The evidence of an Insurance Corporation of British Columbia, ICBC, adjuster in this car accident personal injury case was rejected by the Supreme Court after she suggested the claimant had concocted her complaints of hand pain and associated numbness.(Kovac v. Moscone,2014 BCSC 259). The accident occurred when the claimant was stopped at a red light at Production Way in Burnaby and was struck from behind by the defendant’s vehicle. The claimants body was thrown forward then backward, resulting in her head hitting the headrest.
In this personal injury case the defendant, ICBC insured, suggested that he was entitled to costs of the proceeding on the basis that ICBC was substantially successful in the proceeding. He relied upon R.14-1(9) of the Supreme Court Civil Rules in support of that proposition.
The injury claimant was given a final offer of about $55,000 by ICBC to settle her personal injury claim which was rejected. After a 21 trial the claimant beat the offer and was awarded $75,000. Despite beating the ICBC offer the lawyers for ICBC still argued that the claimant should have accepted the offer and not gone to court. The Judge rejected this argument outright stating, “… she achieved a substantial award of damages in the proceeding in excess of that which she could have settled the claim for…I reject the defendant’s[ICBC] alternative argument that I ought to consider the defendant’s offer to settle for an amount some $20,000 to $25,000 below that which was ultimately awarded.” Also, ICBC contributed to the lengthy trial by persisting with the theory of concoction at trial when it was wholly without merit.
Astonishingly, the same ICBC adjuster that suggested the claimant had concocted her injury complaints had met with the claimant and her husband inviting them to discuss settlement of her claim, before the claimant hired a personal injury lawyer. the ICBC adjuster even had medical records available prior to her meeting with the claimant clearly indicating that the complaints of hand numbness had been made to the family doctor well in advance of her meeting with the adjuster. Watch my short video on why a claimant should not sign an authorization to release medical file to ICBC, which appears to have been done in this case.
The limitation period for the commencement of an action was but two months away and no personal injury claim had been filed with the court. A cheque had previously been issued by ICBC to the claimant and sent to her along with a release of further claims, inviting settlement of her injury claim. The claimant neither signed the release nor cashed the cheque. According to the ICBC adjuster she was advised to bring the cheque to the meeting along with any receipts for special damages in anticipation of resolving the claim at the scheduled meeting. That was not to be.
On the issue of costs the claimant was awarded her costs but limited to 11 days of trial because the trial could have been reduced to approximately 11 days absent the claims for losses flowing from a workplace accident. In my view, despite this reduction in costs this case is still a clear win for the claimant and a loss for ICBC. This case is also is an example of how far injury claimants sometimes need to go with ICBC to achieve the best result in a personal injury case.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
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