ICBC injury claimants need to be aware that accepting an offer to settle is a binding agreement and further requests to ICBC to make their “best offer” will be futile. In today’s case study the court was asked by ICBC to declare that the personal injury lawsuit was settled for $20,000 plus court costs, for which the court agreed.
After accepting ICBC’s offer of $20,000 plus costs the claimant’s lawyer wrote to ICBC enclosing the plaintiff’s bill of costs, and inviting ICBC to make their best settlement offer. The ICBC lawyer however had already stated that there was nothing unclear about our formal offer which has already been accepted. It was issued under the then-Rule 37 in the standard form used by ICBC. This exact language had been repeatedly upheld in case law. This is why ICBC adopted it as the corporation’s standard form.
Judge Pearlman made clear that where an offer to settle has been accepted and the parties have made a binding agreement regarding costs, the rules of court do not confer a discretion on the court to set aside that agreement (Nazmdeh v. Ursel, 2010 BCSC 136 at para 99)
ICBC does not breach a settlement agreement when they decline to pay out the damages portion of the settlement before costs are assessed. In Nazmdeh the claimant’s personal injury lawyer contended that the defendants breached the settlement agreement by failing or refusing to have costs determined and assessed within a reasonable time from acceptance of the offer to settle. However the court disagreed at paragraph 101 stating,
“… an unfortunate dynamic developed between counsel for the parties, for which both sides bear some responsibility. That dynamic was fuelled by mutual allegations of misconduct in the litigation by the parties or their counsel, which protracted the resolution of costs. In the result, the time devoted by both parties to the conduct of this litigation after acceptance of the defendants’ offer to settle was disproportionate to the amount of the damages settlement. It is unnecessary to make findings of fact respecting any of the unresolved allegations of contempt or other misconduct, and I decline to do so. For present purposes, it is sufficient to say that the plaintiff has not established on a balance of probabilities that the defendants failed or refused to proceed with the determination of costs, or engaged in any conduct constituting a repudiation of the settlement agreement.”
The court found that the claimant and ICBC had made a binding agreement for the settlement of the lawsuit, and that ICBC was entitled to the declaration that the action was settled, except for the assessment of costs of the action by the Registrar.
The terms of settlement were that the defendants pay to the claimant the sum of $20,000; the defendants pay costs to the claimant to the date of settlement; and the claimant plaintiff pay costs to the defendants/ ICBC from the acceptance forward. Unfortunately for this claimant the amount of costs incurred by ICBC after the acceptance of the offer likely exceeded the settlement amount. Even the best personal injury lawyer could not convince the court to change this binding settlement agreement.
To summarize, the parties made a binding agreement on costs by which they agreed that the claimant was entitled to her costs and disbursements to the date of acceptance of the ICBC offer, and the defendants/ICBC were entitled to their costs and disbursements from the date of acceptance to the date of settlement of costs.
Posted by Personal Injury Lawyer in Vancouver Mr. Renn A. Holness, B.A. LL.B