The victim of a drunk driving accident settled with ICBC by way of an all-inclusive payment by ICBC in the amount of $212,000.  The drunk driver responsible admitted the settlement was reasonable but denied being drunk and refused to repay ICBC the settlement amount paid to his victim, as is required in such cases of insurance breach.

The Supreme Court Judge provided an instructive checklist list which can be used by personal injury lawyers when analyzing breach conditions:

[14]         In short:

1.       in order to deny coverage, the insurer must prove breach of the condition;

2.       the onus of proof is on the insurer and the standard of proof is the balance of probabilities;

3.       to substantiate a breach the insurer must prove each of the following

(1)      the insured was driving the vehicle,

(2)      he was under the influence of alcohol or drugs, and

(3)      so much so that he was incapable of properly controlling the vehicle;

4.       evidence of drinking and careless driving may not suffice to discharge the burden of proof;

5.       having an illegal level of alcohol in blood will not necessarily be conclusive;

6.       reliable blood alcohol readings at a level twice the legal limit may permit inferences of incapability sufficient to meet the burden of proof; and

7.       such blood alcohol readings combined with other observed symptoms of intoxication may also suffice to substantiate the breach.(H. v. Insurance Corporation of British Columbia,2017 BCSC 831)

On the evening of the car accident the plaintiff  rear-ended a 2006 a vehicle driven by the injury victim on  Highway 1 near the intersection of 176 Street in Surrey, British Columbia.  The victim was injured in the accident.

At the time the plaintiff was insured by ICBC with third-party liability insurance coverage of $200,000. ICBC  denied coverage  under the policy because the plaintiff was drunk at the time of the accident and that he had accordingly breached the policy condition prohibiting operation of a vehicle while “under the influence of intoxicating liquor or a drug or other intoxicating substance to such an extent that the insured is incapable of proper control of the vehicle”. The plaintiff disputed this claim.

The plaintiff  issued a lawsuit against ICBC alleging that ICBC’s denial of coverage was “wrongful” and that ICBC had breached its contract of insurance.  ICBC filed its Response  alleging the drunk driving breach and seeking reimbursement  for the settlement sums paid on account of the various property damage and personal injury claims arising from the accident.  At trial, ICBC limited its claim to the $212,000 paid in settlement of the victim’s personal injury claim. I think the judge summed up his finding on intoxication very well right here,

[64] I have no hesitation in concluding that [Mr. H] was severely impaired by alcohol at the time of the accident.  His explanation of his activities that day and the amount of alcohol he had consumed is confused and unconvincing.  At the scene of the accident he appeared “out of it”.  He smelled of alcohol and he displayed significant comprehension difficulties.  He failed the roadside alcohol screening test…

[66]  At the police station he was noted to have slurred speech, flushed complexion, and blood-shot eyes.  He was falling asleep both in the police car and eventually at the police station itself.

[67]   And then, of course, there are the blood-alcohol readings obtained through the Data Master breath testing.  Those readings, .17% and .18% reflect substantial intoxication by alcohol.  They also put the lie to Mr. H’s claim that he had only consumed a couple drinks on the evening in question.  That level of intoxication also explains Mr. H’s difficulties with visual perception (depth and distance) and inability to first notice and then react to the otherwise clearly visible vehicles stopped on the highway ahead of him at the construction zone.

[68]         The evidence is overwhelming, and I have no hesitation in finding as a fact, that at the time of the accident Mr. H was driving his vehicle under the influence of alcohol to such an extent that he was incapable of its proper control.  In doing so he breached the terms and conditions of his insurance policies and his liability coverage for the accident was rightly denied by ICBC.

The drunk driver’s lawsuit against ICBC was dismissed.  ICBC’s counterclaim was allowed and damages were awarded to ICBC against the drunk driver in the amount of $212,000 together with interest pursuant to the Court Order Interest Act.

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

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