This case,Moldovan v. ICBC, started as an injury claim for ICBC Part 7 accident benefits(or “no fault benefits”) arising out of a motor vehicle accident which occurred in Coquitlam, British Columbia. I have been a personal injury lawyer in Vancouver representing injury claimants against ICBC since 1995 and can say this case is yet another example of the need to hire a lawyer specializing, through work experience, in personal injury law for your injury claim. Check out my post on how to hire a personal injury lawyer.
The injury claimant was a passenger in a rental motor vehicle owned by U-Haul Co. (Canada) Ltd. (“U-Haul”), which collided with another vehicle. The motor vehicle owned by U-Haul was insured under a contract of insurance entered into in the State of Arizona and issued by Republic Western Insurance Company(“RWIC”), a company incorporated under the law of the State of Arizona. The lawyer for the injury claimant sued ICBC instead of RWIC and the claimant applied to add RWIC to the lawsuit.
RWIC refused to pay the injury claimant any Part 7 accident benefits. RWIC argued that it filed a Power of Attorney and Undertaking (“PAU”) and thereby stepped into the shoes of Insurance Corporation of British Columbia and is therefore entitled to rely on the limitation in s. 103. The claimant did not apply to RWIC for Part 7 accident benefits until after the expiration of the s. 103 limitation period.
RWIC contended that by filing the PAU, RWIC stepped into the shoes of ICBC in terms of its rights and obligations under Part 7 of the Insurance (Vehicle) Regulation, including s. 103.
Note that Part 7 of the Regulation, the ICBC accident benefit package, is a contract to which the ICBC insured claimant is entitled to accident benefits from ICBC and section 103 is a limitation on the right of the ICBC insured to enforce the contractual right to these benefits . Importantly in the courts opinion section 103 must be interpreted in the context of the contractual arrangement, and should not apply to all claims that the insured claimant may have against ICBC as a result of their dealings.
The court summed up RWIC’s argument this way: British Columbia motor vehicle insurance legislation, which imposes on ICBC certain rights and obligations, including those under Part 7, is imposed on an out-of-province or United States insurer by the filing of a PAU.
However to give effect to that argument would give British Columbia legislation an impermissible extraterritorial effect. The PAU is an undertaking and not an agreement to incorporate into RWIC’s insurance policy all those terms that the Insurance (Vehicle) Act and Regulations, including Part 7, of this Province requires a British Columbia or ICBC policy to include.
The injury claimant’s appeal was allowed, the order of Master Keighley was set aside and the following was substituted in its place:
a) Republic Western Insurance Company be added as a defendant;
b) The style of cause be amended accordingly;
c) The plaintiff [injury claimant] has leave to amend the Writ of Summons as set out in schedule “A” to the Notice of Motion dated September 4, 2009; and
d) The plaintiff [injury claimant] is entitled to its costs of this appeal and costs of the application before the Master, in any event of the cause. Posted by Mr. Renn A. Holness
I came across this website, while researching auto insurance requirements for upcoming trip to Canada. So when does BC insurance law apply (or not apply) to US motorists? In the unlikely event of an accident, to what extent are BC personal injury lawyers familiar with cross border insurance issues? In other words, how difficult would it be for injured US motorists to find lawyers in BC? Having read and heard about case of Mary Mulcahy from Wash., I get the impression that it could be difficult for US motorists to find lawyers when BC insurance company says “we are not paying because your insurance should pay” and your insurance refuses to pay what BC insurance company said your insurance company should be paying. Going to Canada should not have to be hazardous to one’s financial health like it was for the Washington State woman.
The BC Law will take care of you when you are here! It is common ground that the test, in part, to be applied in determining whether the B.C. Supreme Court has jurisdiction is whether there is a real and substantial connection between the court and the subject-matter of the litigation. Jurisdiction founded on this basis is referred to as “jurisdiction simpliciter”. If you are injured in BC by a BC vehicle, BC law will apply to your negligence claim against the other driver. There are however many exceptions. If you go back to the USA and lose income in the US, then we can claim US dollars. There are other situations, as in this blog case, where the accident benefits in the USA will cover some for your loss, and in those cases the law in the States would apply.