This injury claimant made an offer to settle in the amount of $195,000 about 2 weeks before trial and ICBC responded with an unrealistic and meager $70,000 offer. It only took the jury 6 hours to award $294,500 as damages for the injuries she sustained in a motor vehicle accident.
This jury verdict was an incredible 4x more than ICBC offered before trial! Despite this unmitigated win, the judge did not punish ICBC for being unreasonable and actually denied some of the claimant’s costs. No double costs were awarded to this winning claimant, and this is what the judge had to say about it,
[36] I find the[ICBC] did not have sufficient time to consider the plaintiff’s reports and the rebuttal reports [ICBC] had been able to marshal, in order to enable a proper, considered evaluation of the risks of proceeding to trial in the face of the plaintiff’s offers. The offers were delivered too late in the day, were made while the expert evidence was still being disclosed, and were withdrawn after only a short period of time. In the circumstances, I cannot find that the offers ought reasonably to have been accepted.(Anderson v. Pieters, 2017 BCSC 954)
This claimant may succeed on appeal, if pursued, because it appears the court did not consider certain keys factors such as the financial circumstances of the parties and the true modesty of the claimant’s pre-trial offer. Although the judge has discretionary power to award double costs under Rule 9-1(5)(b) of the Supreme Court Civil Rules it must be exercise this power judicially. The Court’s discretion is no doubt broad but not unlimited.
With regard to R. 9-1(6)(b) this claimant succeeded in walloping ICBC, “beating” both ICBC offers of $60,000 and $70,000 handsomely. The jury award exceeded ICBC’s last offer offer by $224,500. ICBC took out the jury notice and even the judge agreed that ICBC should not be able to use its election of trial by jury to shield itself from the cost consequences of such a choice.
Given ICBC’s monopoly on auto insurance and the refusal of ICBC to make a reasonable offer before trial, when reviewing settlement amounts, this costs decision does not appear to withstand the most basic legal analysis and if not appealed should be followed with extreme caution.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.