taylor who originally said that she was going down the driveway and was just coming up to a blind corner to the right. She said she was on the “left side of the driveway” and saw D’s car coming up the driveway. Taylor said that she stopped but D did not have time to stop and D hit her car resulting in a big dent in the center of Taylor’s car’s front bumper. Taylor said that D sustained damage to the left, meaning the driver’s side corner.

18.   According to ICBC’s records, D told ICBC that she was going up the driveway and that there was a blind corner so she did not see Taylor coming down. She said she was able to slow down but not completely stop and she collided with Taylor’s vehicle. She agreed Taylor’s car was damaged in the front middle area and her car was damaged on the driver’ side front bumper, headlight, and fender.

19.   ICBC apportioned 50-50 liability based on the parties’ statements and the location of the damage done to the vehicles, specifically that Taylor’s vehicle was damaged in the center and not the side. ICBC determined that this meant that Taylor was not properly driving on the right hand side of the driveway.

20.   Taylor says that ICBC failed in its duty to assess liability under the insurance contract. She alleges that ICBC ignored evidence from D that established she was 100% liable. She says that D told ICBC that she was wearing flip flops and her foot slipped off the brake and that she admitted 100% liability.

21.   As indicated above, in her initial statement to ICBC Taylor said that she was travelling on the left hand side of the driveway. In her application for an ICBC claims assessment review, she said that what she meant by this was that she was on the left hand side of the vehicle she was driving and not the left hand side of the road. She also alleged D was speeding and she was travelling slowly and able to come to a complete stop.

22.   It is undisputed that there were no independent witnesses who saw the accident.

23.   ICBC denies that D told them that she was 100% liable or that her foot slipped off the brake. ICBC admits that D called them after the assessment of liability to tell them that Taylor was not happy about the assessment but she did not say she was 100% liable. ICBC did not provide a contemporaneous record of this call.

24.   ICBC states that it assessed liability based on section 154 of the Motor Vehicle Act which says that a driver must drive on the right hand side of the roadway when meeting another vehicle that is moving. Also, when meeting another vehicle that is moving, a driver must drive the vehicle so that the other vehicle is able to travel in at last half of the main travelled potion of the roadway as nearly as possible.

25.   As noted, Taylor appealed the ICBC internal assessment and the review arbiter agreed that the evidence was unclear as to where the parties were travelling on the narrow driveway and that Taylor might have been driving in the middle based on the damage to her vehicle. The arbiter did not find that she was driving on the right as required by law. He also found that the evidence was unclear as to the speed involved. The arbiter also noted that both cars could have swerved to avoid the accident. The arbiter decided that in the absence of police attendance or investigation and with no independent witnesses it boiled down to a she said/she said scenario and therefore upheld the 50-50 liability assessment.

26.   Given the overall evidence, I find that ICBC did not breach its statutory obligations or its contract of insurance. The evidence indicates that ICBC carried out a diligent, fair, thorough and objective investigation, including at the claims review assessment stage. Taylor suggests that ICBC acted unfairly when it did not take into account D’s alleged admission that she was 100% liable. However, she has provided no proof that D said this. I find ICBC acted reasonably in administratively assigning Taylor 50% responsibility for the accident.

27.   Having determined that ICBC acted reasonably in its examination of the accident, I turn now to my assessment of liability.

Who is liable for the accident?

28.   Turning to the facts in dispute, I do not accept Ms. Jameson’s statement that when she told ICBC she saw D’s car coming because she was on the left hand side of the driveway she actually meant she was on the left hand side of the car. It is obvious that the driver’s seat is on the left in North American vehicles. It does not ring true that Taylor felt obliged to point this out. Rather, in the context of her statement, it makes more sense that Taylor was referring to the fact that this was a blind corner on the right so she decided to drive on the left hand side of the driveway so she could see if anybody was coming.

29.   Therefore, based on Taylor’s statement, and the location of the damage to the vehicles, I find that Taylor was not driving on the right hand side of the road as required under the MVA.

30.   As noted above, the applicants brought this claim against ICBC only, and not the driver/or owner of the other vehicle, D. In Kristen v. ICBC, 2018 BCPC 106 the court said that the proper defendant in an action to determine liability in a motor vehicle accident is the other driver and not ICBC. However, rather than dismissing the claim for not having named the other driver, the court allowed the claimant an opportunity to amend his Notice of Claim and add the other driver as a defendant. I note that ICBC stated in its Dispute Response that D should be added as a party. Taylor had the opportunity to add D as a respondent but did not take steps to do so. She also did not indicate why she did not name D at the outset.

31.   A recent case from this tribunal, Singh v. Insurance Corporation of British Columbia, 2019 BCCRT 701, stated that, given the finding that the applicant had not proved his claim, nothing in the dispute turned on the fact that the applicant did not name the other driver. I have reached a similar conclusion on the facts of this dispute. As discussed below, I find that Taylor has not proved on a balance of probabilities that D was 100% at fault for the accident and I agree with ICBC’s apportionment of 50% fault to each driver. If I had decided differently I may have allowed the applicants to add D as a respondent in this dispute. However, because I find there is no change in liability, I do not need to determine who would have been the proper party for the applicant to recover damages from, whether ICBC or the other driver.

32.   Further, I do not accept Taylor’s claim that D admitted 100% liability because she was wearing flip flops and her foot slipped off the brake. There is no proof that D provided this information to ICBC either at the initial claim assessment phase or on review. I also note that Taylor had the opportunity to get a witness statement from D and submit it to this tribunal but she did not do so. The only documentary evidence is D’s statement to ICBC where she does not indicate that she is 100% liable.

33.   As noted, the burden is on the applicants to prove on a balance of probabilities that D was solely responsible for the accident. They have not met this burden. As a result, I find Taylor is not entitled to a different liability assessment for the accident and therefore is not entitled to additional damages.

34.   Under section 49 of the CRTA, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. As the applicants were unsuccessful in their claims they are not entitled to have their $175.00 tribunal fees reimbursed.

ORDER

35.   I dismiss the applicants’ claims and this dispute.

Kathleen Mell, Tribunal Member




 楼主| 发表于 10/19/2019 15:02:15 | 显示全部楼层
本帖最后由 郭国汀 于 10/19/2019 22:47 编辑

Logan v. ICBC et al
Collection
Small Claims Decisions
Date
2019-08-26
Neutral citation
2019 BCCRT 1015
File numbers
SC-2019-003620
Decision type
Final Decision





Date Issued: August 26, 2019
File: SC-2019-003620
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Logan v. ICBC et al, 2019 BCCRT 1015
BETWEEN:
HOWARD LOGAN
APPLICANT
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA and KATHY BROCKLESBY
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Andrea Ritchie, Vice Chair
INTRODUCTION

1.      This is a small claims dispute about a motor vehicle accident that occurred on February 27, 2019 (accident). The applicant, Howard Logan, and a third party driver not named in this dispute, DT, were involved in a minor collision in a parking lot. The applicant alleges that DT is wholly responsible for the accident.

2.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded that the applicant was 25% at fault for the accident and that DT was 75% at fault. The applicant carries only basic insurance through ICBC and the remainder of his auto insurance through Belair Insurance Company Inc. (Belair), who is not named in this dispute.

3.      The respondent, Kathy Brocklesby, is an ICBC claims adjuster. The applicant seeks damages of $2,700 from Ms. Brocklesby personally, for stress and anxiety due to her alleged improper handling of his accident claim.

4.      The applicant says ICBC should have found DT 100% responsible for the accident, and that ICBC and Ms. Brocklesby breached their statutory obligations in investigating the accident and assigning fault. He seeks a declaration that DT is 100% at fault for the accident and reimbursement of $75, the portion of his deductible he was required to pay.

5.      ICBC says it is not a proper party to the claim, and that DT is the proper respondent. The applicant declined to make a claim against DT. ICBC says it assigned fault under the Motor Vehicle Act (MVA), and specifically that Ms. Brocklesby was at all times acting in her capacity and within her scope of authority as an ICBC employee.

6.      The applicant is self-represented. ICBC and Ms. Brocklesby are both represented by Kimberly Halliday, an ICBC employee.

JURISDICTION AND PROCEDURE

7.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

8.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is an issue.

9.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

10.   Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted by section 118 of the CRTA:

a.    Order a party to do or stop doing something;

b.    Order a party to pay money;

c.    Order any other terms or conditions the tribunal considers appropriate.

ISSUES

11.   The issues in this dispute are:

a.    Whether the applicant is entitled to a reapportionment of fault for the accident and reimbursement of his $75 deductible, and

b.    Whether the applicant is entitled to compensation for stress and anxiety.

EVIDENCE AND ANALYSIS

12.   In a civil claim such as this, the applicant bears the burden of proof on a balance of probabilities. While I have read all the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

13.   The details of the accident are as follows. The applicant was backing out of a parking stall into the aisle when he saw DT’s vehicle approaching in the aisle. The parking lot aisle is one way. The applicant stopped reversing and waited for DT’s vehicle to pass him, and he then continued to reverse into the aisle. It is undisputed that at some point, DT stopped his vehicle and began reversing through the aisle, back to a vacant parking stall he had driven past. When the applicant noticed DT was reversing down the aisle, he honked his horn, and then tried to drive forward, back into his parking stall, but the two vehicles collided.

14.   Initially, Ms. Brocklesby assessed 75% fault to the applicant and 25% to DT. The matter was escalated to a manager who ultimately reassessed fault, assigning 25% to the applicant and 75% to DT. The applicant says DT should be found 100% at fault.

Is the applicant entitled to a reapportionment of fault for the accident and reimbursement of his $75 deductible?

15.   As noted above, the applicant carries his basic auto insurance through ICBC and the remainder of his auto insurance through Belair. It is undisputed that the applicant paid his 25% portion of his deductible to Belair, not ICBC.

16.   The applicant has brought this claim against ICBC only, and not the driver of the other vehicle involved in the accident, or his other insurer, Belair. In Kristen v. ICBC, 2018 BCPC 106, the court held that:

The court cannot assess liability unless the other driver is given an opportunity to present his or her case on that issue. If the other driver is not served and given an opportunity to be heard the court would only have the version of evidence provided by the claimant to consider. The other driver has a right to notice that the court is being asked to consider the issue of liability and an opportunity to participate in the proceedings to present his or her version of the events.

The proper way for the claimant to do that is to sue the other driver. The proper defendant in an action to determine liability in a motor vehicle accident is the other driver, not ICBC...

17.   In Kristen, rather than dismissing the claim for not having named the other driver, the court allowed the claimant an opportunity to amend his notice of claim and add the other driver as a defendant. As noted, the tribunal gave the applicant this opportunity, but he declined.

18.   In the case of Morin v. ICBC, Clark & Berry, 2011 BCPC 290, the claimant brought an action against both ICBC and the driver of the other vehicle involved in a collision. The court held that ICBC had incorrectly charged the claimant a deductible for a “hit and run”, when it found the defendant driver’s negligence had caused the accident. Therefore, the court determined the claimant was entitled to reimbursement for the deductible he paid, and although both ICBC and the other driver were named defendants, ordered the claimant was “entitled to recover from ICBC the entire amount of his damages”.

19.   As I stated in Singh v. ICBC, 2019 BCCRT 701, I find that the Kristen and Morin cases are not inconsistent. Kristen states that to properly assess liability, the other driver should be named to give them an opportunity to present their version of the accident events. I agree, as not doing so would likely be procedurally unfair. This is because a decision in the applicant’s favour could impact the other driver’s insurance premiums. However, there was no decision in Kristen on who would be responsible for paying damages, should they be awarded. In Morin, both ICBC and the other driver were named defendants, so the court assessed liability accordingly, and decided as the claimant had paid money to ICBC, ICBC was the proper party for the claimant to recover that money from. The evidence of the defendant driver in Morin was used to help determine liability in that case.

20.   Here, I find the applicant is not able to recover the money paid for his $75 deductible from ICBC. He did not pay the $75 to ICBC, he paid it to a third party, Belair. Additionally, the applicant refused to add DT as a party to the dispute, despite being told by tribunal staff that it may result in a dismissal of his claims. DT is not insured by ICBC and ICBC has been unable to obtain a statement or any evidence from DT. It is undisputed that ICBC also advised the applicant on several occasions to add or substitute DT as a respondent. The applicant declined to do so, stating his “beef” is with ICBC. I dismiss the applicant’s claim for $75.

21.   I turn then to the applicant’s requested remedy of a declaration that he is not responsible for the accident. I find I am unable to determine liability for the accident without the evidence of DT, the other driver involved. As the applicant was provided the opportunity to add DT to the claim and refused, I find this situation is different from that in Kristen, and I decline to allow a further opportunity for the applicant to add DT to the dispute. Additionally, the tribunal does not have the authority to grant declaratory relief (such as the fault reapportionment remedy sought here), but given the reasons above, the applicant’s claims about liability for the accident are dismissed.

Is the applicant entitled to compensation for stress and anxiety?

22.   The applicant claims for $2,700 in compensation from Ms. Brocklesby personally for stress and anxiety because of what he says was her poor decision-making about liability for the accident. The applicant submits that Ms. Brocklesby’s initial assessment of 75% fault against him was unfair and generally that she did not perform her duties in good faith, or according to ICBC policies. As noted above, ICBC later lowered its assessment of the applicant’s fault from 75% to 25%.

23.   The applicant says that Ms. Brocklesby did not take him at his word, and that she was unreasonably skeptical about his version of the accident. ICBC says Ms. Brocklesby made her initial fault determination based on the relevant provisions of the MVA and in accordance with ICBC fault assessment policy. ICBC says that when additional information was received, including a statement from an internal damage estimator, an ICBC manager reassessed fault in the applicant’s favour.

24.   To succeed in a claim that ICBC, or its employee, did not properly investigate the accident, the applicant must prove on a balance of probabilities that ICBC, or Ms. Brocklesby, breached its statutory obligations or its contract of insurance, or both. The issue is whether the respondents acted “properly or reasonably” in administratively assigning responsibility to the applicant (see: Singh v. McHatten, 2012 BCCA 286).

25.   ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and in its decision about whether to pay the claim (see: Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55 and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information” (see: McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283).

26.   Given the overall evidence, I find that Ms. Brocklesby did not act unreasonably in initially assigning 75% fault to the applicant. I am satisfied her decision was made based on the information available to her at the time and on a reasonable weighing of that available information. Additionally, I find ICBC was reasonable in reassessing fault when additional information became available. Therefore, I find that neither Ms. Brocklesby nor ICBC breached their statutory obligations or the contract of insurance.

27.   Under the law, an employer is generally liable for the actions by employees committed in the course of their employment. This is known in law as “vicarious liability” and it means that if Ms. Brocklesby was negligent in the handling of the applicant’s case, ICBC would be responsible for any damages. As noted above, ICBC submits that at all times Ms. Brocklesby was acting with the scope of her authority in the course of her employment with ICBC. Given the circumstances, and my findings above, I find there is no legal basis for an order against Ms. Brocklesby personally.

28.   Even if I had found that Ms. Brocklesby, or ICBC, had breached their statutory obligations to the applicant, I would not have awarded the damages claimed. The applicant bears the burden of establishing his claim for stress and anxiety. The applicant did not provide any evidence in support of his claim for mental distress.

29.   There are some situations, known as “peace of mind” contracts, where damages are allowed for disappointment, mental distress, inconvenience or upset, such as a lost holiday or for damaged wedding photography. However, this is not one of those situations. While I accept that the applicant was frustrated with the handling of his claim, I find that is insufficient to warrant compensation. Similar to Talbot v. Gill dba Lloyd’s Drycleaners, 2019 BCCRT 366, a decision not binding on me but which I find persuasive, I find the applicant’s mental distress in this case was minor and not serious or prolonged. As the applicant noted in an email to ICBC on July 8, 2019, he was upset that he was not “believed” about his version of events (before the statement of the damage estimator was available) and this dispute is about principle for him. Given the overall evidence, including the lack of evidence supporting the applicant’s claim for mental distress, I find the applicant is not entitled to compensation for stress and anxiety.

30.   Under section 49 of the CRTA, and the tribunal rules, a successful party is generally entitled to the recovery of their tribunal fees and dispute-related expenses. I see no reason to deviate from that general rule. As the applicant was not successful, I find that he is not entitled to reimbursement of his tribunal fees. No dispute-related expenses were claimed.


ORDER

31.   I order the applicant’s claims, and this dispute, dismissed.

Andrea Ritchie, Vice Chair




 楼主| 发表于 10/19/2019 15:05:36 | 显示全部楼层
本帖最后由 郭国汀 于 10/20/2019 13:12 编辑

Won v. ICBC et al
Collection
Small Claims Decisions
Date
2019-07-12
Neutral citation
2019 BCCRT 848
File numbers
SC-2019-002936
Decision type
Final Decision





Date Issued: July 12, 2019
File: SC-2019-002936
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Won v. ICBC et al, 2019 BCCRT 848
BETWEEN:
CHIA YUN WON
APPLICANT
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA,
WILLIAM JIN SU and SHAO FANG YANG
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Andrea Ritchie, Vice Chair
INTRODUCTION

1.      This is a small claims dispute about a motor vehicle accident that occurred on November 3, 2018 (accident). The applicant, Chia Yun Won, was driving a vehicle northbound on Miller Street at Kingsway in Vancouver, British Columbia, when she was struck by a vehicle heading westbound on Kingsway, driven by the respondent, William Jin Su, and owned by the respondent, Shao Fang Yang.

2.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded that the applicant was 100% at fault for the accident.

3.      The applicant says ICBC should have found the respondents Mr. Su and Mr. Yang 100% responsible for the collision, and that ICBC breached its statutory obligations in investigating the accident and assigning fault.

4.      ICBC says it is not a proper party to the claim and that it assigned fault to the applicant because she left a position of safety at a stop sign, causing the accident.

5.      The applicant seeks a declaration that Mr. Su and Mr. Yang are wholly responsible for the accident and $500 to reimburse her for the deductible she paid to ICBC.

6.      The applicant is self-represented. All respondents are represented by Colleen Souveryn, an ICBC adjuster.

JURISDICTION AND PROCEDURE

7.      These are the formal written reasons of the Civil Resolution Tribunal (“tribunal”). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act. The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

8.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is an issue.

9.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

10.   Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders:

a.    Order a party to do or stop doing something;

b.    Order a party to pay money;

c.    Order any other terms or conditions the tribunal considers appropriate.

11.   Although ICBC argues it is not a proper party to the claim, I disagree. In the case of Morin v. ICBC, Clark & Berry, 2011 BCPC 290, the claimant brought an action against both ICBC and the driver of the other vehicle involved in a collision. The court held that ICBC had incorrectly charged the claimant a deductible under a “hit and run”, when it found the defendant driver’s negligence had caused the accident. Therefore, the court determined the claimant was entitled to reimbursement for the deductible he paid. Although ICBC and the other driver were named defendants, the court decided as the claimant had paid money to ICBC, ICBC was the proper party for the claimant to recover that money from. As the applicant in this dispute is seeking reimbursement of a deductible paid directly to ICBC, I find ICBC is a properly named party.


ISSUES

12.   The issues in this dispute are:

a.    Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

b.    Who is liable for the accident? If not the applicant, what is the appropriate remedy?

EVIDENCE AND ANALYSIS

13.   In a civil claim such as this, the applicant bears the burden of proof on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I have only addressed the evidence and arguments to the extent necessary to explain my decision.

Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

14.   As noted above, the applicant seeks an order overturning ICBC’s internal liability assessment and a refund of the $500 insurance deductible she was required to pay. I note that although the applicant claims $500 for reimbursement of her deductible, the evidence is that she only paid $125 towards that deductible. The applicant says that ICBC failed in its duty to assess her liability under the insurance contract. To succeed against ICBC, the applicant must prove on a balance of probabilities that ICBC breached its statutory obligations or its contract of insurance, or both. The issue against ICBC is whether ICBC acted “properly or reasonably” in administratively assigning responsibility to the applicant (see: Singh v. McHatten, 2012 BCCA 286).

15.   The root of the applicant’s claim is that she says Mr. Su entered the intersection when it was unsafe to do so and collided with the applicant’s vehicle. Mr. Su, on the other hand, says the applicant was the one who entered the intersection when he had the right of way. It is undisputed that there were no independent witnesses to the accident. Police attended the scene, but no police file was produced.

16.   ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim, and in its decision about whether to pay the claim (Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55 and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information” (McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283).

17.   In her submissions, the applicant generally states that ICBC did not base its assessment of fault on the evidence, and that too little time was spent looking at the evidence and making a proper decision. ICBC says its decision is founded in the Motor Vehicle Act (MVA). I have discussed the specifics in my liability analysis below.

18.   Given the overall evidence, I find that the applicant has not proved that ICBC breached its statutory obligations or its contract of insurance. Apart from the applicant’s vague assertion that ICBC did not base its assessment on the evidence, the applicant did not provide any evidence or submissions as to how ICBC failed to meet the duty of good faith it owed to the applicant. I find that ICBC acted reasonably in investigating the claim and in administratively assigning the applicant 100% responsibility for the accident.

19.   Having determined that ICBC acted reasonably in its examination of the accident, I now turn to my assessment of liability. I am not bound by ICBC’s earlier assessment.


Who is liable for the accident?

20.   The following facts are undisputed:

a.    On November 3, 2018, the applicant was stopped at a stop sign northbound on Miller Street at Kingsway.

b.    At the same time, Mr. Su was stopped at a red pedestrian-controlled traffic light westbound on Kingsway, at Miller Street.

c.    Kingsway is comprised of 3 lanes each, both westbound and eastbound. Mr. Su was the first vehicle at the red light, in the middle of the 3 lanes going westbound.

21.   The applicant submits she was familiar with the pedestrian-controlled intersection and submits while she was stopped at the stop sign, she noticed the light was red for traffic on Kingsway and determined it was safe to cross the intersection. She says that her view of Mr. Su’s vehicle was blocked by a larger vehicle in the closest westbound lane, and that she did not see Mr. Su’s vehicle entering the intersection until it was too late.

22.   In his statement to ICBC on November 13, 2018, Mr. Su says he was stopped at the red light and a vehicle to his left arrived at approximately the same time. He stated when his light turned green he proceeded into the intersection and when he was about halfway through, the applicant’s vehicle came across the intersection from Miller Street and the two vehicles collided.

23.   The photographs in evidence show damage to the front end of Mr. Su’s vehicle, and the majority of the damage to the front passenger side quarter panel and wheel well of the applicant’s vehicle.

24.   The applicant submits that she had already crossed nearly 4 of the 6 lanes of travel on Kingsway by the time the accident happened, so she therefore was the dominant driver and had control of the intersection.

25.   I turn to the relevant provisions of the MVA. Section 186 requires a driver at an intersection with a stop sign to stop at the marked stop line before entering the crosswalk on the near side of the intersection.

26.   Section 175 of the MVA sets out the obligations of the driver who is about to enter a through highway. It states that (1) the driver of a vehicle entering a through highway from a stop sign must yield the right of way to traffic on the through highway that has either already entered the intersection or is so close to the intersection that it constitutes an immediate hazard, and (2), if the vehicle enters the highway after complying with section 186 and 175(1), traffic approaching the intersection from the highway must yield the right of way to the entering vehicle while it enters or proceeds across the highway.

27.   Before a vehicle constitutes an “immediate hazard”, it must be in a position and traveling at a speed where a reasonable driver would be able to see it and assess the risk it posed (Gorman v. Meghji, 2018 BCSC 1904 at para 114).

28.   Further, the time to assess whether a vehicle is an immediate hazard is at the moment the servient driver begins to enter the intersection (Gorman at para 115, citing Carich v. Cook, 1992 CanLII 995 (BCCA)).

29.   Based on the MVA and the case law, as they approached the intersection, the applicant was the servient driver, and Mr. Su was the dominant driver. The “dominant” driver is the driver who has the right of way, and the “servient” driver is the driver who must yield to the vehicle with the right of way. My reasons follow.

30.   I am satisfied that given the evidence, when the applicant entered the intersection, Mr. Su’s stopped vehicle did not pose an immediate hazard as it was stopped at a red light. However, the fact that Mr. Su’s vehicle was not an immediate hazard at the time the applicant entered the intersection does not mean the applicant was entitled to drive through the intersection with impunity (Gorman, at para 131). A driver entering an intersection, and the driver approaching the intersection on the through highway, both must keep a proper lookout (Carich).

31.   As noted above, the applicant submits her view of Mr. Su’s vehicle was blocked by a larger vehicle in the lane to the left of Mr. Su. It follows that Mr. Su’s view of the applicant’s vehicle would also have been blocked by the same third-party vehicle. In Pacheco (Guardian ad litem of) v. Robinson (1993), 1993 CanLII 383 (BCCA), Mr. Justice Legg held that where a party’s vision of the other is blocked by traffic, the dominant driver is generally entitled to continue, absent proof from the servient driver that the dominant driver had a reasonable opportunity to avoid the accident and should have done so.

32.   Although Pacheco dealt with a left-hand turning situation, I find it still applies in the circumstances before me. In the accident in question, Mr. Su was the dominant driver, already on the through highway. The applicant was the servient driver, seeking to enter the through highway from a stop sign on a side street. As the parties’ views of each other’s vehicles was obstructed, as in Pacheco, Mr. Su, as the dominant driver, was entitled to proceed on his way once the light turned green, and the applicant should have yielded the right of way. The dominant vehicle is entitled to assume the servient vehicle will not create a hazard (Hodgson v. Saeed, 2015 BCSC 147).

33.   I find that although Mr. Su’s vehicle did not constitute an immediate hazard at the time the applicant entered the intersection, it did become an immediate hazard as the applicant continued through. I find that the applicant’s decision to continue through the intersection as she did was negligent. The applicant was required to keep a continuous lookout as she crossed the intersection. The applicant knew the traffic lights were pedestrian-controlled and knew the light could change to green for Kingsway traffic at any moment, and that she had 6 lanes to cross before it did. The applicant knew there was a vehicle that was blocking her view of some of the Kingsway westbound travel lanes, including Mr. Su’s lane. In spite of these circumstances, she continued through the large intersection, which I find was negligent.

34.   Further to Pacheco, in order for the dominant driver Mr. Su to be held responsible, the applicant must show that after Mr. Su, once he was aware of the applicant’s actions, had an opportunity to avoid the accident. There is no evidence before me to indicate that Mr. Su could, or should have, been able to avoid the accident. In any event, any doubt as to whether there was an opportunity to avoid the accident must be resolved in favour of the dominant driver. In the circumstances, I find that the applicant has not proven Mr. Su did or should have realized the applicant disregarded her legal obligations and had time to avoid the collision.

35.   For these reasons, I find the applicant continued through the intersection when it was unsafe to do so, and therefore was responsible for the accident. As a result, I find she is not entitled to a different liability assessment for the accident. The applicant is therefore not entitled to reimbursement of her insurance deductible.

36.   Under section 49 of the Act, and the tribunal rules, a successful party is generally entitled to the recovery of their tribunal fees and dispute-related expenses. I see no reason to deviate from that general rule. As the applicant was not successful, I find that she is not entitled to reimbursement of her tribunal fees. No dispute-related expenses were claimed.

ORDER

37.   I order the applicant’s claims, and this dispute, dismissed.

Andrea Ritchie, Vice Chair




 楼主| 发表于 10/19/2019 15:07:38 | 显示全部楼层
本帖最后由 郭国汀 于 10/20/2019 13:47 编辑

Szigeti et al v. Insurance Corporation of British Columbia
Collection
Small Claims Decisions
Date
2018-06-11
Neutral citation
2018 BCCRT 244
File numbers
SC-2017-003868
Decision type
Final Decision





Date Issued: June 11, 2018
File: SC-2017-003868
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Szigeti et al. v. Insurance Corporation of British Columbia,
2018 BCCRT 244
BETWEEN:
Thomas Szigeti and Gavriella Szigeti
APPLICANTS
AND:
Insurance Corporation of British Columbia
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair

INTRODUCTION

1.         This dispute is about the premium the respondent insurer, Insurance Corporation of British Columbia (ICBC), charged for the 2017 Tesla Model X P90D vehicle owned by Gavriella Szigeti, the wife of the applicant Thomas Szigeti.

2.         Mr. Szigeti’s application and the original Dispute Notice named him as the only applicant. While the parties during the facilitation and later submission processes indicated Ms. Szigeti should be an applicant, there was never a formal application for an Amended Dispute Notice. However, as Ms. Szigeti’s role as a co-applicant is agreed to by all parties as well as Ms. Szigeti, I have added her as a co-applicant in the style of cause above.

3.         On March 31, 2017 the applicants paid ICBC a total of $3,940 for the Tesla insurance. On May 10, 2017, ICBC sent Ms. Szigeti an invoice for $906 indicating it had undercharged the premium for the Tesla, due to a “Fee Calculation Error”. The applicants say ICBC is responsible for any errors it made and they should not have to pay the invoiced premium amount.

4.         ICBC says the initial premium was, as noted on the issued insurance Certificate, a temporary charge for a generic vehicle and that the Certificate noted a bill could be sent. ICBC says it was entitled to treat the premium difference of $906 for the specific Tesla vehicle as a debt. Mr. Szigeti represents the applicants. ICBC is represented by Chris Beneteau, an employee and lawyer in its legal department.

JURISDICTION AND PROCEDURE

5.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing. Neither party requested an oral hearing.

7.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.         Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

9.         The issue in this dispute is whether ICBC was entitled to charge the applicants an additional $906, plus interest for late payment, for the premium difference between a generic new car and their specific Tesla vehicle.

EVIDENCE AND ANALYSIS

10.      In a civil claim such as this, the applicants bear the burden of proof on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

11.      On March 21, 2017, the applicant and his wife went to an insurance broker and sought insurance for the Tesla. On March 30, 2017, the broker advised the applicant that the insurance premium for their Tesla vehicle would be $2,600 for ‘own damage’, rate class 021. As set out below, that is what ICBC charged the applicant for ‘own damage’ coverage.

12.      On March 31, 2017, ICBC issued an Owner’s Certificate of Insurance and Vehicle License to Ms. Szigeti, the registered owner of the Tesla. The insurance was for rate class 021 and immediately below the signature line it stated “Temporary Rate Group used. You may receive a bill or refund”. Under this policy, the applicants obtained ‘basic’ and ‘third party liability’ coverage for $1,340. Under a separate ‘Special Risk Own Damage Policy” the applicant paid $2,600. The total of these two insurance policies is $3,940.

13.      On May 10, 2017, ICBC issued Ms. Szigeti an “Insurance Underpayment Invoice” for $906, noting that a “fee/premium underpayment” occurred on her policy, due to a “Fee Calculation Error”. The invoice noted that interest at 1.5% per month, compounded monthly (19.56% per year) would be charged if the invoice was not paid within 30 days. This invoice related to the ‘basic’ insurance, that every motorist in British Columbia must carry by law.

14.      By August 2, 2017, the interest on ICBC’s underpayment invoice brought the total outstanding to $919.59, which Mr. Szigeti paid on that date.

15.      The crux of this dispute is that applicants say that the ‘temporary rate group’ clause was “fine print” that should have been drawn to his wife’s attention by requiring her to initial that term. The applicants also say that ICBC should not have called the alleged underpayment an “Error”, and if it was an error, it was ICBC’s error and their responsibility. In both respects, I disagree.

16.      First, as noted, the “you may receive a bill” clause is not hidden or buried, as suggested by the applicants. The Certificate is a 2-page document that the vehicle’s owner must sign, and the clause appeared just below the applicant’s wife’s signature on the second page headed ‘Coverages, Fees and Premiums”. Given this ‘you may receive a bill’ clause, there was no finalized contract between the parties for the initial invoice that did not include the $906 at issue, as submitted by the applicants.

17.      An insured’s initials on an insurance policy are generally used so that the insured is precluded from later saying they were not aware of the term, in the event the insured is found in breach of the contract such as driving for business when the car is only insured for pleasure use. That is not the scenario here. The absence of Ms. Szigeti’s initials on the ‘you may receive a bill’ clause is not determinative. Neither is the fact that the $906 was not referenced at the outset.

18.      In a late August 2017 email exchange with Mr. Szigeti, ICBC advised that the applicants’ broker had provided generic ‘new model’ information about the vehicle, and it was on that basis that ICBC issued the ‘temporary rate group’ Certificate for the Tesla. I note the broker is not a party to this dispute. Contrary to Mr. Szigeti’s apparent suggestion in his underlying emails with ICBC, while a broker may be affiliated with ICBC and part of ICBC’s “network” of brokers, ICBC and the broker are not the same entity. The broker is an independent contractor.

19.      For the purposes of this dispute, the material point is that the applicants initially paid the incorrect amount of insurance for their specific Tesla, and that the applicable legislation required that the correct premium amount be paid.

20.      In particular, ICBC’s rates for basic insurance are contained in the Basic Insurance Tariff and are set by the BC Utilities Commission, not ICBC. ICBC is required to charge premiums set out in the Basic Insurance Tariff, as per section 44 of the Insurance Corporation Act. In other words, ICBC is required by law to charge the additional $906 for the particular make and model at issue, the Tesla. Under section 15.7(2) of the Insurance Vehicle Regulation, ICBC is authorized to recover unpaid premium amounts as a debt, which ICBC did when it sent the applicant’s wife the May 10, 2017 invoice.

21.      ICBC was also authorized to charge interest on the unpaid premium, which amounted to $13.59, under section 15.71 of the Insurance Vehicle Regulation.

22.      Next, I accept that the reference to the initial Certificate’s premium total as being a “Fee Calculation Error” was not an ideal description in the circumstances. However, I ultimately agree with ICBC that the invoice for $906 was not to correct an earlier misrepresentation. Rather, it was an invoice to correct the insurance premium for the specific make and model, the Tesla, rather than a generic model. Again, the original Certificate expressly stated that a bill could be issued. I have no evidence before me as to why the broker requested insurance for a generic new model when it knew the applicant’s vehicle was a Tesla Model X. Nonetheless, the premium for the applicants’ specific Tesla vehicle was the amount ICBC ultimately charged, including the $906, which by law ICBC was entitled to treat as a debt until it was paid.

23.      Even if ICBC had made an error in its invoicing to the applicants, it was entitled by law to correct the error and collect the correct premium for the Tesla, as described above. While I accept that the applicants were caught by surprise when they received the $906 invoice, they do not particularly challenge that the correct premium for their Tesla was in fact inclusive of the $906 at issue. I accept that the applicants ultimately paid the correct premium for their Tesla.

24.      In summary, I find ICBC has not breached its obligations under its insurance contract with the applicants. ICBC properly charged the applicants the additional $919.56, inclusive of $13.59 in interest. As such, I do not need to address the applicant’s claims for damages.

25.      I dismiss the applicants’ dispute, including their claim for reimbursement of tribunal fees given they were unsuccessful.

ORDER

26.      I order that the applicants’ dispute is dismissed.

Shelley Lopez, Vice Chair





 楼主| 发表于 10/19/2019 15:09:41 | 显示全部楼层
本帖最后由 郭国汀 于 10/20/2019 14:03 编辑

Pilon et al v. Insurance Corporation of British Columbia
Collection
Small Claims Decisions
Date
2018-06-26
Neutral citation
2018 BCCRT 282
File numbers
SC-2017-005786
Decision type
Final Decision





Date Issued: June 26, 2018
File: SC-2017-5786
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Pilon et al v. Insurance Corporation of British Columbia, 2018 BCCRT 282
BETWEEN:
Blenda Pilon and Raymond Pilon
APPLICANTS
AND:
Insurance Corporation of British Columbia
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Kate Campbell
INTRODUCTION

1.         The applicants, Blenda and Raymond Pilon, seek $800.75 for damage to the headlights of their 2010 Toyota Prius (Prius) which they say was caused by melting snow and rain.

2.         The respondent, the Insurance Corporation of British Columbia (ICBC) says the evidence does not establish the cause of the headlight damage, and the damage does not fall within the scope of coverage under its insurance contract with the applicants.

3.         The applicants are self-represented. The respondent is represented by an employee.

JURISDICTION AND PROCEDURE

4.         These are the formal written reasons of the tribunal. The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing. Neither party requested an oral hearing.

6.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.         Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

8.         The issue in this dispute is whether the respondent is responsible to reimburse the applicants for headlight damage, and if so in what amount.

EVIDENCE AND ANALYSIS

9.         In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

10.      The applicants say the headlights of their Prius were damaged due to the effects of a heavy snowfall, followed by heavy rain, in January 2017. They say this was an “act of God” and therefore the headlight repair should be covered under their ICBC insurance.

11.      The applicants say the headlights worked properly until the time of the snowfall, but the next day the headlights began flickering and failed. They submit it is therefore logical that the 18 inches of heavy, wet snow caused an electrical short that damaged the headlights.

12.      The applicants provided a February 6, 2017 invoice from their mechanic, showing a total of $830.74 for new headlights, labour, supplies, and taxes. The invoice says the customer noticed that after the car “sat in winter and had to be dug out” that the lights were not as good as they should be. The mechanic wrote that he found that water had intruded into the headlights causing them to short, burning the assemblies and brake retainers. He wrote that he installed new lights and also had to repair some wiring on the fuse box due to overheating from the short.

13.      The applicants provided an October 17, 2017 letter from the mechanic, stating that their vehicle was damaged from water intrusion caused by a snowfall that engulfed the vehicle. The mechanic said the snow caused a short when the vehicle was switched on, as “power and ground” were present inside the headlight assemblies. He said the repair required replacement of the headlight assemblies.

14.      The respondent agrees that the heavy snowfall occurred, but says the damage is excluded under the insurance contract. The respondent cites several provisions of the ICBC Autoplan Optional Policy (the Policy), the contract under which the applicants claim payment.

15.      Division 8 of the Policy sets out “Requirements if loss or damage to vehicle.” It says that if vehicle damage covered under the contract occurs, the insured must promptly notify the insurer of the damage. Paragraph 5(3) of Division 8 says:

(3) If loss of or damage to a vehicle that is covered by this contract occurs, the owner or operator of the vehicle
...
(b) until the insurer has had a reasonable opportunity to inspect the vehicle, must not, without the consent of the insurer, remove any physical evidence of the loss or damage to the vehicle or make any repairs to the vehicle, other than repairs that are immediately necessary to protect the vehicle from further loss or damage.

16.      In this case, the applicants admit the Prius was repaired before the respondent was notified of the damage or had any opportunity to inspect it. They say that when the repairs were performed they did not know insurance could cover the claim, and they only considered an insurance claim when their mechanic suggested it months later. They say the mechanic disposed of the wiring harness at the time of the repair because no claim was anticipated. They say they kept the headlights “for a while”, and provided the respondent with a photograph of them.

17.      While the applicants’ reasons for proceeding with repairs are understandable, they did not obtain the respondent’s consent to repair the Prius and remove evidence of the damage. I find the repairs were not immediately necessary to protect the Prius from further loss or damage. Although the headlight repairs were necessary and the car was likely unsafe to drive, there is no evidence to suggest it was getting worse. I also note that the invoice indicates that the repairs were performed at least a week after the snowfall, so they were not done on an emergency basis.

18.      For these reasons, I find the applicants failed to comply with paragraph 5(3)(b) of the contract, as cited above.

19.      Division 8, paragraph 5(4)(b) of the Policy states that the insurer is not liable under the contract to an owner if the owner, to the prejudice of the insurer, contravenes subcondition 3(b).

20.      I find the respondent was prejudiced by the applicants’ breach of paragraph 5(3)(b). Because the Prius is fixed and the parts are gone, the respondent cannot verify the mechanic’s statement about what caused the headlight damage. While I accept the applicant’s submission that their mechanic is an expert, the respondent had a contractual right to perform its own inspection.

21.      For these reasons, I find the respondent is not liable to pay for the Prius headlight damage under the terms of the Policy.

22.      The applicants submit that a manager employed by the respondent told them the Prius damage would be covered if caused by an “act of God.” However, I find that this statement made by an ICBC employee during the claims process does not override the specific written contractual language set out in the Policy. The applicants negated any right to insurance coverage, regardless of the cause of the damage, when they proceeded with repairs and disposed of the parts without the respondent’s consent or reasonable opportunity for inspection.

23.      I therefore dismiss the applicants’ claim.

24.      The tribunal’s rules provide that the successful party is generally entitled to recovery of their fees and expenses. The applicants were unsuccessful, so I dismiss their claim for reimbursement of tribunal fees and dispute-related expenses. The respondent did not pay any fees and did not claim any dispute-related expenses.

ORDERS

25.      I dismiss the applicant’s claims and this dispute.


Kate Campbell, Tribunal Member



 楼主| 发表于 10/19/2019 15:12:31 | 显示全部楼层
本帖最后由 郭国汀 于 10/20/2019 15:48 编辑

Pearson v. ICBC
Collection
Small Claims Decisions
Date
2019-08-19
Neutral citation
2019 BCCRT 985
File numbers
SC-2019-001442
Decision type
Final Decision
Noteworthy Decisions?
Yes
Notes
Applicant non-lawyer’s claim for payment of his fees for “services” denied because it was an illegal contract as they were legal services and the Legal Profession Act does not allow it. An illegal contract is not enforceable (also known in law by a Latin phrase, ‘ex turpi causa non oritur actio’).





Date Issued: August 19, 2019
File: SC-2019-001442
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Pearson v. ICBC, 2019 BCCRT 985
BETWEEN:
DOUGLAS PEARSON
APPLICANT
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Julie K. Gibson
INTRODUCTION

1.      The applicant Douglas Pearson’s 1992 Toyota pick-up truck (truck) rolled backwards down his driveway, colliding with a parked car across the street. The applicant says that the respondent Insurance Corporation of British Columbia (ICBC) wrongly assessed him as 100% at fault for the collision.

2.      The applicant seeks an order requiring ICBC to change their liability decision. The applicant also claims $2,609.03 which he says is to compensate him for the amount his insurance rates increased due to being found at fault for the collision.

3.      ICBC says the cause of the collision was the applicant’s truck having a brake failure, then rolling across the roadway and hitting the parked car. ICBC says it investigated and reached a reasonable and proper determination that the applicant was 100% liable for the collision. ICBC asks that the dispute be dismissed.

4.      The applicant is self-represented. The respondent is represented by employee Lynn Boutroy.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

7.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

9.      ICBC says it is not a proper respondent to the applicant’s claim. It says LP, the owner of the car damaged in the collision, should be substituted as the respondent. In a preliminary decision the tribunal found that this is a dispute between ICBC and the applicant about liability under the parties’ insurance contract. It is not a tort claim in damages. Therefore, the tribunal held that ICBC is a proper respondent. That said, the tribunal member left it open for the tribunal member making the final decision on the merits to decide the question of whether ICBC is the proper respondent.

10.   In Innes v. Bui, 2010 BCCA 322, the Court of Appeal found that a plaintiff involved in a collision who challenged ICBC’s decision about liability for that collision had a claim not based in tort, but rather based in either contract, statute, or both. The court found that the only issue raised by the pleadings in that case was whether ICBC acted properly or reasonably in its administrative decision to assign full responsibility for the collision to the plaintiff. The court said that issue was strictly between the plaintiff and ICBC, and that the other driver in the collision was not the correct party.

11.   I agree with the tribunal’s preliminary determination that the nature of the applicant’s claim here is the same as that in Innes, and therefore, I find ICBC is the proper respondent to this dispute.

ISSUES

12.   The issues in this dispute are:

a.    Did ICBC reasonably assess 100% liability against the applicant?

b.    To what extent, if any, is the applicant entitled to his requested remedies?

EVIDENCE AND ANALYSIS

13.    In this civil claim, the applicant bears the burden of proof on a balance of probabilities. I have reviewed all of the evidence and submissions but refer to them here only to the extent necessary to explain and give context for my decision.

14.    The applicant seeks an order overturning ICBC’s internal liability assessment and a refund of increased insurance premiums he says he paid due to ICBC’s liability assessment. The central issue is whether ICBC acted “properly or reasonably” in administratively assigning 100% responsibility to the applicant (see: Singh v. McHatten, 2012 BCCA 286).

15.    ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and as to its decision about whether to pay the claim (see: Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55 and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information” (see: McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283).

16.   Given the evidence and submissions before me, I find nothing to suggest that ICBC failed to meet the burden upon it to assess the claim reasonably. My reasons follow.

17.   In May 2018, the applicant had his truck serviced. The mechanic completed work including to the truck’s timing belt, water pump, brakes, wheel bearings, and wheel and camshaft seals. The invoice noted that the brake fluid service was overdue and that servicing brake fluid at the proper maintenance schedule would help prevent ABS and brake system failures. Oil and fluid leaks were also recorded.

18.   On August 12, 2018, the applicant says he placed the truck in first gear and applied the emergency brake to park it in his driveway. About 30 minutes later, the truck rolled down the sloped driveway, eventually colliding with the parked car across the road.

19.   On August 29, 2018, a mechanic examined the truck and found that the right emergency brake cable had seized and needed replacement.

20.   The applicant says ICBC’s Claims Assessment Review identified errors in ICBC’s initial fault determination but confirmed the decision that he was 100% liable for the collision. I have reviewed the Claims Assessment Review determination in detail.

21.   On December 4, 2018, ICBC wrote to the applicant advising him that ICBC upheld its original assessment that he was 100% liable for the collision.

22.   The Claims Assessment Reviewer (reviewer) explained that the collision was caused by the truck’s mechanical failure. The reviewer found that, on a balance of probabilities, the applicant failed to properly engage the transmission in first gear, and then the emergency brake failed. The reviewer made this finding because it would be an unlikely coincidence to have both the brake fail and the truck slide out of first gear in the same instant.

23.   The reviewer found that the fact that the other car was illegally parked within 6 meters of an intersection was not a “contributing factor” to the collision.

24.   The reviewer rejected the applicant’s argument that, because he did everything he could to ensure his vehicle was safe to operate, he was not liable for the collision. The reviewer found that the truck was not in compliance with section 5.03(1) of the Motor Vehicle Act Regulation that requires any vehicle to have an emergency or parking brake that will, alone, stop it from rolling if applied.

25.   The reviewer also found that an operator of a vehicle in the truck’s condition on a highway would be subject to a Notice and Order and the vehicle removed from the highway for its unsafe condition.

26.   The applicant says the truck was serviced only a few months before the accident and that the parking brake was not identified as needing work. He says the parking brake on his truck failed.

27.   The applicant again argues that he took reasonable steps to ensure that his truck is safe. The applicant says the accident was “not reasonably foreseeable” and that he did not breach the standard of care.

28.   I find that the truck’s maintenance record does not absolve the applicant from liability. The uncontradicted evidence is that the applicant’s car rolled out of the driveway and across the road while its emergency brake was engaged. The brake failed to perform its intended function. The collision would not have occurred but for the failure of the emergency brake.

29.   Given that the emergency brake did not alone stop the truck, the applicant is in breach of Section 5.03(1) and is liable for the collision, regardless of whether he knew or ought to have known that the brake would fail.

30.   In submissions, the applicant says he is not trying to prove that LP is at fault for the collision. Rather, he argues that ICBC’s decision to apply his third-party coverage to the cost of damage to LP’s car is in error. The applicant asks why ICBC would not recover repair costs from LP under her collision and comprehensive coverage.

31.   Third party liability coverage applies when a driver is at fault and the other driver makes a claim, such as LP’s claim for the repairs to her car. I find that, given that the applicant was liable for the collision, it was appropriate for ICBC to address those repairs under the applicant’s third party liability coverage.

32.   For these reasons, I uphold ICBC’s determination that the applicant is 100% liable for the collision.

33.   Given my conclusion on liability, it is not necessary for me to address the applicant’s claim for a refund of the $2,609.03 he says he has paid in insurance rates due to the liability determination.

34.   Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. ICBC was successful but did not pay tribunal fees or claim dispute-related expenses, so I make no order for them. As the applicant was unsuccessful, I dismiss his claim for reimbursement of tribunal fees.

ORDER

35.   I dismiss the applicant’s claims and this dispute.

Julie K. Gibson, Tribunal Member




 楼主| 发表于 10/19/2019 15:15:11 | 显示全部楼层
本帖最后由 郭国汀 于 10/20/2019 16:12 编辑

hougaard v. Insurance Corporation of British Columbia et al
Collection
Small Claims Decisions
Date
2018-11-07
Neutral citation
2018 BCCRT 699
File numbers
SC-2018-002986
Decision type
Final Decision





Date Issued: November 7, 2018
File: SC-2018-002986
Type: Small Claims
Civil Resolution Tribunal
Indexed as: hougaard v. Insurance Corporation of British Columbia et al,
2018 BCCRT 699
BETWEEN:
caleb hougaard
APPLICANT
AND:
Insurance Corporation of British Columbia and Rexford Rene Hayes
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Kate Campbell
INTRODUCTION

1.      The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded the applicant caleb hougaard was 100% at fault in a February 21, 2018 motor vehicle collision with the respondent Rexford Rene Hayes. Mr. Hougaard, who was the rear driver in the collision, says ICBC should have found Mr. Hayes entirely at fault because he made an illegal left turn.

2.      The applicant seeks an order that ICBC’s liability decision be reversed, and that Mr. Hayes be held 100% responsible for the collision. He also seeks an order that the respondents pay $1,121.05 for repairs to his truck.

3.      The applicant is self-represented. The respondents are represented by Jennifer Kwan, an ICBC employee.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

5.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In the circumstances here, I find that I am properly able to assess and weigh the documentary evidence based on the written submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, the BC Supreme Court recognized the tribunal’s process and found that oral hearings are not necessarily required where credibility is in issue.

6.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Under tribunal rule 126, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

8.      The issue in this dispute is whether the applicant is entitled to a re-assessment of his liability for the February 21, 2018 motor vehicle collision, such that he is held 0% responsible.

EVIDENCE AND ANALYSIS

9.      In a civil claim such as this, the applicant bears the burden of proof, on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

10.   This is not a tort claim alleging personal injury or damage. Rather, it is a claim under the applicant Mr. Hougaard’s insurance policy with ICBC. In essence, Mr. Hougaard says ICBC failed in its duty to assess his liability under the insurance contract. For the reasons that follow, I find that Mr. Hougaard has not proved his claim.

11.   Mr. Hougaard provided a videotaped description of the accident. In that recording, he says that just before the collision occurred, he was travelling in the left lane approaching an intersection. He says Mr. Hayes was in the lane to his right, then turned across in front of Mr. Hougaard in the intersection while Mr. Hougaard continued to travel in the left turn lane. Mr. Hougaard says the front of his vehicle then hit the back left corner of Mr. Hayes’ bumper.

12.   It is undisputed that the collision occurred at low speed, that it was snowing heavily, and that there was snow on the ground at the time.

13.   The root of Mr. Hougaard’s claim is that he says Mr. Hayes was performing an illegal left turn at the time the accident occurred, which caused an unavoidable collision. Mr. Hougaard says Mr. Hayes’ left turn was illegal because he turned left from the centre lane, rather than from the left turn lane.

14.   Mr. Hayes denies the allegation that he turned left from the centre lane. He says he was in the left lane in front of Mr. Hougaard, making a left turn, when Mr. Hougaard hit him from behind. Mr. Hayes’ Dispute Response Form says Mr. Hougaard was travelling too fast for road conditions, which Mr. Hougaard denies.

15.   Mr. Hougaard says the video footage, which was apparently taken some time after the collision, shows tire tracks travelling from the centre lane over to the left side of the intersection. I place no weight on that visual evidence because no single set of tire tracks can be discerned. Also, the video is not time-stamped, and there is no way to know how many other vehicles travelled through the intersection between the collision and the video capture.

16.   Mr. Hougaard says it is impossible that Mr. Hayes was in the left turn lane turning left when the collision occurred, because the vehicle damage shows that the front right corner of Mr. Hougaard’s vehicle hit the rear left bumper of Mr. Hayes’ vehicle. I disagree with that assertion. I find that the vehicle damage shown in the photographs could also be consistent with a scenario where Mr. Hayes was turning left from the left turn lane and Mr. Hougaard skidded to the left in the snow due to braking, after approaching too quickly from behind.

17.   Based on these findings, and the fact that there are no other witness statements or accident scene evidence, I conclude that Mr. Hougaard has not proven that Mr. Hayes executed an illegal left turn, and that this caused the collision.

18.   An inference of negligence by the rear vehicle driver is often drawn in cases involving rear-end collisions because, as stated in Wallman v. John Doe, 2014 BCSC 79 at para. 410:

[410]    ... the following driver owes a duty to drive at a distance from the leading vehicle that allows reasonably for the speed, traffic and the road conditions: Barrie v. Marshall, 2010 BCSC 981, at paras. 23-24; Rai v. Fowler, 2007 BCSC 1678, at para. 29. This duty is codified in ss. 144 and 162 of the Motor Vehicle Act.

19.   I find that this inference of negligence by the applicant applies in this case because Mr. Hougaard has not proved that the events leading up to the collision could not have been avoided: see Dorsett v. Sahib, 2018 BCSC 1884.

20.   Section 76(4) of the Insurance (Vehicle) Act says that the insurer may at any stage compromise or settle a claim. Section 77(4) of that statute says ICBC has the right to contest its insured’s liability. Section 74 of the Insurance (Vehicle) Regulation provides that ICBC will assist the insured by investigating and negotiating a settlement, where, in ICBC’s opinion, its assistance is necessary. Section 74.1 says that ICBC is entitled to exclusive conduct and control of the defence of an action, including an entitlement to admit liability, in whole or in part, on the insured’s behalf.

21.   ICBC owes the applicant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses the claim and in its decision about whether to pay the claim (see Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55, and 93). As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information (see McDonald v. insurance Corp. of British Columbia, 2012 BCSC 283). I find ICBC has done so, as discussed further below.

22.   Mr. Hougaard did not make submissions about whether ICBC failed to conduct a thorough investigation. However, based on the information set out in ICBC’s liability assessment letter, I find that its investigation met the test set out in McDonald. ICBC reasonably concluded that as the rear driver at the time of the collision, Mr. Hougaard had not met the onus of proving that Mr. Hayes was negligent, and that Mr. Hayes’ negligence contributed to the collision.

23.   In summary, in order to succeed in his claim, Mr. Hougaard must prove on a balance of probabilities that ICBC breached its statutory obligations or its contract of insurance, or both. The issue here is whether ICBC acted “properly or reasonably” in administratively assigning Mr. Hougaard 100% responsibility for the collision (see Singh v. McHatten, 2012 BCCA 286, and Innes v. Bui, 2010 BCCA 322 at para. 33). I find that Mr. Hougaard has not proved that ICBC failed to do so.

24.   As the applicant was unsuccessful, in accordance with the Act and the tribunal’s rules I find he is not entitled to reimbursement of tribunal fees.

ORDER

25.   I order the applicant’s claims, and therefore this dispute, dismissed.

Kate Campbell, Tribunal Member




 楼主| 发表于 10/19/2019 15:18:42 | 显示全部楼层
本帖最后由 郭国汀 于 10/20/2019 16:37 编辑

Chen v. Insurance Corporation of British Columbia
Collection
Small Claims Decisions
Date
2018-02-02
Neutral citation
2018 BCCRT 25
File numbers
SC-2017-002925
Decision type
Final Decision





Date Issued: February 2, 2018
File: SC-2017-002925
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Chen v. Insurance Corporation of British Columbia, 2018 BCCRT 25
BETWEEN:
Jing Chen
APPLICANT
AND:
Insurance Corporation of British Columbia
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair

INTRODUCTION

1.         The respondent insurer, Insurance Corporation of British Columbia (ICBC), found the applicant Jing Chen was 100% liable for damage to another vehicle owned by a third party Mr. B, arising from a July 2015 incident. Ms. Chen says she suspected fraud and denies any liability, and submits ICBC failed adequately investigate the matter.

2.         Ms. Chen wants her ICBC insurance claim history cleared of this incident. She also asks for $400 to clear any ICBC penalties along with $2,599 in damages for mental stress and psychological pain. The parties are self-represented.

JURISDICTION AND PROCEDURE

3.         These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

4.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing. Neither party requested an oral hearing.

5.         The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

6.         Under tribunal rule 121, in resolving this dispute the tribunal may: order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

7.         The issues in this dispute are:

a.  Was Ms. Chen likely involved in the July 2015 incident giving rise to Mr. B’s 2015 ICBC claim?

b.  Did ICBC adequately investigate Mr. B’s claim?

c.   Did ICBC properly assess 100% liability against Ms. Chen for Mr. B’s claim?

d.  To what extent, if any, is Ms. Chen entitled to her requested remedies?

EVIDENCE AND ANALYSIS

8.         In a civil claim such as this, the applicant bears the burden of proof on a balance of probabilities. I have only addressed the evidence and arguments to the extent necessary to explain my decision.

9.         Ms. Chen says that on July 20, 2015 she received ICBC’s letter notifying her of Mr. B’s claim that Ms. Chen had caused damage to his vehicle on July 8, 2015. At the material time, Mr. B drove a blue 2008 Pontiac Wave. Ms. Chen drove a white Honda CR-V. Mr. B’s claim report was that the driver of Ms. Chen’s vehicle had opened her driver’s side door in a way that struck and damaged his front passenger side door, while parked in the lot of Save-On-Foods in Surrey. Mr. B reported that the driver drove off without leaving her details, but that he recorded her license plate. Mr. B gave evidence to ICBC that he had been standing in the parking lot with another person, Mr. E (who worked at the store), and they both witnessed the incident. ICBC interviewed Mr. E by telephone, and ICBC’s telephone notes indicate he confirmed Mr. B’s account and also described Ms. Chen as the driver of the vehicle that hit Mr. B’s car.

10.      Ms. Chen says she told ICBC that she recalled that there was a small light green car parked close to her car on that day, and that her driver’s door had only touched this green car when she got into her car. She says she did not believe there was any damage done. Given this and that Mr. B’s car is blue not green, Ms. Chen says she suspected fraud, and asked ICBC to contact a witness about the car’s colour. Ms. Chen says the ICBC claims adjuster, Ms. R, acknowledged she never contacted the witness. Yet, I have ICBC’s telephone notes of the interviews with Mr. E and Mr. B. There is no other witness information before me.

11.      Ms. Chen says that neither the photos of the blue car nor the witness’ statement support ICBC’s final decision that Ms. Chen was 100% liable for the claim. I do not agree.

12.      As referenced above, Ms. Chen signed a July 22, 2015 statement in which she acknowledged that she may have hit a “little green car” car next to hers in the Save-On-Foods parking lot. Ms. Chen also questioned if the other car had pre-existing damage.

13.      ICBC inspected Ms. Chen’s Honda and found that the height of the Pontiac’s damage likely matched a point in the body of the Honda’s door. In its August 11, 2015 letter, ICBC assessed 100% liability against Ms. Chen. Before coming to this decision, ICBC’s estimating manager concluded that the Pontiac repairs were reasonable and likely related to the damage caused. I find that ICBC’s investigation of the incident was reasonable, given the evidence before me that included an estimator’s examination, a review by a claims analyst, and telephone interviews with Ms. Chen, Mr. B and Mr. E.

14.      ICBC submits that in accordance with sections 74 and 74.1 of the Insurance (Vehicle) Regulation, ICBC fulfilled its responsibility to investigate Mr. B’s claim and properly admitted liability on Ms. Chen’s behalf. I agree.

15.      I find that the weight of the evidence before me supports ICBC’s position and its assessment of 100% liability against Ms. Chen. Overall, I find the likely explanation is that Ms. Chen’s car door hit Mr. B’s car, and Ms. Chen simply had an inaccurate later recollection of the vehicle. I say this given the evidence of Mr. B’s and Mr. E’s statements to ICBC and Ms. Chen’s own statement to ICBC recalling that she may have touched the car adjacent to hers in the Save-On-Foods parking lot. In particular, Ms. Chen acknowledged that the car parked next to hers, which I find was Mr. B’s car, was parked very close to her, as she herself had parked almost on the yellow dividing line (as shown on Ms. Chen’s diagram). Ms. Chen stated that she yelled for that car’s driver to come move their vehicle, but no one came. I find that Ms. Chen had little space to open her door because she parked almost right on the yellow line for the parking space and that she did in fact impact the car adjacent to hers.

16.      The central issue in this dispute is Ms. Chen’s assertion that her car door did not open into Mr. B’s car because 12 days after the incident she said she believed that the other car was blue not light green, and, because she says the damage could not have resulted from her car’s position.

17.      I find Ms. Chen’s later assertion about a different colour is not sufficient to establish that it was not her car that hit Mr. B’s vehicle or that Mr. B’s car was not hit at all. The totality of all the other evidence supports the conclusion that Ms. Chen hit Mr. B’s car when she opened her car door in the parking lot. I also do not accept Ms. Chen’s arguments about how her car door could not have caused the damage to Mr. B’s vehicle, and instead I prefer ICBC’s evidence from persons trained to provide that assessment. That ICBC’s personnel could not be 100% definitive does not cause me to reject their on-balance assessment that Ms. Chen’s vehicle hit Mr. B’s vehicle.

18.      Given my conclusions above, I find Ms. Chen has not established that Mr. B’s claim was fraudulent, as Ms. Chen has alleged. I find Ms. Chen has not established that ICBC failed to conduct a reasonable investigation as required by the insurance contract and the relevant legislation.

19.      In summary, I find ICBC has not breached its obligations under its insurance contract with Ms. Chen. I confirm ICBC’s finding that Ms. Chen was 100% liable for the ICBC claim. As such, I do not need to address Ms. Chen’s claims for damages.

20.      I dismiss Ms. Chen’s dispute, including her claim for reimbursement of tribunal fees.

ORDER

21.      I order that the applicant’s dispute is dismissed.

Shelley Lopez, Vice Chair




 楼主| 发表于 10/19/2019 15:22:18 | 显示全部楼层
本帖最后由 郭国汀 于 10/20/2019 17:06 编辑

Kusnierczyk v. ICBC et al
Collection
Small Claims Decisions
Date
2019-08-23
Neutral citation
2019 BCCRT 1002
File numbers
SC-2019-002783
Decision type
Final Decision
Noteworthy Decisions?
Yes


Summary:
Small claims MVA claim dismissed because ICBC reasonably investigated and because evidence shows driver of applicant’s vehicle breached section 203 of the Motor Vehicle Act in failing to ensure it was reasonably safe to open her parked car’s door.





Date Issued: August 23, 2019
File: SC-2019-002783
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Kusnierczyk v. ICBC et al, 2019 BCCRT 1002
BETWEEN:
DAVID KUSNIERCZYK
APPLICANT
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA, Toyota Credit Canada Inc., William Ross, and Marian Ross

RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Eric Regehr
INTRODUCTION

1.      This is a small claims dispute about a car accident that occurred on March 8, 2019 in a mall parking lot. The applicant, David Kusnierczyk, is the owner of a car, the make and model of which are not in evidence. The respondent, William Ross, struck the applicant’s car’s open driver-side door as he parked beside the applicant’s car, which was driven by his wife, Ingrid Kusnierczyk. The applicant was not present at the time of the collision.

2.      The respondent, the Insurance Corporation of British Columbia (ICBC), is the applicant’s insurer. ICBC internally concluded that Ms. Kusnierczyk was 100% at fault for the collision. The applicant disagrees. He claims $1,000 as reimbursement of his insurance deductible. He also asks for orders that ICBC reverse their finding of fault and that there be no future impact on his insurance premiums.

3.      The evidence does not explain the role of the other respondents, Toyota Credit Canada Inc. and Marian Ross, in this dispute. Presumably they are the owner and lessee or co-lessee of the car Mr. Ross was driving, but given my findings in this dispute, I decided that it was unnecessary for me to confirm their roles.

4.      The applicant is self-represented. The respondents are represented by Colleen Souveryn, an ICBC adjuster.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, this dispute brings into question the credibility of the parties. However, in the circumstances of this dispute, I find that it is not necessary for me to resolve the credibility issues that the parties raised. I therefore decided to hear this dispute through written submissions.

7.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUES

9.      The issues in this dispute are:

a.    Did ICBC breach is statutory obligations in investigating the accident and assessing fault?

b.    Who is liable for the accident?

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the applicant must prove his case on a balance of probabilities. I have read all of the parties’ evidence and submissions but I will only refer to what is necessary to explain and give context to my decision.

11.   Ms. Kusnierczyk and Mr. Ross both provided brief telephone statements to ICBC, which are in evidence. There is no other first-hand evidence before me about what happened, such as more detailed statements from Ms. Kusnierczyk or Mr. Ross, witness statements, or photographs.

12.   In his submissions, the applicant appears to rely on conversations he has had with Ms. Kusnierczyk. While the tribunal may consider hearsay evidence, I place no weight on the applicant’s description of what Ms. Kusnierczyk did or said because it is evidence that goes to the core of the dispute. The applicant does not explain why Ms. Kusnierczyk did not provide her own evidence, even though it should have been clear that her evidence was important. Furthermore, as Ms. Kusnierczyk is the applicant’s spouse, without an explanation to the contrary I would expect that her evidence would be readily available to him.

13.   As mentioned above, the accident occurred in a parking lot on March 8, 2019. According to Ms. Kusnierczyk’s statement to ICBC, there was no car in the parking spot to her left when she parked. She stopped, turned off the car, and checked that there was no car next to her. She opened her door and reached for her purse on the front passenger seat. At that time, Mr. Ross’s vehicle struck her open door and it slammed shut.

14.   According to Mr. Ross, when he entered the parking stall, the door of Ms. Kusnierczyk’s car was closed. He says he moved slowly straight into the parking stall. He says that without warning, Ms. Kusnierczyk opened her door into the path of his car and he struck it with his front right bumper.

15.   ICBC assessed Ms. Kusnierczyk 100% at fault. ICBC relied on section 203 of the Motor Vehicle Act (MVA). Section 203(1) of the MVA says that a person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so. Section 203(2) of the MVA says that a person must not leave a door open on the side of a vehicle available to moving traffic for longer than is necessary to load or unload passengers.

Did ICBC breach its statutory obligations in investigating the accident and assessing fault?

16.   As noted above, the applicant wants an order that overturns ICBC’s internal liability assessment. The applicant says that Mr. Ross was 100% liable. To succeed against ICBC, the applicant must prove that ICBC breached its statutory obligations or its insurance contract with the applicant, or both. The issue against ICBC is whether ICBC acted “properly or reasonably” in assigning 100% fault to the applicant (see Singh v. McHatten, 2012 BCCA 286).

17.   As part of its obligation to act properly and reasonably in assigning fault, ICBC must reasonably investigate the claim. In doing so, ICBC is not expected to investigate with the “skill and forensic proficiency of a detective”. Rather, ICBC must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness and objectivity”. See McDonald v. Insurance Corporation of British Columbia, 2012 BCSC 283.

18.   In reviewing the claims notes, one aspect of ICBC’s handling of the claim stands out. Ms. Kusnierczyk told an ICBC adjuster that there were “lots of witnesses” to the accident, some of whom she knew. The ICBC adjuster told her not to bother because a witness “cannot be anyone she knows”. While ICBC may reasonably consider bias in how it uses statements from non-party witnesses, I find that it was not reasonable or appropriate for the adjuster to refuse to consider such statements at all.

19.   That said, despite that flaw in ICBC’s investigation, I find that ICBC did not breach its duty to reasonably investigate the accident. I make this finding because, as discussed below, Ms. Kusnierczyk’s and Mr. Ross’s statements both supported ICBC’s fault assessment. In other words, Ms. Kusnierczyk’s own statement supported the finding of fault against her, making it unlikely that further statements would be helpful. Furthermore, I find that the extent of ICBC’s obligation to reasonably investigate an accident varies with the severity of the accident. In this accident, there were no injuries and relatively little vehicle damage.

20.   Furthermore, even if there was a breach of ICBC’s obligations, I find that the breach had no consequence because, as discussed below, I agree that Ms. Kusnierczyk was 100% at fault for the accident.

21.   Therefore, I dismiss the applicant’s claim against ICBC.

Who is liable for the accident?

22.   As mentioned above, section 203 of the MVA sets out a person’s duties when they open a car door into moving traffic. I find that section 203 of the MVA applies to this dispute.

23.   According to the notes from an ICBC adjuster who spoke to Ms. Kusnierczyk on the telephone, Ms. Kusnierczyk admitted that she did not shoulder check before opening the door. The applicant says that Ms. Kusnierczyk did shoulder check. However, Ms. Kusnierczyk’s statement to ICBC is silent about this issue.

24.   I find that both drivers’ descriptions of the collision support the conclusion that Ms. Kusnierczyk did not shoulder check or look in her side view mirror before opening her door. Because all Ms. Kusnierczyk had time to do after opening her door was reach for her purse, I find that the collision occurred very soon after Ms. Kusnierczyk opened her door. Therefore, I find that if Ms. Kusnierczyk had shoulder checked or looked in the sideview mirror, she would have seen Mr. Ross’s car entering the parking stall. The fact that she did not see it means that she did not ensure that it was safe to open her door as required by section 203(1) of the MVA.

25.   The applicant also argued that Ms. Kusnierczyk did not breach section 203(2) of the MVA because her door was not open for an unnecessary length of time. I agree that Ms. Kusnierczyk’s door was open for a very short time and that she did not breach section 203(2) of the MVA. However, I find that her breach of section 203(1) is enough to establish that Ms. Kusnierczyk was at fault for the collision, subject to the applicant’s other arguments, which I will address in turn.

26.   The applicant says that Mr. Ross struck the car door by crossing into Ms. Kusnierczyk’s parking space. Ms. Kusnierczyk does not say anything in her statement about where Mr. Ross’s car was when it struck the door. Rather, the applicant relies on a mathematical calculation based on the size of the door and Ms. Kusnierczyk’s estimate of how open it was. However, even if I accepted the applicant’s mathematical arguments, there is no evidence about where Ms. Kusnierczyk’s car was relative to the line between the parking stalls. I find that the applicant has not proven that Mr. Ross crossed the line into Ms. Kusnierczyk’s parking stall.

27.   The applicant points out that if Ms. Kusnierczyk had exited the vehicle, her leg could have been seriously injured. He argues that it makes “absolutely no sense” that the injured person would be blamed for the injury. I find that whether a person might potentially be injured does not affect each party’s legal obligations. I reject this argument.

28.   The applicant also argues that a stationary vehicle cannot be responsible for an accident caused by a moving vehicle. However, both parts of section 203 of the MVA place duties on drivers of stationary vehicles to avoid collisions with moving vehicles. I reject this argument.

29.   Finally, while Mr. Ross had an obligation to be aware of his surroundings and to react reasonably to hazards, I find that he had no time to avoid hitting Ms. Kusnierczyk’s door. Therefore, I find that the evidence does not support a finding of contributory negligence against Mr. Ross.

30.   I find that Ms. Kusnierczyk was 100% at fault for the collision.

31.   Because the applicant has not been successful, I dismiss his claim for reimbursement of tribunal fees and dispute-related expenses. The respondents did not claim any dispute-related expenses.


ORDER

32.   I dismiss the applicant’s claims, and this dispute.

Eric Regehr, Tribunal Member




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