The Offers of Settlement

ICBC offered to settle this personal injury case for $265,189.30, plus costs one month before trial. The claimant delivered an offer to settle in the amount of $475,000. A jury awarded $105,200. The claimant’s car was rear-ended In this accident and Fault was admitted. Should ICBC be entitled to the costs incurred after their settlement offer?

Court Interpretation of the ICBC Settlement Offer

The award at trial was more than 50% less that the ICBC offer. Ordinarily this would justify a costs award in favour of ICBC.  However, the fact that the Jury award provided a worse outcome for the claimant than the ICBC offer is not determinative in depriving the injury claimant of costs. In this case the jury awarded past wage loss of $45,300, but nothing for future wage loss.  There was no medical evidence that the claimant had fully recovered from her injuries as of the date of trial. The judge was therefore not convinced that the discrepancy between the wage loss awards before and after trial is something which the claimant could have anticipated.  This discrepancy highlights the caution which must be used in placing too much weight on a jury award.

There was no unreasonable conduct on the part of the claimant, and the jury’s award was not an outcome which could have reasonably anticipated. The judge therefore declined to attach much significance to the difference between the jury award and the ICBC settlement offer, even though that difference was substantial.

In awarding the claimant her full costs the judge stated,

[35] I decline to exercise my discretion to vary the ordinary costs order.  I find that the defence [ICBC] offer, at the time it was made, was not an offer which the plaintiff reasonably ought to have accepted.  I also find that the discrepancy between the jury award and the defence [ICBC] offer is not alone sufficient for me to deprive the plaintiff of her costs, for the reasons I have expressed above. (Assadimofrad v. Cowan,2020 BCSC 1276)

Caution when Receiving an ICBC Offer

Despite the success on costs for the claimant, this case is a caution to injury claimants: Sometimes a jury will award less than an ICBC out of court settlement. The law is well settled that the purpose of the offer to settlement Rules are to encourage parties to accept reasonable offers. Parties who make reasonable offers are rewarded with costs, and the party refusing a reasonable offer is penalized.  Skidmore v. Blackmore (1995), 2 B.C.L.R. (3d) 201, Hartshorne v. Hartshorne, 2011 BCCA 29, Walfler v. Trinh, 2014 BCCA 95.

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