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ICBC Settlements – Can you reject an offer you accepted from ICBC?

 

If you do not have a lawyer and you are dealing with ICBC on your own, the playing field is extremely uneven in that it heavily favours ICBC.  This is because ICBC adjusters receive extensive on how to handle and settle claims to the benefit of ICBC, not you.  ICBC adjusters have a significant advantage over injured claimants who do not have lawyers because of the amount of knowledge and expertise they have.  Negotiating with ICBC in these circumstances is inherently unfair.

How can an injured claimant without any knowledge or experience in personal injury claims fairly negotiate settlement with a skilled ICBC adjuster?

How would an injured claimant really know if the amount the ICBC adjuster offered to settle the claim is fair?

Can you really trust ICBC given their reputation in dealing with injured claimants and their proven track record of mismanagement?

If you do not have a lawyer and you have accepted a settlement offer made by ICBC, the acceptance of the offer can can be overturned in certain circumstances especially if:

  • ICBC approached you to settle when the true nature, severity and extent of your injuries is unknown when an offer was made and accepted
  • ICBC sent you the release and the settlement funds, but you have not yet signed the release
  • ICBC sent you the release and settlement funds when you did not agree on the final amount
  • ICBC discouraged you to speak to a lawyer such as by telling you that the cost of the lawyer would be high and/or that the lawyer’s services would be ineffective

In Lidder v. Munro et al, 2004 BCSC 857, the injured claimant who did not have a lawyer accepted an offer from ICBC to settle his claim.  The injured claimant had second thoughts based on the very low offer he accepted.  A trial proceeded which considered whether the settlement should be set aside and voided.

Settlement negotiations started a few months after the motor vehicle accident.  The ICBC adjuster tried to discourage him from hiring a lawyer.  Within 6 months of accepting ICBC’s offer and signing the release, his symptoms worsened and eventually his symptoms disabled him from working at his regular job and eventually forcing him to have to change his profession.

A settlement offer that has been accepted is a contract.  Therefore, the trial judge considered the various defences in contract law in order to determine if the signed release and settlement could be overturned:

  • Lack of intention to contract – a settlement (contract) may be set aside if it is shown that each party mistook the other’s intention, so that there was no meeting of the minds in making of the contract
  • Undue influence – a settlement (contract) may be set aside if there was undue influence due to some form of oppression, coercion or abuse of power or authority.
  • Unconscionability – a settlement (contract) may be set aside if the a transaction is unconscionable in that it is so one-sided that it is unfair to one party and unenforceable.  To prove that a transaction is unconscionable, two factors must be present, a weakness in bargaining position on one side and a taking of unfair advantage on the other
  • Misrepresentation – a settlement (contract) may be set aside if it is shown that it was a false representation on a material fact that induced the injured claimant to enter into the contract to his/her disadvantage.

In this case, the trial judge set aside the settlement and invalidated it on the basis of unconscionability and misrepresentation.

As it relates to unconsionability, the trial judge explained:

[56] In this case several facts point to an unequal bargaining position: the language barrier, Mr. Lidder’s lack of sophistication and his self consciousness, the absence of the supporting friend on the occasion of the signing of the release, the fact Ms. Caravetta initiated the meeting and the prior meeting, and the fact that it was convened on short notice.

[58] Ms. Caravetta’s advice to Mr. Lidder about having a lawyer was an important factor. The fact that she would speak so assertively on the point indicates a determination to have control of the discussions, and his acceptance of her advice is evidesnce of his deference to her.

[61] That he offered to accept $7,000 in my opinion was not a strong statement of self assuredness. It was more like last minute haggling. On the larger issues of unresolved injuries and wage loss he gave up.
[62] In my opinion, the parties occupied unequal bargaining positions with ICBC having the advantage.
[63] As to fairness of the bargain…

[65] What ICBC decided not to do was significant: not to order updated medical reports but to rely only on Dr. Randhawa’s CL-19, not to order or to review clinical records, not to check Mr. Lidder’s claims history (he had injuries from 2 prior accidents), not to ask Mr. Lidder about himself either at the August meeting or the previous meeting in June.

[66] The unconsidered medical evidence was in parts vague and indefinite, and the indications of future problems were not advanced as major or alarming possibilities, but overall there were undeniably important signs inconsistent with full recovery…[67] If a reasonable adjuster had learned even some of this he or she would likely have believed that Mr. Lidder’s condition was more serious and would likely have foreseen more of his later problems.

[69] Therefore, I find that on August 6, 1999 ICBC’s information was inadequate because they had not carefully assessed all the information available. They were, therefore, unable to assess proper compensation, and should not have purported to do so. However, they did and consequently their offers were under valued, and the bargain was unfair for Mr. Lidder.
[70] Even if Mr. Lidder could not have gotten more for the unconsidered factors, the fact that ICBC took these shortcuts would satisfy me that the bargain was wanting in terms of fairness to Mr. Lidder and that it worked to his disadvantage. He was led to give up his option of waiting as he had planned to do.

[75] Ms. Caravetta’s advice to Mr. Lidder regarding lawyer’s fees; in the role of a lawyer dealing with ICBC was itself in this case a reason to say that the bargain was unfair. Mr. Lidder said that he planned to go see a lawyer. It was on his mind. He had her card. Especially given his lack of sophistication, a lawyer’s advice could have been useful, and he was likely at a disadvantage without it, but he was induced by Ms. Caravetta’s advice to settle without it.
[76] Access to a lawyer is a basic right. To mislead a person falsely to believe that the cost of a lawyer would be prohibitively high or that the lawyer’s services would be ineffective for the purpose of discouraging the person to see a lawyer, is close to interference with that person’s access to justice. It is something that most members of the public would likely find morally unacceptable and reason enough to call the bargain unfair.
[77] The agreement along with the release should be set aside as unconscionable because for all of the foregoing reasons, the parties were in unequal positions and the bargain was unfair.

As it relates to misrepresentation, the trial judge explained:

[79] Ms. Caravetta’s statements about lawyers were statements of fact and as no doubt she intended. I have already ruled that by those statements she induced Mr. Lidder to forgo seeing a lawyer for advice.

[80] As to the truth or falsity of those statements, neither party brought evidence of lawyer’s fee arrangements. It was not necessary. It is common knowledge within legal circles and probably to nearly all adjusters that lawyers’ fee arrangements vary. A one-third share of money recovered may not be unusual. However, there are many alternatives, including an hour’s advice for a modest charge.

[81] The opportunity to take legal advice was important to Mr. Lidder, and the result of not seeing a lawyer before he signed was to his disadvantage, as has been mentioned.

[82] There is no evidence that ICBC can not be fully restored by repayment of the funds.

[83] Therefore, I find that the plaintiff has met the requirements and is entitled to rescission of the settlement and the release based on innocent misrepresentation.

If you reached a settlement with ICBC on your own without a lawyer and you have second thoughts, it is imperative that you speak to a lawyer immediately and without delay if you wish to dispute the settlement.  Contact one of our experienced personal injury lawyers for a free initial legal consultation to learn more about your legal rights and if you have a claim to overturn the ICBC settlement.

Tags: Car Accident Settlement, ICBC settlement offers, release and waiver, Settlement

"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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