In this ICBC disputed settlement case (Varesi v. Cadelina,2011 BCSC 284), an adjuster from the Insurance Corporation of British Columbia offered the injury claimant $4,216 to settle her car accident claim. He explained the circumstances in his affidavit:
I offered her $4,216.00 in total in exchange for a signed release, which I explained would mean that she is accepting that amount of money to permanently close her claim.
The injury claimant,without a personal injury lawyer on her side, ultimately did not agree to this offer and wrote ICBC stating that $10,000.00 would be acceptable as follows:
“I would like to settle this matter but as I will need to continue with as much massage therapy as finances will allow I feel that my future needs must be taken into account. I have been working at home for Craftworks during this time doing hand and machine sewing and have found that the pain has hindered me from working more at my sewing machine. It has been very difficult having additional pain to deal with and as it has continued for close to 2 years I feel that my original request of $10,000 is still fair. Although my research on the CanLII website leads me to believe I may be entitled to a higher settlement, at this time I am still willing to settle the claim for this amount. I have consulted with a lawyer in regards to filing a writ but again would like to be able to reach a fair conclusion outside of the court system.”
ICBC agreed to pay the injury claimant $10,000.00 but then the claimant had decided to “hold off on settling [her] case right away”. the claimant had received medical advice to the effect that it was uncertain how long it would take for her symptoms to resolve. She then appeared to have hired a lawyer.
The subject matter of this personal injury lawsuit was a car accident between the claimant and a bus which on Terminal Avenue in Vancouver. The claim was for soft tissue injuries. The claimant had a series of discussions with representatives of the Insurance Corporation of British Columbia, attempting to settle on behalf of the defendants. The claimant was also trying to settle a claim against the Insurance Corporation of British Columbia as her insurer for no-fault, or “Part 7” benefits, for certain expenses arising from her accident injuries.
The court refused to decide the matter just based on affidavits as Judge McEwan pointed out at para 27,
“Where an oral contract is asserted and denied the case will generally come down to a contest of credibility. An example in the contest of an automobile insurance claim is Barclay v. Insurance Corp. of British Columbia, 2002 BCPC 15.
This is not a case of duress or unconscionability or undue influence. Depending on the evidence there may be an element of mistake. As the motion for summary judgment has been defended, the issue is whether there was a “meeting of the minds.” The material is not at all decisive on that point, specifically as to the inclusion of the Part 7 benefits in the settlement. Mr. Boswell and the plaintiff differ on what was discussed, and such, if it remains an issue in the action when it is tried will have to be resolved on an assessment of credibility. Such an issue cannot be safely undertaken on the affidavit and documentary material before the court.”
Learn more and read Settling an Injury Claim Under Duress Without a Lawyer.
Posted by Personal Injury Lawyer Mr. Renn A. Holness