If you are injured in a motor vehicle accident in the US and the negligent driver was driving a vehicle with US licence plates, ICBC will not be involved in the tort injury claim even if your automobile insurance was with ICBC.

There is an exception, however, to this general rule. You may pursue an injury claim against ICBC if the negligent driver was driving an ICBC insured vehicle at the time of the collision. This is because the personal injury claim is brought against the negligent driver. If the negligent driver had automobile insurance with ICBC, then the claim can be pursued against ICBC. This is despite the motor vehicle accident occurring outside of British Columbia. A previous blog post discusses this issue.

In Adams v. Rhys-Williams 2020 BCSC 598, the injured claimant was involved in a motor vehicle accident in Washington state. At the time, she was a passenger in a vehicle driven by her husband that was rear-ended by a vehicle driven by the defendant. Although it is not clarified in the judgment, it can be assumed that the defendant driver was driving an ICBC insured vehicle because the claim was defended by ICBC.

At the time of the motor vehicle accident, the female injured claimant was 40 years old. As a result of the collision, she suffered from chronic pain disorder, myofascial pain syndrome and headaches. Her injuries were considered chronic and permanent according to the various medical experts.

The injured claimant sought an award for $120,000 for pain and suffering. ICBC, in response, suggested an award between $40,000 and $85,000 was more appropriate. The Court disagreed with ICBC and awarded a higher amount of compensation than she originally sought in the amount of $125,000. The trial judge considered the impact that the injuries collectively had on the injured claimant and stated:

“She “loved” her job, which she had held for ten years to the date of the accident. Ms. Adams was respected and well-liked by her co-workers and supervisors. Her pain and suffering has affected her marriage and has impaired her ability to care for her young son. She has suffered emotionally from her pain which in turn has led to depression and a realization that she must accept her pain will most likely always be present. She has had to rely on friends and family to be able to maintain an income. She has had to forego any physical activities with her family, travel and struggles to cook and clean her previously immaculate home of which she was most proud. She is generally exhausted towards the end of each day.”

The injured claimant was disabled her from working in her previous job due to her multiple chronic injuries. When the motor vehicle accident occurred, she had been working in a casino for several years. After the collision, she made several attempts to return to work before reaching a point where she could no longer continue. After leaving her position at the casino, she started a cleaning company. As of the date of trial, her earnings from the cleaning company were less than what she would have earned if she had continued working at the casino. Despite ICBC’s arguments to downplay the injured claimant’s disability and lost income, the trial judge determined that the evidence justified a past and future wage loss award. As it relates to the future wage loss award, the trial judge took into consideration the medical evidence which showed that:

  • The plaintiff has been rendered less capable overall from earning income from all types of employment;
  • The plaintiff is less marketable or attractive as an employee to potential employers;
  • The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
  • The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

In awarding the injured claimant a loss of $25,000 per year for a total of $300,000, which was the difference between her earnings at the casino and her cleaning business, the trial judge stated:

“…the court is satisfied that Ms. Adams is no longer competitively employable. She is currently 45 years of age and continues to need to work for financial reasons into the foreseeable future. Based upon Ms. Adams’ evidence of her work history with the casino and her determined attempts to return to her former employment since the accident, she is motivated to work.

Income from Maid to Clean is very uncertain and may well not be available to her as her sisters and family will no doubt need compensation for their efforts, which Ms. Adams will likely not be able to provide. The revenue from her first year of operation is no longer available, and to summarize her evidence, she is struggling to find profitable work in a competitive market where she is relatively unknown.”

If you have been injured in a motor vehicle accident in the US, it is important that you obtain information on your legal rights and where you can pursue a claim. To find out if you are able to pursue a claim against ICBC, contact the lawyers at Holness and Small Law Group who are pleased to offer a free initial consultation.

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