Your car insurance is a contract between you and ICBC. That contract comes with a number of conditions that you should know about. Additionally, your optional insurance, such as your collision or comprehensive coverage, form separate contracts with ICBC that also contain separate conditions.
ICBC Can Deny Insurance Coverage
When you get in a motor vehicle accident, ICBC may investigate you and try to deny you insurance coverage. If you are denied coverage, then you will be liable for third-party damages. This means that you have to pay for the damage to any other cars and property and any personal injury claims. These damages are generally quite large.
Also, if you are not covered, ICBC will not pay your claims. This means you will not be paid out for your vehicle nor compensated for your injuries.
If ICBC investigates and determines you have breached your conditions, then ICBC will come after you for everything they paid out in the accident. This can result in massive debt to ICBC and substantial consequences to your driver’s licence and insurance.
ICBC Collision and Comprehensive Coverage: What Constitutes An ICBC Breach?
There are a number of common grounds for breaches:
- A failure to cooperate with ICBC;
- A false statement;
- A finding that the driver is impaired;
- A motor vehicle-related Criminal Code conviction;
- A misrepresentation of the principal operator or rate class;
- A finding that the driver drove without consent of the owner;
- A conviction for driving while prohibited;
- A failure to comply with the conditions of the driver’s licence;
- A failure to remain at the accident;
- A finding that the driver was in a race;
- A finding that the driver was trading or transporting illicit goods;
- A finding that the driver was attempting to escape arrest or police action;
- A finding that a person permitted a driver to do any of the above;
The above is not an exhaustive list, rather it serves to illustrate the numerous ways in which ICBC can breach your insurance.
An ICBC investigation begins immediately. From the day you get in a motor vehicle accident, you are required to give notice and cooperate with ICBC. Any failure to do so can result in a breach.
If you are in an accident, it is important to get good legal advice even before you report the accident. Or, if you are facing a principal operator breach from ICBC, it is important to receive proper legal advice in your proceedings. An experienced lawyer is important for drafting a proper statement, investigating the circumstances of the allegations, determining whether there is in fact and in law a breach, negotiating with ICBC, preparing a lawsuit if necessary, dealing with any debt, and more.
As we know, fault is the name of the game in compensation for civil personal injury claims. If you want damages for something (such as for your injuries suffered in a car accident), you have to show why the other party involved caused you to suffer a loss. Just being hurt is not enough. Causation is key. Entire trials are run just to determine who caused what damage, separate and apart from determining what the damage actually is.
If you are stopped at a red light and the evidence is that you were rear-ended by a speeding driver, your legal position is obviously very strong, and any damages you can prove will be easier to demand from the other side during litigation or settlement negotiations. But if the evidence is that you were the careless driver, then don’t expect ICBC to pay much for your injuries that resulted from the crash. They will say that you were the author of your own misfortune.
But those are extremes. Fault is often the subject of debate – such as in cases where the car accident is the result of a left turn or a lane change. In cases like these, legal fault is less clear and it’s the discovery of all the facts that governs the outcome of the case. For example, it would be important to know things like, how fast was each car going? Are there any witnesses who can advise on how the accident took place? Is there any video showing the accident? Which motorist is worthy of blame for the accident? Or, if both of them are, which motorist is worthy of more of the blame? At trial, if the court rules that the plaintiff driver is 25% to blame for the accident and the defendant 75%, then obviously the plaintiff can only be awarded 75% of the value of his or her proven damages.
Sometimes a person might say, “I was in an accident. But the other driver came up to me after the crash and kept apologizing, so he should be at fault.”
Not so fast. While the testimony of what witnesses will say can be evidence of some things, the law will not allow apologies to be evidence of fault. It’s codified in a statute called the Apology Act. The court will not care about who apologized for what after an accident, no matter how polite the defendant was at the scene. The court will want evidence of facts respecting how the accident took place.
So fault matters. The exception is when you are trying to obtain accident benefits under your insurance contract with ICBC – such as payment of reasonable medical expenses. Those benefits are generally payable regardless of who caused the accident. They are also known as “no fault” benefits.
If you are injured in a car accident, tell us everything about how it took place. Contact us and we’ll advise on the nature of your claim.
Mar 16, 2018
False Statements and ICBC
“ICBC says I gave a false statement. Can they breach my insurance?”
One way in which ICBC can treat you as being in “breach” of your auto insurance is if they think you provided a false statement. For example, if you get into an accident but misrepresent the truth of what happened to ICBC, they may have grounds to deny you insurance coverage respecting any damages (to persons or property) that you have caused with your vehicle.
ICBC Insurance Breach: False Statements
There are certain principles governing the definition of a false statement. ICBC must prove that what you said was a “wilful false statement.” They must prove that the statement was done intentionally, knowingly, and purposely, without justifiable excuse. They must also prove that the statement was material to the management or payment of the claim by being capable of affecting the mind of the insurer, either in the management of the claim or in deciding to pay it. The involvement of alcohol, for example, will likely be material to ICBC and affect the handling of a claim.
Not everything will constitute a false statement, however. A statement made carelessly, thoughtlessly, or inadvertently is not necessarily false. The same goes for if the insured who provided the statement had an honest belief in the truth of the statement’s contents.
Keep in mind that if you are involved in an accident, section 73 of the Insurance (Vehicle) Act Regulations requires the insured to provide prompt written notice of the circumstances of the accident. If you want advice on how to report an accident, contact Filkow Law today.
Clients benefit from Filkow Law’s deep and broad knowledge and expertise of criminal law, driving law and the criminal justice and court system. Filkow Law is known for its skilled advocacy, its highly accessible culture, its signature strategic approach to every case, and the exceptional results achieved.
The lawyers at the firm have excellent reputations with the police, prosecutors and the courts across British Columbia. In addition to their courtroom skills, the lawyers at Filkow Law advocate for and achieve decisive victories away from the public eye, often before the criminal or driving case ever sees a day in court.
Apr 13, 2017
ICBC Coverage: How To Handle An ICBC Breach
The lawyers at Filkow Law have acted for thousands of drivers in British Columbia. We are experienced in drinking and driving, driving while prohibited, hit and runs, and all types of Criminal Code and Motor Vehicle Act cases. Many of our clients are involved in accidents where injuries occur to both parties, and ICBC becomes involved. Besides the consequences of the criminal or driving court matter itself, ICBC is a very big issue. ICBC will say the driver had no insurance because he was drinking and driving, or left the scene, for example. As a result, we have become very experienced and successful in handling insurance (ICBC) breach cases.
If ICBC suspects a breach of your insurance policy at the time of an accident, they will deny your coverage. ICBC can reject coverage for several reasons. For example, for drinking and driving or making a misleading statement to an adjuster. Such leaves you liable for the damage and injuries to both yourself and others due to the accident. A breached ICBC policy is costly, both financially and emotionally. It can put you and your family in an incredibly stressful situation. The burden, however, is on ICBC to prove that you breached your insurance policy. Even if they successfully prove the breach, they still have to collect the settlement from you. You should not accept your breach of ICBC coverage or enter into a payment plan without talking to a lawyer.
ICBC Must Provide Proof
Why is it difficult for ICBC to prove you were in breach of your policy? Take, for example, a situation where you are suspected of drinking and driving and causing an accident. You may be charged criminally at the scene for impaired driving, or you may fail a breathalyzer at the scene and receive an immediate roadside suspension. In either of these scenarios, it is almost certain ICBC will say you are in breach. Even if you successfully fight the charge or dispute the prohibition, ICBC will likely breach you by relying on the officer’s evidence from the scene.
Important Legal Precedent
The burden, however, is on ICBC to prove your breach is higher than a simple suspicion that you were drinking. ICBC must show that more likely than not, you were incapable of properly controlling your vehicle, which caused the accident. The law is well established and goes back to the 1960s, wherein Union Insurance Society of Canton Limited v. Andre Arsenault, 1961 CanLII 83 (SCC), the Supreme Court of Canada stated:
In my view, there is a wide difference between being likely to drive improperly and being incapable of driving properly. Every driver who is under the influence of liquor to the point of being incapable of proper control is certainly impaired, but in my opinion, it does not follow that every impaired driver is necessarily incapable of proper control.
This quote is an important reference in a 1980 case called Kim v. Insurance Corp. of British Columbia (1980), 21 BCLR 18 (SC), which added:
In terms of the clear distinction drawn by those words, it would be necessary for the defendant to prove that the plaintiff’s state went beyond impairment to a point where he was incapable of driving properly. It necessarily follows that the state of incapacity cannot be established by the mere proof that the breathalyzer reading exceeded .08.
A failed breathalyzer test is simply not enough evidence for ICBC to prove that you were incapable of driving when the accident occurred. There must be other evidence of intoxication, such as witnesses at the scene or an expert stating in court that your blood/alcohol level at the time of the accident would have left you incapable.
Contact Filkow Law For Legal Assistance
An ICBC insurance breach is serious. It can leave you owing ICBC hundreds of thousands of dollars and without a license until you pay. Even with an established breach, there are many strategic and effective legal avenues to take advantage of. If ICBC has told you they are considering breaching your policy, you should consult a lawyer immediately to discuss your options.
The lawyers at Filkow Law have decades of experience assisting drivers with criminal charges, roadside prohibitions and the ICBC breaches that can result. For legal assistance, call us today.