If the Insurance Corporation of British Columbia, ICBC, lawyer gives an injury claimant an offer to settle their injury case, ICBC is usually entitled to their legal and out of pocket expenses after the date of the offer, if the injury claimant refuses the offer and gets less at trial. Personal injury lawyers hired to help settle an ICBC case will serve you best by presenting you with all the reasonable options, including going straight to trial if the case calls for it.
The Court of Appeal for British Columbia, in the case of Neufeld v. Foster, ICBCet al, held that past as well as future ICBC benefits effectively prevented ICBC from getting their costs even though ICBC had offered $ 260,000 and the injury claimant only received $238,299 at trial. The Court of Appeal found that after future benefits were deducted from ICBC’s offer the amount offered actually amounted to $213,525, which was less than what the claimant received at the trial as Judgment was entered for $238,299.
The Court of Appeal in Neufeld applied Schmitt v. Thomson (1996), 18 B.C.L.R. (3d) 153 (C.A.) which held that the trial judge must estimate and take into account future ICBC no fault benefits before judgment is entered.
The Court of Appeal also stated that there may be no deduction from the trial award for ICBC benefits where ICBC has not committed itself before trial to paying benefits, or has decided to cease payments of such benefits, (see Bettamin v. Kasunich, February 11, 1999, New Westminster Registry No. S036493 (S.C.). This proposition was confirmed in Paquette v. Ouellette, (1992) 21 B.C.A.C. 201 (B.C.C.A.) which reads as follows:
… the corporation, having declined to pay these expenses… cannot resile from that position and having lost that issue in the tort action then turn around and take the position that they are paid as Part 7 payments. To put it another way, in my opinion, in view of the position taken by the corporation and what transpired in the tort action I think the corporation is estopped from asserting its rights under s. 24 of the Insurance (Motor Vehicle) Act.
Also, in cases where there is uncertainty as to entitlement to payment of future benefits only a nominal estimate may result, which could lead to little or no deduction from the trial award. The Neufeld case warns that past and future ICBC benefits may affect the allocation of costs and should be considered when assessing the impact of an offer to settle received from ICBC. Posted by Mr. Renn A. Holness