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楼主: 郭国汀

Dispute of Insurance contract with Insurer

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 楼主| 发表于 10/19/2019 15:24:29 | 显示全部楼层
本帖最后由 郭国汀 于 10/20/2019 17:39 编辑

Desmet v. Insurance Corporation of British Columbia et al
Collection
Small Claims Decisions
Date
2018-10-24
Neutral citation
2018 BCCRT 649
File numbers
SC-2017-007497
Decision type
Final Decision





Date Issued: October 24, 2018
File: SC-2017-007497
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Desmet v. Insurance Corporation of British Columbia et al,
2018 BCCRT 649
BETWEEN:
Sean Desmet
APPLICANT
AND:
Insurance Corporation of British Columbia and Iulian Andone
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair
INTRODUCTION

1)        The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded the applicant Sean Desmet was 100% at fault in a March 4, 2017 motor vehicle collision with the respondent Iulian Andone. Mr. Desmet, who was the rear driver in the collision, says ICBC should have found Mr. Andone entirely at fault.

2)        The applicant seeks an order that ICBC’s liability decision be reversed, and that Mr. Andone be held 100% responsible for the collision. The applicant is self-represented, and the respondents are represented by Brian Hanson, an ICBC employee.

JURISDICTION AND PROCEDURE

3)        These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over strata property 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. 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.

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 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.

ISSUE

7)        The issue in this dispute is whether the applicant is entitled to ICBC’s re-assessment of liability in a motor vehicle collision, such that he is held 0% responsible.

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)        This is not a tort claim alleging personal injury or damage. Rather, it is a claim under the applicant Mr. Desmet’s policy of insurance with ICBC. In essence, Mr. Desmet says ICBC failed in its duty to assess his liability under the insurance contract. It is undisputed that Mr. Desmet and Mr. Andone have not made any claim for damage or injury, and thus there is presently no financial impact from this decision. For the reasons that follow, I find that Mr. Desmet has not proved his claim.

10)     The root of Mr. Desmet’s claim is that he says Mr. Andone “slammed on the brakes without reasonable explanation” and that this was not something a reasonable and prudent driver would expect.

11)     At this point, I note the courts have consistently held that the onus is on the rear-ending driver to prove the collision was not their fault. As the applicant in this dispute, Mr. Desmet bears this onus in any event. However, in Wright v. Mistry, 2017 BCSC 239 and Skinner v. Fu, 2010 BCCA 321, the courts further concluded that as a general rule the rear driver will be liable for a rear-end collision, because “normally a sudden stop does not create an unreasonable risk of harm (my bold emphasis added). The courts have held that it is open to the rear driver to offer an explanation as to how the collision could have occurred without his negligence, but Mr. Desmet bears the onus of proving this.

12)     It is undisputed the collision occurred at a low speed, with Mr. Andone as the front driver and Mr. Desmet as the rear driver. It is also undisputed that the minor collision occurred while both vehicles were exiting an intersection on a newly green light. There is no evidence that it was wet or slippery or that the weather or anything else made it hard to see. It was daylight. It is also undisputed that there were no other cars or hazards in front of Mr. Andone.

13)     Mr. Desmet alleges that the parties had 2 separate instances of a “near collision”, before the collision occurred. I find the fact that Mr. Desmet had to apply his brakes “heavily” at an earlier point to avoid a collision with Mr. Andone is some evidence that Mr. Desmet ought to have been particularly cautious in following behind him. I say the same about Mr. Desmet’s own evidence about Mr. Andone allegedly driving erratically before the collision.

14)     Mr. Desmet submits that the damage would have been far greater had he not left “more than reasonable amount of room”. This statement does not prove that Mr. Desmet could not have avoided the collision. The applicant cites the 1995 decision in Ayers v. Singh, 1995 CanLII 2314 (BCSC) as a precedent for finding the front driver responsible. Ayers was appealed by the defendant front driver, and the BC Court of Appeal dismissed the appeal (1997 CanLII 3410). In that case, the plaintiff was a third driver behind the defendant, with a car in between. The court concluded the front driver was liable for stopping suddenly because it accepted the plaintiff could not have avoided the accident.

15)     I find Ayers is distinguishable, in that Mr. Desmet knew Mr. Andone had been driving slowly and allegedly erratically, and because Mr. Desmet honked at him shortly before Mr. Andone stopped. I find Mr. Desmet has offered no reasonable explanation of why he could not have avoided the collision. While Mr. Desmet says that Mr. Andone accelerated after the honking and then stopped, I find this disputed allegation is not proved. I also find it does not address the issue before me, which is whether Mr. Desmet could have avoided the collision. In any event, based on Mr. Desmet’s diagrams, I infer Mr. Andone may have accelerated briefly to get through the intersection and then braked because Mr. Desmet had honked at him. I am not prepared to conclude that Mr. Andone stopped suddenly to intentionally cause the accident as alleged.

16)     Mr. Desmet says that Mr. Andone’s “story” has changed twice since the collision. I find Mr. Desmet has not proved Mr. Andone’s account has been substantially inconsistent. In his March 6, 2017 telephone statement to ICBC, Mr. Andone said that Mr. Desmet had honked at him, the light turned green and he proceeded, but that he has a stick shift and “was going slowly and braked”. Other telephone notes by ICBC indicate they had trouble hearing Mr. Andone as the phone sounded muffled.

17)     ICBC submits that Mr. Andone says prior to the collision he was having a mechanical issue with his transmission. This submission is not inconsistent with his going slowly and braking. Again, it is undisputed that at the intersection, Mr. Desmet began honking his horn at Mr. Andone, because Mr. Andone was driving slowly. ICBC says Mr. Andone stopped his car because he was unsure about what the issue was or if there was some hazard he was not aware of. I find Mr. Desmet has not proved this was an unreasonable response in the circumstances.

18)     In his reply submission, Mr. Desmet says Mr. Andone’s car was not likely to have a transmission issue, though there is no evidence he inspected the vehicle. While Mr. Desmet may have a mechanical background, I find this submission to be speculative. Again, Mr. Desmet acknowledges that he honked his horn because Mr. Andone was “rolling slowly through the intersection and traffic was beginning to move”. Mr. Andone’s unusually slow speed, prompting Mr. Desmet to honk at him, was another indicator that Mr. Desmet should have taken particular care to follow at a safe distance.

19)     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.

20)     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.

21)     Mr. Desmet says ICBC failed to conduct a thorough examination on the surrounding circumstances. Mr. Desmet says ICBC made the “easy decision” to put 100% liability on him, the rear driver. In support of this position, the applicant points to the fact that ICBC used “generic” accident mark-ups found in its case file, which the applicant says reflect the wrong side of the road. Mr. Desmet also says ICBC’s cited cases are irrelevant as, for instance, his collision did not involve excessive speeding. I disagree. I find it is clear ICBC was using examples in its letter to Mr. Desmet, but in its written description of the accident it referenced the facts accurately. The fact that ICBC listed various “leading” rear-end cases that may not have exactly the same facts does not mean ICBC did not properly investigate this collision.

22)     I acknowledge that in closing its letter, ICBC wrongly referred to a “middle vehicle” and an unsafe lane change. I find this was an unfortunate instance of using a former precedent letter, but it is not material. ICBC had the relevant information, as set out in its substantive written narrative. I find ICBC reasonably concluded that as the rear driver, Mr. Desmet had followed too closely, contrary to section 162 of the Motor Vehicle Act. Section 162(1) states that a rear driver must not follow more closely “than is reasonable and prudent”, having regard to the speed of the vehicles, the amount and nature of traffic, and the highway’s condition.

23)     In summary, in order to succeed in his claim, Mr. Desmet 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. Desmet 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. Desmet 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.

Shelley Lopez, Vice Chair




 楼主| 发表于 10/19/2019 15:27:34 | 显示全部楼层
本帖最后由 郭国汀 于 10/20/2019 18:19 编辑

Sze v. ICBC et al
Collection
Small Claims Decisions
Date
2019-09-19
Neutral citation
2019 BCCRT 1104
File numbers
SC-2019-004357
Decision type
Final Decision





Date Issued: September 19, 2019
File: SC-2019-004357
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Sze v. ICBC et al, 2019 BCCRT 1104
BETWEEN:
HOK LING SZE
APPLICANT
AND:
INSURANCE CORPORATION OF BRITISH COLUMBIA, Jin Song Liu, and Xiao Xue Sun
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Eric Regehr
INTRODUCTION

1.      This is a dispute about whether the applicant, Hok Ling Sze, opened his car door and damaged a car that I infer was owned by the respondents, Jin Song Liu and Xiao Xue Sun (owners). The applicant’s insurer, the respondent Insurance Corporation of British Columbia (ICBC), internally determined that the applicant was at fault. The applicant says that he did not cause any damage. The applicant claims $2,000, which he says was the cost of the paint job to repair the owners’ car.

2.      The applicant is self-represented. The owners are represented by an ICBC employee, Colleen Souveryn.

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 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.

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.

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 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

7.      The issues in this dispute are:

a.    Did the applicant damage the owners’ car?

b.    Did ICBC breach is statutory obligations in investigating the accident?

EVIDENCE AND ANALYSIS

8.      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.

9.      The applicant was parked in a shopping mall parking lot on April 1, 2019. The owners’ vehicle was parked in the stall beside the applicant’s driver’s side.

10.   As mentioned above, this dispute is about whether the applicant damaged the owners’ car, specifically a scratch and dent on the side of the owners’ car (dent). The owners say that the applicant caused the dent when he opened his driver’s side car door and hit their car.

11.   The applicant does not explicitly admit that he hit the owners’ car. He also does not deny it. Rather, the applicant’s submissions focus on whether he caused the dent. I find that the applicant’s submissions, discussed in more detail below, implicitly acknowledge that he hit the owners’ car when he opened his door.

12.   The question is whether the applicant caused the dent. The applicant provided numerous photographs to support his arguments.

13.   The applicant’s first argument is about the paint residue in the dent. The applicant says that the paint residue is a different shade of grey than his car’s paint. He also says that the owners’ car has a second dent with the same paint residue. He therefore says that another car must have caused the dent at issue in this dispute.

14.   I find that the photographs in evidence are inconclusive on this point. While the dent appears to be a lighter colour than the applicant’s car, I find that it is not possible to conclude that this is paint residue from another car. I find that it is equally plausible that it is simply the colour of the metal underneath the car’s paint that was exposed by the scratch.

15.   The respondent’s second argument is about a paint chip on his door. ICBC relied, in part, on this paint chip as proof that his door damaged the owners’ car. The applicant says that the paint chip is on the outside of the door, not the edge of the door. The applicant also says that based on his measurements, the paint chip on his door is 4 to 5 centimeters higher than the dent. He says that it is impossible that he chipped the paint on his door when he hit the owners’ car.

16.   Again, I find that the photographs are inconclusive. While the applicant provided photographs of how high off the ground the paint chip on his door is, there is no objective evidence about how high off the ground the dent was on the owners’ car. The applicant simply asserts that the dent was 4 to 5 centimeters lower.

17.   I find that the key piece of evidence is a photograph that the applicant took at the scene showing his open car door contacting the owners’ car. The point of contact appears to be directly on the dent. The applicant says that his car door did not, in fact, contact the owners’ car directly on the dent, even though it looks that way in the photograph. He says that the points of contact “appear to line up” because of the “parallax effect”.

18.   I infer from the applicant’s submission that the parallax effect is an optical illusion that operates to make it look like the doors touched where the owners’ car was damaged, when in fact they did not. In effect, the applicant asks me to ignore the photographic evidence on the grounds that it is not reliable. However, the applicant did not provide any explanation about what the parallax effect is or how it affects the photograph.

19.   In the absence of a convincing explanation about the parallax effect, I prefer the simpler explanation that the photograph accurately shows the point of contact between the cars, which was directly on the dent.

20.   Given the evidence before me, the applicant has not shown that he did not damage the owners’ car when he struck it with his car door. Based on the weight of the evidence, I find that the applicant caused the dent.

21.   Even if I had found that the applicant had not damaged the owners’ car, I would not have ordered the owners to reimburse him the $2,000 he claimed because he provided no evidence to support the amount of the claim, such as an invoice.

22.   I dismiss the applicant’s claim against the owners.

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

23.   As noted above, the applicant wants an order that overturns ICBC’s internal liability assessment. 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).

24.   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. 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.

25.   ICBC provided copies of the emails between its adjuster and the applicant. In his emails to ICBC, the applicant set out essentially the same arguments as in this dispute. The ICBC adjuster’s response suggests that they considered each of the applicants’ arguments but was not persuaded. I find that the ICBC employee’s consideration of the applicant’s emails and photographs was reasonable.

26.   Furthermore, ICBC provided an email from the mall’s security contractor. Apparently, there was security video of the incident. The mall’s security contractor had a policy that it only provides access to security video to the police, not to ICBC. The employee said that because of the camera’s angle, it was not possible to see contact between the applicant’s door and the owners’ car. While ICBC did not ultimately get any helpful security footage, I find that its attempt is an indication that it made reasonable attempts to investigate the incident.

27.   I find that the applicant has not proven that ICBC failed to reasonably investigate the incident. I dismiss the applicant’s claim against ICBC.

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

ORDER

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

Eric Regehr, Tribunal Member




 楼主| 发表于 10/19/2019 15:29:57 | 显示全部楼层
本帖最后由 郭国汀 于 10/20/2019 18:36 编辑

Sachwani v. Insurance Corporation of British Columbia et al
Collection
Small Claims Decisions
Date
2018-06-19
Neutral citation
2018 BCCRT 268
File numbers
SC-2017-004479
Decision type
Final Decision





Date Issued: June 19, 2018
File: SC-2017-004479
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Sachwani v. Insurance Corporation of British Columbia et al,
2018 BCCRT 268
BETWEEN:
Aqeel Sachwani
APPLICANT
AND:
Insurance Corporation of British Columbia and Li Gao
RESPONDENTS
REASONS FOR DECISION
Tribunal Member:
Shelley Lopez, Vice Chair
INTRODUCTION

1.         The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded the applicant Aqeel Sachwani’s vehicle was 50% at fault in an April 1, 2017 collision with the respondent Li Gao. The applicant says ICBC should have found Li Gao entirely at fault, rather than only 50% liable. At the time of the collision, the applicant was a passenger and his wife was driving his car.

2.         The applicant claims $2,500, although the applicant’s car repair bill appears to be $2,052.91. The applicant also wants ICBC to apologize for his time wasted and associated frustration. The parties are self-represented, with ICBC represented by an employee.

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.

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 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

7.         The issues in this dispute are:

a.      Was ICBC’s 50% liability assessment against the applicant appropriate, and in particular, did the applicant’s wife back his car out safely?

b.      To what extent, if any, is the applicant entitled to his 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.         The collision between the applicant’s car and Ms. Gao’s car happened as each car backed out of opposite parking spaces.

10.      As noted, this dispute is about ICBC’s assessment that the applicant’s wife was 50% responsible for the collision, and the applicant’s claimed damages relate to his vehicle repair costs. ICBC’s assessment was that both the applicant’s wife and Ms. Gao equally failed to back out of their spots safely, as required by section 193 of the Motor Vehicle Act.

11.      I note this is not a personal injury dispute and nothing in this decision prevents the individual parties from pursuing any personal injury claim, although based on the evidence before me it appears no one was injured. I say this because the applicant did not frame his dispute as a tort action or one of negligence against Li Gao, although Li Gao is named as a respondent. That said, even if the applicant had framed his claims in negligence, I find my conclusions below about liability would be the same.

12.      Section 76(4) of the Insurance (Vehicle) Act says that the insurer may at any stage compromise or settle the 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.

13.      In this case, the applicant seeks: an order overturning ICBC’s 50% liability assessment against him, a finding that Ms. Gao was entirely at fault for the accident, and a full reimbursement of his vehicle repair costs. To do so, the applicant 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 responsibility for the collision, with 50% liability attributed to each of the applicant and Ms. Gao (see Singh v. McHatten, 2012 BCCA 286, and Innes v. Bui, 2010 BCCA 322 at para. 33).

14.      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 Corp. of British Columbia, 2012 BCSC 283). I find ICBC has done so, as discussed further below.

15.      In addition to section 193 of the Motor Vehicle Act, ICBC relies on section 1 of the Negligence Act, which provides that if 2 or more people cause loss to more than one of them, each person bears responsibility to remedy the loss based on the degree to which they were at fault. The Negligence Act states that if it is not possible to establish different degrees of fault, liability must be apportioned equally.

16.      Based on the photos in evidence, I accept that at the time of the collision the applicant’s car was already in the roadway, out of its parking stall. I similarly find Ms. Gao’s vehicle was backed out of her stall at the time of the collision, which is consistent with the parties’ statements and the photos in evidence.

17.      Both the applicant and Ms. Gao allege that the other’s vehicle was reversing quickly. I agree that ICBC’s conclusions were reasonable, as set out in its letter to the applicant finding his vehicle was 50% responsible for the collision:

Both [the applicant’s wife] and the other driver advised that both reversed from a parking stall. Both advise that they checked for traffic prior to reversing. Your video footage only shows what is happening at the front of your vehicle. Unfortunately it does not prove that [the applicant’s wife] checked for traffic or that the other driver reversed out of their [stall] quickly. We are unable to prove timing or who reversed first and the speed in which they reversed. When it is impossible to ascertain which of the conflicting versions reflect the true circumstances of the loss then we have to assess an equal division of liability.

18.      There is no question Ms. Gao was at least partially at fault. The issue in this dispute is whether the applicant’s wife was also at fault. The fact that at the time of the collision the applicant’s wife’s had been stopped, for what I find was 1 to 2 seconds at most, is not determinative. That stoppage was for such a short period of time that I find ICBC was reasonable in concluding it was not possible to attribute fault other than equally. The crux of this dispute is that both vehicles were reversing at approximately the same time. I find the applicant is not entitled to the remedies sought.

19.      In accordance with the tribunal’s rules, as the applicant was unsuccessful in his claim, I find he is not entitled to reimbursement of tribunal fees or dispute-related expenses.

ORDER

20.      I order that the applicant’s claims are dismissed.

Shelley Lopez, Vice Chair




 楼主| 发表于 10/19/2019 15:32:38 | 显示全部楼层
Louie v. Insurance Corporation of British Columbia
Collection
Small Claims Decisions
Date
2018-08-14
Neutral citation
2018 BCCRT 449
File numbers
SC-2017-004054
Decision type
Final Decision
[url=https://decisions.civilresolutionbc.ca/crt/crtd/en/344233/1/document.do][/url]





Date Issued: August 14, 2018
File: SC-2017-004054
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Louie v. Insurance Corporation of British Columbia, 2018 BCCRT 449
BETWEEN:
Gordon Louie
APPLICANT
AND:
Insurance Corporation of British Columbia
RESPONDENT
REASONS FOR DECISION
Tribunal Member:
Kate Campbell
INTRODUCTION

1.         The respondent insurer, Insurance Corporation of British Columbia (ICBC), internally concluded the applicant Gordon Louie was 100% at fault in a January 15, 2017 collision with a dump truck driven by Rajbir Singh Chatrath.

2.         The applicant says ICBC should have found Mr. Chatrath entirely at fault. He seeks a declaration that Mr. Chatrath was 100% at fault, and a refund of the $300 insurance deductible.

3.         ICBC says the applicant was 100% responsible for the collision under section 158 of the Motor Vehicle Act (MVA) because he was passing the dump truck on the right hand side and collided with it.

4.         The parties are self-represented, with ICBC represented by an employee.

JURISDICTION AND PROCEDURE

5.         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.

6.         The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. 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 while there are inconsistencies in the evidence about the circumstances of the collision, I find I can fairly resolve the dispute based on the documentary evidence before me. This conclusion is consistent with the court’s observations of the tribunal’s processes in the recent decision in Yas v. Pope, 2018 BCSC 282.

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.

9.         Mr. Chatrath, the dump truck driver is not a party to this dispute. However, in the interests of fairness he was granted the opportunity to provide a statement and submission to the tribunal.

ISSUES

10.      The issues in this dispute are:

a.      Did ICBC properly assess the applicant as 100% liable for the collision?

b.      If not, should the applicant’s $300 insurance deductible be refunded?

EVIDENCE AND ANALYSIS

11.      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.

12.      In this dispute, the applicant seeks an order overturning ICBC’s 100% liability assessment against him, and a refund of his wife’s insurance deductible. To succeed, the applicant 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 100% responsibility for the collision to the applicant (see Singh v. McHatten, 2012 BCCA 286).

13.      At the time of the collision, the applicant was driving a compact car owned by his wife. Both the applicant’s car and dump truck driven by Mr. Chatrath were travelling in the same direction (south), approaching a 4-way stop intersection. There were 2 southbound lanes. The leftmost southbound lane was unmarked, allowing for traffic to proceed straight through the intersection or to turn left. The right lane was marked with an arrow indicating right turn only.

14.      The applicant’s written statement describes the subsequent events, which I paraphrase as follows:

•           When the applicant approached the intersection in the right southbound lane, the dump truck and at least 1 other car were stopped in the left southbound lane, and waiting at the stop sign. All vehicles in the left lane were completely within their lane of travel, and the dump truck had its left turn signal on.

•           There was another vehicle stopped at the right lane at the stop sign, waiting to turn right. The applicant “pulled up to the vehicle waiting to turn right” and came to a complete stop, with his right turn signal on. The applicant was completely within his lane of travel. The dump truck was behind and beside the applicant, to his left.

•           After a few seconds, vehicles in both lanes ahead of the applicant started moving. The applicant was completely stopped when he felt impact on his vehicle and heard loud crunching. He realized the dump truck from the left lane struck his vehicle on the rear bumper and rear quarter area. He honked his horn several times, and the dump truck stopped.

•           After a few seconds, the dump truck continued moving forward and impacted the applicant’s vehicle along the rear driver’s side door. The applicant honked several times again. The dump truck stopped, and the applicant quickly pulled forward away from the dump truck in the event it began moving again.

•           The applicant stopped his vehicle and got out. When he spoke to the dump truck driver, the driver said he did not see the applicant.

•           The applicant took photographs of the scene before they both moved their vehicles.

15.      The applicant says that immediately before the collision, the dump truck was fully within the left lane, with its left turn signal on. The applicant says the dump truck did not move over into the right lane until it struck the applicant from behind.

16.      The dump truck driver, Mr. Chatrath, provided a statement to ICBC giving a contrary account of events. He said he approached the intersection in the right lane and was the only vehicle at the intersection. He says he wanted to turn right at the stop sign, so he straddled the right and left lanes in order to make a wide right turn. He says he stopped at the stop sign with his right turn signal on, and started making the right turn when the applicant “attempted to sneak past” him in the right lane. Mr. Chatrath said that as he proceeded to turn right, he felt a bump and immediately stopped.

17.      Based on the applicant’s written statement, he admits that he passed the dump truck on the right. The applicant says the dump truck was already waiting in line in the left lane at the stop sign when he approached the intersection, and then he passed the dump truck in the right lane in order to turn right. Section 158(1) of the MVA says that a driver must not overtake and pass on the right of another vehicle except in specified circumstances. These circumstances include the following:

•           when the vehicle overtaken is making a left turn or its driver has signalled his or her intention to make a left turn,

•           when on a laned roadway there is one or more than one unobstructed lane on the side of the roadway on which the driver is permitted to drive.

18.      Section 158(2) of the MVA also says a driver must overtake and pass another a vehicle on the right only when the movement cannot be made safely.

19.      Thus, the central conflict in this dispute is whether Mr. Chatrath was turning right at the time of the collision, or whether he was signalling to turn left and then hit the applicant.

20.      ICBC says the applicant was 100% at fault for the accident because he was passing the dump truck on the right at the time of the collision. ICBC says this decision was based on the information provided by the applicant and Mr. Chatrath, as well as the accident scene photographs provided by the applicant and the photographs of the damage to the applicant’s car. In particular, ICBC says the photographs show that the applicant’s left rear bumper was pulled backwards, which is consistent with the applicant driving forward at the time of the collision. ICBC says the applicant collided with the dump truck, which was stopped.

21.      I do not agree with ICBC’s submissions as set out in the Dispute Response, as they are not consistent with Mr. Chatrath’s January 17, 2017 statement or the January 19, 2017 summary of Mr. Chatrath’s accident description contained in the ICBC file notes. In particular, Mr. Chatrath never said his vehicle was stopped at the time of the collision. Rather, in the January 17, 2017 statement, he said he had just moved from the stop sign to turn right, and started to turn right in first gear. He said he felt a bump “as I proceeded”. The January 19, 2017 summary does not mention the actual collision at all, but only describes the preceding events.

22.      Also, ICBC submits that Mr. Chatrath was stopped behind 1 vehicle at the stop sign, so he would be very close to the intersection. In the 2 statements provided in evidence, Mr. Chatrath never said he was stopped behind 1 vehicle. Rather, in his January 17, 2017 statement, he said “I was the only vehicle at the intersection”. Neither of his statements mention any vehicles at the intersection other than the applicant’s.

23.      The January 19, 2017 summary contained in the ICBC claim file indicates that Mr. Chatrath said he stopped at the stop sign, and then the applicant attempted to sneak by him and the collision occurred. I find that this account is inconsistent with the photographs taken at the accident scene. These photographs show debris, including glass or plastic fragments, laying on top of the white-painted right turn arrow on the road. This is at least 1 car length behind the stop line and the stop sign. I find that these fragments came from the applicant’s vehicle, based on the damage photographs provided in evidence. Thus, the collision occurred well back from the stop sign. If Mr. Chatrath was turning right after stopping at the stop sign at the time of the collision, as set out in the January 19 summary, the accident debris would have to be much closer to or past the stop sign, instead of well back from the intersection.

24.      I also note that based on the post-accident photographs, the dump truck wheels are all pointing straight ahead, rather than turned to the right. The dump truck is still well behind the stop sign. This visual evidence does not support Mr. Chatrath’s account of a collision during a right turn from the stop sign with an immediate stop thereafter. I note that the January 19 summary says Mr. Chatrath stopped after the collision, and does not say he straightened his wheels or moved the truck in any way.

25.      I find that ICBC’s findings about the accident do not account for these inconsistencies in the evidence. Rather, I find the accounts provided by the applicant to be more consistent.

26.      For reasons that are unclear, ICBC did not obtain a statement from JI, who was a passenger in the applicant’s car at the time of the accident, and who was the only identified non-driver eyewitness. JI’s written statement provided as evidence in this dispute says they stopped at the intersection in the far right lane, with around 2 cars in front of them at the intersection. JI says the left rear of their car was then hit from behind by the truck. JI says the truck continued to drive forward, still hitting their car, and then stopped. He says the applicant then drove his car forward and a little bit away from the truck.

27.      I find that JI’s account of the collision is substantially similar to the applicant’s. JI’s statement is clear and contains some level of detail. I find it persuasive and place significant weight on it.

28.      The applicant went through ICBC’s internal claims assessment review process. The written decision he received says the applicant performed a “right turn overtake”, and was therefore 100% responsible. The ICBC arbiter relied primarily on the photographs of the damage to the applicant’s vehicle, which show the rear bumper cover “pulled back”, “suggesting that his vehicle was in forward motion at the time of the initial impact.”

29.      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 Corp. of British Columbia, 2012 BCSC 283). I find ICBC has not done so in this case.

30.      In particular, ICBC failed to seek a statement from eyewitness JI, and also failed to say why. I also find that ICBC failed to consider that the location of the accident debris shown in the scene photographs in inconsistent with Mr. Chatrath’s account of a collision during a right turn commenced after stopping at the stop sign. The ICBC liability review document does not even mention the applicant’s assertion that the dump truck was preparing to perform a wide left turn at the time of the collision.

31.      ICBC submits that dump truck’s right turn signal was activated at the time of the collision. However, this is not clear from the photographs in evidence, and in any event is not determinative because the photographs were taken several minutes after the accident and could have been turned on after the collision.

32.      ICBC submits that the “kinking” shown in some of the damage photographs of the applicant’s car is consistent with a side impact. However, ICBC has provided no expert opinion to support that assertion. Moreover, ICBC has not provided a corresponding explanation of how the dump truck’s front bumper was scraped during a right turn. Based on the photographs, during such a turn the large front wheels would effectively block the dump truck bumper from being hit from behind by a small car such as the applicant’s. Thus, the dump truck damage does not appear consistent with Mr. Chatrath’s account of a collision during a right turn from the stop sign.

33.      It also appears that ICBC did not inspect the dump truck, and did not take the dump truck damage into account when determining the crash events.

34.      For these reasons, I find that ICBC’s conclusion that the applicant was 100% responsible due to passing on the right was not reasonable. Instead, I find that Mr. Chatrath struck the applicant’s vehicle on the left rear panel and bumper, and was 100% responsible for the collision.

35.      I therefore find that the $300 deductible for the applicant’s car insurance (owned by his wife), must be refunded.

36.      Under section 49 of the Act, and the tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees. As the applicant was successful in this dispute, I order that the respondent pay the applicant $125 as reimbursement for tribunal fees. There were no dispute-related expenses claimed.

37.      The applicant is also entitled to pre-judgment and post-judgment interest under the Court Order Interest Act (COIA), as set out below in my order.

ORDERS

38.      I order that within 30 days of this decision, the respondent refund the $300 insurance deductible for the applicant’s wife’s car, plus $3.92 in pre-judgment interest under the COIA and $125 as reimbursement of tribunal fees.

39.      The applicant is entitled to post-judgment interest under the COIA.

40.      Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.

41.      Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.

Kate Campbell, Tribunal Member






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