In this motorcycle hit and run appeal (Thoreson v. Insurance Corporation of British Columbia,2011 BCCA 130) the claimant was injured in an accident that occurred near Vernon, British Columbia. The claimant was driving a rented Harley Davidson motorcycle and his girlfriend was riding on the back of the motorcycle when he was forced off the road by an unidentified driver. Both the claimant and his girlfriend were injured as a result of this motor vehicle accident and both claimed against the ICBC hit and run fund.
ICBC is only required to pay up to $200,000 for each hit and run incident so the judge pro-rated the total amount between the claimant and his passenger. The injured motorcycle driver appealed the way in which the $200,000 hit and run fund was divided. Keep in mind that additional Underinsured Motorist Protection (UMP) may actually be available beyond the hit and run cap in certain situations which was likely not the case for the claimant.
Shortly before the trial on liability the injured passenger settled her claim with ICBC and the owner of the motorcycle for $935,521.79. The injured motorcycle driver (the”appellant”) settled his claim with ICBC for $125,000. Liability was determined 85% against the hit and run driver and 15% against the appellant. The following is the way the trial judge calculated a pro-rata distribution of the fund:
|Claimant||Settlement or Judgment sum||Proportion||Pro Rata Portion of s. 24 Funds|
The appellant was therefore only entitled to recover $23,573.30 from ICBC. The appellant argued that his girlfriend had a claim for no-fault benefits with ICBC as well as insurance through the third party liability coverage from the owner of the motorcycle and therefore the hit and run fund should have remained untouched. The trial judge rejected the appellant’s policy argument that s. 24 of the Insurance (Vehicle) Act is a “social welfare” provision that should only have come into play after the passenger had exhausted all other avenues of compensation, noting that the section contains no language “to suggest that payment … is secondary or excessive coverage only”. The judge stated:
“… the legislation makes it very clear that ICBC must pay pursuant to s. 24(8). There is no discretion in my view. The only deductions available are for an insured claim, pursuant to s. 106 of the Regulations. This does not include a deduction for payment or amounts that could be recovered from a liable defendant or insurance payable to a liable defendant, due to vicarious liability as indemnity accrues to the tortfeasor not the claimant.”
The Court of Appeal found that the third party liability covereage from the owner of the motorcycle was not a “benefit” to the passenger as the money derives not from her entitlement to compensation, but from ICBC’s obligation to indemnify the owner of the motorcycle. In dismissing the appeal the Court of Appeal concluded:
“ There were three available coverages: no fault benefits; the s. 24 fund; Excellent’s[the owner of the motorcycle]third-party liability coverage. Understandably, the appellant focuses on his situation, but it is mandatory to pay both no-fault benefits and the s. 24 fund. In my view, considering the scheme of the legislation and the plain wording of s. 24, claims that attract the application of that section must be paid, and where there are multiple claims arising out of one accident, must be paid on a pro-rated basis. This is consistent with I.C.B.C. v. Kushneriuk, 2004 BCCA 440 (the usual method of distribution is prorating).”(emphasis added)
Posted by Mr. Renn A. Holness