An offer to settle in any personal injury case should be clear and unambiguous. The claimant and ICBC should use plain language when settling car accident cases. The offer  of settlement should avoid colloquialisms or idioms that are understood by a limited audience.
In today’s case review an ICBC insured sought to deny an injury claimant the costs of trial because of an offer made before trial. ICBC’s offer was greater than the judgment amount by only $639.16, or approximately 0.5%. The ICBC offer of settlement was $175,000 and the court awarded $174,360.  (Goguen v. Maddalena, 2018 BCSC 696)
In  Saopaseuth v. Phavongkham, 2015 BCSC 45  an award 2% greater than an offer to settle “suggests that little weight should be given to this factor”. Furthermore, in Zhao v. Yu, 2015 BCSC 2342 at para. 11, Baker J. held that an offer that exceeded an award by $1,800 was “of little significance in arriving at a decision about costs”.

With respect to ICBC Part 7 benefits, the first page of the Defendant’s Offer stated in part:

The Settlement Payment:

(a)     is offered after taking into account Part 7 benefits paid or payable, pursuant to section 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force before June 1, 2007) and/or pursuant to section 83 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231 (in respect of policies in force on or after June 1, 2007);

The judge was not prepared to consider these words despite this settlement term being referred to or interpreted in at least 7 previous Supreme Court of BC cases. Offers to settle by the insurance company in ICBC injury claims need to clearly address accident benefits paid in the past or to be paid in the future.

For ICBC to make an offer when benefits have been paid can be done in one of two ways. It can either be done, as was the case in Anderson v. Routbard, 2007 BCCA 193, by providing an offer that tells a claimant exactly what net amount he or she will receive apart from Part 7 benefits or other advances. Alternatively it can be done, as was the case in Kerpan v. Insurance Corporation of British Columbia and Henry’s Autobody Inc. et al. and Lambert et al., 2007 BCSC 203, by identifying what precise amounts have been paid. Thus, the offer in Kerpan stated:

[10]   ICBC’s offer purports to be under Rule 37A of the Rules of Court.  The offer, made by ICBC’s counsel, reads as follows:

Your client has already been advanced $28,500.00.  ICBC is prepared to pay your client $171,500.00 new money ($200,000.00 old money), inclusive of costs and disbursements in return for a complete settlement and full release of all claims by Ms. Kerpan with respect to the accidents dated March 22, 2000, December 2, 2002, April 22, 2003, and September 25, 2005.

We reserve the right to bring this offer of settlement to the attention of the Court for the [sic] consideration in relation to costs after the Court has rendered Judgment on all other issues in the proceeding.

Some Part 7 benefits are “payable” even after an action is settled. In such cases the form of offer used in Anderson will be more useful: see Anderson at para. 26.

The defendant was ordered to pay the claimant’s full costs despite any offers made.

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

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