CASES on UNDERINSURED MOTORIST PROTECTION (UMP)

 

Underinsured Motorist Protection (UMP) is part of your Basic Autoplan policy, and protects you when the at-fault driver does not have enough coverage to pay for your damages. You are covered for up to $1 million from your own policy, even if the other driver has no insurance at all, or does not have enough insurance. The relevant statutory provisions are contained in Part 10 of the Insurance (Vehicle) Regulations.

 

If there is a dispute as to the availability or amount of UMP coverage, the issues must be resolved through arbitration under the Commercial Arbitration Act. Such decisions can be found here on the ICBC website.

 

HOW to GET STANDING at an UMP ARBITRATION

 

In GG v ICBC, the Plaintiff was injured in Washington State, and sued the at-fault party there. As any amount awarded by a Washington court would not be binding on ICBC, the Plaintiff asked ICBC to settle for the amount of the policy limits of the at-fault driver, and then to go to UMP arbitration to determine the value over and above this amount.  ICBC’S lawyer, however, would not consent to this. Despite this, the Plaintiff still proceeded to settle his claim in Washington, and then proceeded to commence an UMP arbitration hearing. The lawyer for ICBC opposed this, claiming that the Plaintiff did not have standing to do so.

 

The arbitrator agreed with the lawyer for ICBC, ruling that there are only two ways to gain standing at an UMP arbitration proceeding:  the consent of ICBC, or having an unsatisfied judgment against the tortfeasor.

 

37.  The essence of the dispute between the parties regarding the entitlement issue is whether there is a “third way” for a Claimant to establish the right to proceed to arbitration.  ICBC says there are only two ways to establish that right, namely (1) an unsatisfied judgement against the tortfeasor or (2) the consent of ICBC.  The Claimant says there is a third way, namely, by admissions of the tortfeasor, both as to fault for the accident (legal liability and legal entitlement) and as to an inability to satisfy any damages that may be awarded…The Claimant asserts that in this case compelling him to obtain judgement in the Washington State action is unfair, particularly having in mind the uselessness of an assessment of damages under Washington State law.  I agree.  However, in light of the legal authorities, I am constrained to conclude that the Claimant is not entitled to UMP compensation because he has not established the necessary prerequisites.

 

ABILITY of ARBITRATOR to MAKE LIABILITY DETERMINATIONS

 

In GG v ICBC, the Arbitrator also discussed the power of an arbitrator to make liability findings, when such findings had not previously been the subject of a liability trial.

 

71.  As I have noted previously, the scheme of UMP compensation in British Columbia, in the absence of agreement between ICBC and a claimant, is premised upon an underlying tort judgement.  Sections 148.2(1) and (6) cannot mean that either party can arbitrarily and unilaterally have any issue relating to legal entitlement to recover damages determined in an arbitration because in those instances where there is a judgement int he underlying tort action, legal entitlement to recover damages will have been judicially decided.  Section 148.2(6) must at least be intended to give an arbitrator authority to determine issues of legal entitlement including contributory negligence where there is an agreement by the parties that the issue should be determined in the arbitration.  Absent the presence of collusion or fraud in obtaining judgement in a foreign jurisdiction, I think that the scheme of UMP compensation presumes that for accidents in foreign jurisdictions, issues of legal liability including contributory negligence are conclusively determined in a judgement of the foreign court.  I do not think that Section 148.2(6) entitles either a claimant or ICBC to “relitigate” an issue of liability or contributory negligence where there has been a judicial determination om the merits of the issue in a tort action in the jurisdiction where the accident occurred….I do not think a claimant who has succeeded in obtaining a judgement after trial in a foreign jurisdiction where such potential defences were not alleged, is exposed to have such defences raised for the first time in a subsequent UMP arbitration.  If the claimant here is entitled to pursue his UMP claim, notwithstanding the entered Consent Dismissal Order in the Washington action, it seems to me that the actual Order cannot be regarded as determinative of anything and is virtually irrelevant.  In that circumstance, I think Section 148.2(6) permits ICBC to raise the issue of contributory negligence, although whether the issue could be heard on its merits would be subject to full argument on the issue of whether, under Washington Law which is determinative as to issues of liability, formal admissions of fault in the pleadings constitute a conclusive determination of liability.

 

OUT of PROVINCE DAMAGES AWARDS are NON-BINDING in UMP PROCEEDINGS

 

In Undisclosed v ICBC, British Columbia residents sued a Washington State motorist for damages for their injuries that they suffered in an accident in Washington State. The arbitrator at the UMP proceeding ruled that the Washington State jury award for damages was not binding on any subsequent ICBC UMP proceedings.

 

21.  On the facts of this case ICBC concedes the claimants have satisfied all of the prerequisite requirements laid down for UMP coverage.  Hence, it is conceded that the Washington jury verdict established liability on the underinsured motorist, resolved issues of contributory negligence and established that the damages attributable to the fault of the underinsured motorist exceeded the insurance limits and assets available to compensate the claimants.  Put another way, it is conceded that the Washington jury verdict determined that the claimants are “insureds” and (the at fault motorist) is an “underinsured motorist” for the purposes of the UMP scheme.

22.  In the majority of cases, in my experience, the parties (ICBC and the claimants) agree that the prerequisites for UMP coverage have been satisfied and the parties arrive at a settlement pertaining to UMP compensation.  Where the parties cannot agree, ICBC can follow one of two courses of action.  ICBC can either require that the claimant(s) proceed to a tort trial to determine the prerequisites necessary for UMP arbitration, or they can agree that those prerequisites have been met and proceed to an UMP arbitration by consent.

23.  In this case, the evidence satisfies me that ICBC required a tort trial to determine the prerequisites necessary for UMP arbitration.  The claimants chose Washington State as the most favourable jurisdiction to proceed with the tort trial, for good and valid reasons which are not germane to the arbitration issue before me…

28. Section 148.2(6)(a) relating to the legal entitlement to UMP coverage is relatively straightforward.  It says that where an accident for which UMP compensation is being sought occurs in another jurisdiction, the law of the place where the injury or death was suffered shall be applied to determine whether the claimants are legally entitled to recover UMP compensation and if a difference arises as to that legal entitlement, that difference shall be arbitrated under the Commercial Arbitration Act of British Columbia.  It is section 148.2(6)(b) relating to the measure of any damages and the assessment of the amount of UMP compensation payable that is at the nub of this arbitration…

33.  Turning to my interpretation of s. 148.2(6), I find that the section is properly interpreted to mean that issues of legal entitlement shall be determined by Washington law in this case and that the issues pertinent to quantum of damages shall be determined by the law of British Columbia.  I am fortified in coming to this interpretation because of the linkage between s. 148.2(6) and s. 148.1(5).  Section 148.1(5) constitutes a limiting provision and the limitation only works or works much better if the interpretation of s. 148.2(6)(b) is interpreted such that the issues pertaining to the quantum of damages shall be determined by the law of British Columbia.

 

DEDUCTIBILITY of NO-FAULT BENEFITS

 

In CD v ICBC, the arbitrator ruled that “no fault” benefits can be deducted from the overall award, just as they can be at trial.

 

32. The Respondent takes the position that nothing is recoverable for physiotherapy or massage therapy because these expenses are payable as no-fault benefits under Part 7 and, as such, are a “deductible amount” from UMP compensation.  There is no evidence that ICBC refused to pay these expenses under Part 7…I agree that the physiotherapy and massage therapy expenses are not recoverable in these circumstances as part of UMP compensation.  The vehicle repair deductible is not compensible because it is a claim relating to property damage, and UMP compensation is restricted to damages for injury or death.

 

DEDUCTIBILITY OF CPP BENEFITS

 

In ME v ICBC, the Plaintiff suffered serious injuries in a motor vehicle accident. By the time she returned to work, she had received nearly $80,000 in CPP benefits. It was agreed that ICBC could deduct this amount from the Underinsured Motorist Protection award. However, an issue arose with respect to possible future CPP payments that the Plaintiff may receive. ICBC’S lawyer argued for a reduction of over $135,000, however the arbitrator only allowed for a reduction of $20,000.

 

102.  I agree with Counsel that the standard of proof to be applied to future hypothetical events is simple probability and not the balance of probabilities.  That being said it remains that the probability, possibility or chance that a future event may occur, in this case the Claimant applying for and receiving CPP disability benefits in relation to her accident injuries, must be a real and substantial one.

 

103.  In addressing whether or not there is a real and substantial possibility of the Claimant receiving CPP disability benefits in the future one has to consider the relative likelihood of both positive and negative contingencies that might affect the Claimant’s ability to work and the anticipated course with respect to her accident injuries/disabilities…

 

116.  It has been 13 years since the accident.  2010 will be the first full year of employment the Claimant has maintained since the accident.  To assume the Claimant’s accident injuries, in particular, her very serious brain injury and deficits are going to have no impact on her ability to work to age 65 is unreasonable.

 

117.  However, it does not automatically mean that the impact translates into a real and substantial risk that the Claimant will face a severe and prolonged mental or physical disability such that she is not substantially gainfully employable as defined in the CPP Legislation.

 

118.  That is not to say there is no risk whatsoever.  I cannot ignore the concerns outlined by the Claimant’s Mother.  As well, I cannot ignore the evidence of Dr. LeBlanc.  It may be difficult for the Claimant to find jobs over the course of her working life.  Such jobs must have structured routine, few distractions and no multi-tasking.  Her cognitive issues may be aggravated in unfamiliar and stressful situations.

 

119.  Having regard to all of the evidence, I believe there is a 15% chance or possibility that the Claimant will apply for and receive disability benefits from CPP in connection with her accident injuries.

 

120.  The parties agree that the present day value of the CPP disability payments to the Claimant’s age 65 is $135,652.00 and, in this regard, the appropriate contingency deduction to be made pursuant to Regulation 148.1(1)(f) is $20,347.80

 

In SPW v. ICBC, the arbitrator again only allowed for a partial deduction for future CPP payments.

 

165. In order to determine if future payments should be considered as “applicable deductible amounts” under the Regulations the law is quite settled that there has to be some evidentiary foundation to determine likelihood of the continuance and certainty of such future payments. The onus of proof that these payments will continue is on the Respondent. While the evidence given with respect to payments having been received in the past is of assistance, it does not provide conclusive evidence that the payments will continue in the future.
166. That being said, having regard to the submissions delivered by counsel and the admissions made by the Claimant and his counsel and my own findings that the Claimant does have some residual earning capacity, which may or may not translate into income depending on what the Claimant does vocationally, I find that there is a 50% contingency of the likelihood that his CPP payments will continue in the future and in this regard 50% of the net present value of the future payments should be deducted from the award.

 

DEDUCTIBILITY of HOSPITAL INSURANCE PAYMENTS

 

In APS v. ICBC, the Plaintiff was injured in the United States, and received hospital treatment there, and in Canada. The cost for hospital services was nearly $200,000. ICBC’S lawyer argued that this amount should be deducted from the overall Underinsured Motorist Protection damages award, however the arbitrator rejected this notion.

 

130.  The services and benefits covered under out universal compulsory medical coverage, which are incurred in almost every under insured motorist action, cover amounts paid in the past and those to be paid in the future.  Given the catastrophic nature of many of the cases that result in UMP Claims the costs are often considerable.  Had the Legislature intended for UMP awards to be net of these services and benefits then it would have specifically provided for such a deduction in clear and unambiguous terms in the legislation.

 

131.  Having regard to the nature and extent of the evidence tendered and to the overall statutory intention of Subsection 148.1(1) of the Regulations, I do not find the Hospital Insurance Program payments to be an applicable deductible amount pursuant to paragraph (i).  As stated above, had the Legislature intended such potentially considerable deductions to come into play it would most certainly have specifically stated so.

 

132.  If I am wrong about the above, I still find having regard to the wording of subsection (i), that such amounts would not be payable to the insured as a benefit or right and claim to indemnity.  They do not represent pecuniary payments of a like nature for which the Claimant is claiming compensation pursuant to the tortious conduct of the underinsured motorist and which would have been recovered thus resulting in double recovery.