If the Insurance Corporation of British Columbia , ICBC,  gives an injury claimant  an  offer to settle their injury case, ICBC  may seek 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.
 However the Court of Appeal for British Columbia, in the case of Neufeld v. Foster, ICBC et 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 Plaintiff 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 Plaintiff 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.

Posted bt Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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