|Beware of Insurer!|
Many clients are unaware that ICBC’s role actually changes if you have a potential legal claim against them. Up until that point, ICBC is your insurer, and they have the duties of an insurer. However, once you start to pursue a legal claim against ICBC, they are, in effect, the opposing party and are allowed to “play hardball”, at least to a limited extent.
An illustration of this comes from a recent case, Morris v. Doe, 2011 BCSC 253, additional reasons at 2011 BCSC 1053. Mrs. Morris was injured by a hit and run driver, and so she filed an ICBC report and a police report. At this point, she thought that she had done everything required. However, as noted in an earlier post, s. 24 of the Insurance (Vehicle) Act imposes additional duties on the plaintiff when advancing a hit and run claim. Mrs. Morris did not seek legal advice and assumed that ICBC would tell her if there were any further steps required.
After trial, Justice Ker found that Mrs. Morris had failed to take all reasonable steps to identify the driver of the hit and run vehicle. Furthermore, the judge found that there was no duty on ICBC to advise Mrs. Morris that she had to investigate further:
the failure of ICBC adjusters to advise the plaintiff that other steps to try and ascertain the identity of the driver should be undertaken does not relieve a plaintiff of the obligation to take all reasonable steps to ascertain the unknown driver’s identity
To make matters worse, after the case was dismissed, ICBC sought to have Mrs. Morris pay the costs of the litigation. While the judge was sympathetic to the plaintiff, Justice Ker had no choice but to award costs to ICBC:
 … ICBC has no obligation to advise a plaintiff of the nature of the steps they need to take in order to satisfy the court they have taken all necessary and reasonable steps to ascertain the identity of the offending unidentified driver.
 I do not understand the jurisprudence or the governing statutory provisions to place any sort of positive obligation on ICBC through its employees to either advise a plaintiff of the steps they must take to ascertain an unknown driver’s identity or of the need to obtain independent legal advice on this provision.
 I cannot accede to counsel’s suggestion that ICBC or an insurer has a positive obligation to advise an insured of the need to obtain legal advice. To do so would fundamentally change the nature of the contractual relationship between the insurer and insured and place the insurer in a position of quasi-authority requiring it to provide an element of legal advice, something adjusters and claims managers may not be well suited to do and may create a host of unanticipated and unforeseen consequences.
 I must say again that, in this case, I have a great deal of sympathy for the unsuccessful plaintiff, particularly in light of ICBC’s failure to set her straight at the outset when it was apparent she did not understand the process.
(written by Troy McLelan)
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