Incorrect principal operator & denial of insurance

[LongHaul]

My5cents wrote:

In these two examples neither would breach coverage. As long as the driver didn't owe money for tickets or to ICBC (something that would prevent him from renewing his license) ICBC would give the driver 10 days to renew the license and he would be fully covered for the loss.

Not being in possession of a license would have no effect on a claim, as long as the driver was licensed.

Don't forget, the case of the courts ruling that ICBC must cover the loss for the company, doesn't mean that all is forgiven. ICBC will go after the driver for everything they pay out. Might be like trying to get blood out of a stone, but they will go after him.

Interesting points. Didn't know one had a 10 day grace period from the licence expiry date to renew and still be covered in the case of an accident. The case the judge quoted as a precedent about an expired licence missed by the owner's check of the driver's licence leading to ICBC denying insurance must have been past the 10 days or there were other reasons the licence couldn't be renewed. Was trying to find out exactly what the situation was but this case wasn't put into the judgement data base.

In the situation of a driver who is an employee of a company it would then seem ICBC has the option of “cherry picking”. ICBC could look at the company and the driver and decide to go after the one with the most claimable assets.

Have heard some transport companies to protect themselves against getting wiped out in the event ICBC denies coverage on a major claim have been incorporating in such a way to show minimum assets. One method mentioned is making every commercial vehicle a separate company. If my memory is correct that is the way the owner whose van was involved in a crash while transporting farm workers in the lower mainland was setup. Every van was a separate numbered company.

Lending out a vehicle has potential ramifications to the owner in the event of an accident. Suspect many people are not aware of this. Even if there isn't any denial of insurance issues and all the policies work the result can still be butt ugly for the owner who lent out the vehicle. Assuming the following article published by the CBC a couple of years ago is correct it outlines what can come back to the owner. Have condensed the article.

The link to the complete article is at
http://www.cbc.ca/news/canada/british-columbia/story/2011/06/27/bc-icbcclaim.html

CBC Article

A young B.C. driver is facing steep insurance penalties from the provincially owned insurance corporation for an accident he had nothing to do with.

The vehicle owner works in a restaurant in Victoria. In March, he loaned his 1996 pickup truck — the first vehicle he's owned — to his boss, who then caused an accident. The vehicle was written off by ICBC.

Both the owner and the borrower have vehicle insurance with ICBC. The borrower said he asked ICBC to apply the claim to his policy, so the owner won't face higher premiums and a black mark on his driving record, but ICBC refused.

The owner said, because he is a new driver, his penalties for an accident are worse than they would be for the borrower.
They said ICBC told them the $7,000 accident claim must be applied to the owner's policy because ICBC registers accident claims against the vehicle, not the driver, in every case, with no exceptions.

The ICBC spokesperson confirmed all accident claims apply to vehicles, not drivers. He said ICBC set it up that way in its pricing model, which was approved by the regulator.
"We are governed by the British Columbia Utilities Commission. We have a pricing model that is set with them. To change our pricing model with BCUC takes years and years of work,".

The owner's lawyer said, in his opinion, ICBC's policy appears to contravene the Insurance (Vehicle) Act of B.C.
"[It says] if a person is at fault, ICBC can increase their premiums. That clearly was not the case here," .

His reading of the law is that premium increases should apply to the driver or the owner, whoever is at fault.
The relevant section (35) reads, "The corporation may establish discounts from premiums and establish additional premiums to be paid by owners or drivers based on any one or more of the following; (a) the accident record of the owner or driver; (b) the degree of fault of the owner or driver in respect of an accident."

"This owner has no accident record. So, I think the proper interpretation of that section is that he does not have an accident record, therefore there is no basis to increase his premium,".

He said his Victoria firm would consider taking ICBC to court to challenge its policy if enough affected customers came forward.
"There might even be a class action here for the hundreds — or perhaps thousands — of people who have been penalized this way,".
The ICBC spokesperson said the lawyer may technically be right, but he insisted the pricing policy also must be adhered to.

[my5cents]

Interesting points. Didn't know one had a 10 day grace period from the licence expiry date to renew and still be covered in the case of an accident.

I think you have 10 days from when ICBC asks you to renew it. ie, it takes 3 days for you to get an appointment, or you call ICBC after you get back in town. They would check your license on their computer and see that it's expired. They would also check and see that you didn't have any reason (a debt) that you wouldn't be able to renew, and they would give you 10 days from then. It's not conditional on you having the accident within 10 days of forgetting to renew. Your license could be expired by months, just as long as there is no reason you couldn't for that time.

That doesn't mean you wouldn't get a ticket if you were stopped by the police.

In the situation of a driver who is an employee of a company it would then seem ICBC has the option of “cherry picking”. ICBC could look at the company and the driver and decide to go after the one with the most claimable assets.

They would go after them both at the same time

Have heard some transport companies to protect themselves against getting wiped out in the event ICBC denies coverage on a major claim have been incorporating in such a way to show minimum assets. One method mentioned is making every commercial vehicle a separate company. If my memory is correct that is the way the owner whose van was involved in a crash while transporting farm workers in the lower mainland was setup. Every van was a separate numbered company.

You make it sound like every other loss is denied by ICBC. To deny coverage ICBC has to have a reason.

I've heard the opposite is the case. ICBC gives very good rates to fleets and lots of trucks are insured under "Fleet Plan", with ICBC.

As for the van that killed all the farm workers, I don't know what happened. The driver was driving with the wrong class of license, I think. Not sure if they breached her on that or not ?

Lending out a vehicle has potential ramifications to the owner in the event of an accident. Suspect many people are not aware of this. Even if there isn't any denial of insurance issues and all the policies work the result can still be butt ugly for the owner who lent out the vehicle. Assuming the following article published by the CBC a couple of years ago is correct it outlines what can come back to the owner. Have condensed the article.

CBC Article

A young B.C. driver is facing steep insurance penalties from the provincially owned insurance corporation for an accident he had nothing to do with.

The vehicle owner works in a restaurant in Victoria. In March, he loaned his 1996 pickup truck — the first vehicle he's owned — to his boss, who then caused an accident. The vehicle was written off by ICBC.

Both the owner and the borrower have vehicle insurance with ICBC. The borrower said he asked ICBC to apply the claim to his policy, so the owner won't face higher premiums and a black mark on his driving record, but ICBC refused.

So, I'm visiting you and I accidentally set your house on fire. You think I should be able to use the fire insurance from my house to cover your burned house ?

The owner said, because he is a new driver, his penalties for an accident are worse than they would be for the borrower.
They said ICBC told them the $7,000 accident claim must be applied to the owner's policy because ICBC registers accident claims against the vehicle, not the driver, in every case, with no exceptions.

So you have a $50,000.00 new truck and I borrow it and smash it up. You think my collision coverage for my $3000 K car should cover your $50 G truck ? .... and my own damage insurance policy that costs me a minimal amount should go up by 10% (a guess) instead of your rather high rate on a $50 G truck going up 10% ????? How would that work ?

The ICBC spokesperson confirmed all accident claims apply to vehicles, not drivers. He said ICBC set it up that way in its pricing model, which was approved by the regulator.
"We are governed by the British Columbia Utilities Commission. We have a pricing model that is set with them. To change our pricing model with BCUC takes years and years of work,".

The owner's lawyer said, in his opinion, ICBC's policy appears to contravene the Insurance (Vehicle) Act of B.C.
"[It says] if a person is at fault, ICBC can increase their premiums. That clearly was not the case here," .

Opinions are like belly buttons, everyone has one.

His reading of the law is that premium increases should apply to the driver or the owner, whoever is at fault.
The relevant section (35) reads, "The corporation may establish discounts from premiums and establish additional premiums to be paid by owners or drivers based on any one or more of the following; (a) the accident record of the owner or driver; (b) the degree of fault of the owner or driver in respect of an accident."

"This owner has no accident record. So, I think the proper interpretation of that section is that he does not have an accident record, therefore there is no basis to increase his premium,".

But the section says “OWNER or driver”, in other words he is the owner of a vehicle that does have an accident record, thus the increase.
... and so, I loan my car to my brother in law from Alberta and he totals it, we just call that the cost of doing business ? No increase in my cost of insurance ??

He said his Victoria firm would consider taking ICBC to court to challenge its policy if enough affected customers came forward.

... can we say,,, "fishing for business" ?

"There might even be a class action here for the hundreds — or perhaps thousands — of people who have been penalized this way,".
The ICBC spokesperson said the lawyer may technically be right, but he insisted the pricing policy also must be adhered to.

I realize this is a CBC piece and these are not your comments, you are just included what the article said.

[LongHaul]

My5cents wrote:

“But the section says “OWNER or driver”, in other words he is the owner of a vehicle that does have an accident record, thus the increase.”

I interpreted this section as the Insurance Vehicle Act gave ICBC the option of charging either the owner or driver with an increase in premiums. If this interpretation is correct then why is the owner's vehicle insurance always charged? Explanation-The ICBC spokesman said “ICBC registers accident claims against the vehicle, not the driver, in every case, with no exceptions”. The spokesman then explained why this is with these statements:
“ICBC set it up that way in its pricing model, which was approved by the regulator.
We are governed by the British Columbia Utilities Commission. We have a pricing model that is set with them. To change our pricing model with BCUC takes years and years of work.”

Is the spokesman implying when the pricing model was set up by the bureaucrats they ignored statements or parts of statements in the Insurance Vehicle Act that would conflict with the model they were ordered to set up?
My impression is they must have wanted a model that was pure Vehicle Based Insurance. Leaving in the phrase from the Insurance Vehicle Act that allowed the option of increasing the premiums of the driver would not fit this model and would muddy the water.
However are they allowed to omit from the pricing model items that are in the Insurance Vehicle Act? Don't know. In court would the Insurance Vehicle Act trump what is in the pricing model? Don't know. If a class action lawsuit was started as the lawyer suggested wouldn't want to see it succeed. Costs to settle this suit would just be passed onto us, the tax payers.

My5cent wrote:
... and so, I loan my car to my brother in law from Alberta and he totals it, we just call that the cost of doing business ? No increase in my cost of insurance ??

My knowledge on how the mechanics of insurance works is very limited. Off the top on my head assuming the brother in law has insurance with a private company in Alberta and he is at fault would have thought the process would be:

ICBC pays you the value they determine for your totalled car.
ICBC then goes after the insurance company your brother in law is insured with in Alberta to recover their costs.
The Alberta insurance company pays ICBC.
ICBC charges your vehicle insurance with the accident and possibly increases your premium.

This could end up a win, win result for ICBC. They get paid back for the accident costs and they may be able to increase your insurance premium.

It's surprising how many people get it wrong when asked about whose policy will be charged if they lend their car to a friend who then has an accident with their car. A common answer is the borrower's ICBC insurance policy would look after everything and be charged with the accident. Wrong!
As a site defining Vehicle Based Insurance suggested visualize it as when one lends out their vehicle they are also lending the borrower their insurance for that vehicle.

Taking this a step further lets assume the borrower while driving the owner's vehicle is in an at fault accident and has done something that causes ICBC to deny insurance coverage. Could be failing a breath analyzer at the accident scene, dangerous driving, whatever that triggers a denial of insurance. There are injuries that are expected to result in very large claims. As the vehicle owner has in effect lent out his insurance coverage that goes with the vehicle it would seem the owner's insurance would now be breached and the owner would be on the hook to pay ICBC for the costs of the accident??? Am not completely sure but this would seem to be the result of a denial of insurance with vehicle based insurance....

There must be advantages to having Vehicle Based Insurance as it seems quite common. One that comes to mind is insurance that matches to the cost of the vehicle they own. Owners of low cost vehicles should pay less than ones with higher cost vehicles. However my impression is in it's current form it can also lead to what appears to be unfair results when charges for an accident are allocated. If the example above is correct in worst case the owner who lent out his vehicle could end up facing bankruptcy for something the borrower did while driving the owner's vehicle.

Anyway we have vehicle based insurance in BC and one should be well aware of the risk being taken on if they agree to lend out their vehicle.

In May, 2012 ICBC announced they were looking into changing to determining premiums based on the Driver's record rather than the number of claims against a vehicle. A paragraph from the article describing why this is being considered follows.

“As part of the engagement process, ICBC will consult with customers and stakeholders on various options that move towards a pricing system that focuses more on the driver and their driving record, rather than the current vehicle-based rating system which focuses on the claims history of the vehicle.”
“During the consultation and engagement process, ICBC will inform customers and stakeholders about changes under consideration and seek feedback on options for a fairer, more driver-based system.  ICBC will highlight various risk factors that could be used to determine each customer’s basic insurance premium including driving experience and at-fault crashes.”

Link to the article is at
http://www.citopbroker.com/news/icbc-may-change-to-driver-based-rating-scheme-3635

The article didn't say if there would be any changes to how at fault charges are now allocated under a scheme where it's driver's record that determines the premium.

[my5cents]

Lengthy post, Longhawl. Bear with me, I'm using an iPad, in an airport.

It's a bit confusing when you talk of the Motor Vehicle Act. The legislation governing. ICBC, is the Insurance Vehicle Act.

I agree a lot of people don't know what happens to their insurance If their car has a claim. Also certain circumstances, such as hitting a rock slide on the highway. Hitting and damaging ones tire or vehicle as a result of driving over debris left on the road after an accident. Having an accident on a highway that has extreme icing conditions. Unless the rocks are moving or came down the second you hit them, and the same for the debris, you are at fault. Likewise for poor conditions, with the very odd exception.

There are two parts to insurance, liability and own damage. You basically pay a certain amount for each based on your experience and use of the vehicle. On top of that you pay according to the amount of coverage, the deductible and the value of your vehicle. For you to say that one person's own damage coverage should cover another's, doesn't take into account the possible difference in value of 2 vehicles.

As for the Ins Veh Act, ICBC has full input into what it says.

[LongHaul]

My5cents wrote:

“Lengthy post, Longhaul. Bear with me, I'm using an iPad, in an airport.

It's a bit confusing when you talk of the Motor Vehicle Act. The legislation governing. ICBC, is the Insurance Vehicle Act.”

Whoops, you are right, my mind locked in on the wrong name, where it says Motor Vehicle Act it should have said Insurance Vehicle Act. Thanks!

Ended up in “hurry up and wait” mode today which provided some time to get on the key board and ramble on. Result was a post longer than planned.

“I agree a lot of people don't know what happens to their insurance If their car has a claim. Also certain circumstances, such as hitting a rock slide on the highway. Hitting and damaging ones tire or vehicle as a result of driving over debris left on the road after an accident. Having an accident on a highway that has extreme icing conditions. Unless the rocks are moving or came down the second you hit them, and the same for the debris, you are at fault. Likewise for poor conditions, with the very odd exception.”

In my opinion a course should be added to the High School Curriculum that runs through High School educating students in the basics of the various types of insurance, loans, mortgages, buying a car, etc.
The object would be to have the student come out of high school better prepared to deal with what will be encountered in real life. Otherwise one is like a lamb among wolves until enough of this missing knowledge is obtained on the fly and sometimes with costly avoidable mistakes. Anyway am getting off topic...

Hadn't heard that if rocks or debris were still moving when hit one wouldn't then be at fault. Good information. Saw a case a while back where it was being contested if the driver was at fault due to a hazard on the highway causing his accident. Not sure how it turned out. Have to see if can find it again.

“For you to say that one person's own damage coverage should cover another's, doesn't take into account the possible difference in value of 2 vehicles.”

Recognize that is a problem if insurance is driver based rather than vehicle based.
If a driver wreaks a borrowed car that is more expensive than the one normally driven that is a problem for the insurance company. If it's the opposite and the driver borrows and wreaks a car that is basically a beater worth much less than the car normally driven then this should be a plus to the insurance company. Guess their models would have to crunch statistics allowing for the above situations. It may be it would lead to slightly higher overall rates for everyone? Perhaps the insurance company could also adjust the driver's premium upwards to reflect the difference in premiums for the more expensive car wreaked? Just thoughts off the top, insurance companies must have ways of accommodating this problem.

[my5cents]

It was the Insurance Motor Vehicle Act and Regs, then the Insurance Vehicle Act and Regs. It is confusing.

I think if they ever go to a driver based insurance, there will still be two parts. One for liability and one for the vehicle.

There still is provisions for a drivers certificate, which I think they could use to insure drivers.

You lend your vehicle and it's in a liable accident the own damage portion will also go up. Any way you cut it, it will be a bit of a mess, IMO.

I'd like to, in the least, see some way where an owner of multiple vehicles gets a discount.

[LongHaul]

Believe this is the case I mentioned that involved a road hazard. It could be useful to one who has an vehicle accident through no fault of their own due to a foreign object or substance on the road.
I.E. A no one was at fault accident. Will summarize it as best I can.

This case is being used to support a more recent case involving a road hazard.

Depending on the circumstances even though the road hazard was the cause of the accident the assignment of fault could still be to the registered vehicle owner.

In this case the root cause of the accident appeared to be oil residue from an earlier oil spill. A vehicle upon encountering the oil residue during a rain did a 360 and slid across the centre line striking another vehicle. The insurance policy for the vehicle which did the 360 was assigned 100% of the fault by ICBC. With the assignment of fault against the owner's insurance he lost his safe discount and his premium went up.

The owner took ICBC to court with the position ICBC's liability assessment was incorrect and he is entitled to a refund of the money paid to ICBC for the Crash Responsibility Charge and the Premium Increase.

A summary of the case, hopefully with correct interpretations of the legal phrasing follows:

The ICBC (Defendant) defence was:

- The driver (Claimant) must have been driving too fast for the road conditions. Therefore he was 100% liable.
- There wasn't any credible evidence of oil on the road, only an inference by the claimant there must have been something on the road to cause the spin.
- Even if the claimant is found not at fault this is irrelevant as he cannot show 75% of the payment is recoverable from another person. ICBC pointed to policy terms in Part 3 of Regulations and Section 11.

The Court's Analysis and Decision was:

- The judge concluded the driver was not driving too fast for the road conditions that driver was aware of. The driver had gone through speed radar without incident. When ICBC was asked what would have been considered a safe speed they could not provide an answer.
- There had been an oil spill the previous day some distance away which had been swept up and sanded. It was possible the slippery spot could have come from that oil spill.
- The judge's analysis for ICBC (Defendant) stating even if the driver was not at fault it was irrelevant follows:

“With regards the Defendant's contention that it makes no difference if I find that the Claimant was not at fault, the Claimant cannot succeed unless he can show that 75% of the payment is recoverable from another person. In this regard, I wish to refer to the evidence of the Defendant's Adjuster. When asked what negligence percentage he placed on the Claimant, his answer was 100% and when asked what did the Claimant do to cause the accident, his response was that that decision was irrelevant because no one else was involved or caused the accident. When asked what did the Claimant do that was negligent, his answer was that he concluded that the speed was too fast for the road conditions and that he felt that the Claimant should have been driving at a slower rate of speed. He could not however say what speed he would have considered reasonable. He went on further to state that it is the Defendant's policy that when it is nobody else's fault, the driver causing the accident is considered 100% at fault. He then stated that if he is not at fault his premiums would not go up. When asked if it follows that if no one else is at fault the other party is 100% liable, his answer was that the Insurance Corporation of British Columbia has a discretion.”

“I find these responses by the Defendant's Adjuster curious indeed. They suggest to me that a driver can be penalized for an accident where there has been neither fault nor negligence at the discretion of the Insurance Corporation of British Columbia, and contrary to long established principle of our Courts that there must be fault or negligence before a penalty can be imposed on an alleged wrong doer. It strikes me that the Defendant did not arrive at a decision to penalize the Claimant as a result of any proper investigation of the Claimant's role in the accident, but sought on the grounds of some wrongly conceived policy to find the Claimant at fault for an accident because there was an accident and there was no one else at fault.”

“It strikes me that it is not even necessary for me to examine the implications of Section 11 of Part 3 of the Regulations, when it seems that it was the Defendant which improperly exercised a "discretion" to assess 100% fault on the Claimant and then argue that consequently he falls under Section 11 and is bound by what the Defendant contends is the intent of that Section. I find that not even Part 3 Section 11 can be deemed to eliminates the requirement of a proper finding of fault or negligence before either a "discretion" could be exercised or the Claimant placed under the provisions of Section 11.”

The Court's Decision:

“As I stated above I find that the accident did not occur as a result of any fault or negligence on the part of the Claimant and that he is entitled to a refund of the Crash Responsibility Charge imposed upon him and a refund of any increased premium and/or charge assessed as a result of what I consider to be an improper and baseless finding of fault by the Defendant.”

The link to this case is:

http://canlii.ca/en/bc/bcpc/doc/2003/2003bcpc151/2003bcpc151.html

A more recent case involves a Mini Cooper being damaged when it hit a pot hole in San Diego. ICBC covered the claim but failed to recover damages from the City of San Diego. As a result fault was then assigned to the vehicle owner's policy resulting in a loss of the Safe Driving Discount.

The case described above was listed as a supporting case by the Claimant.

ICBC's initial defence in this case was applying to have the case dismissed with the argument the Court does not have jurisdiction to hear the claimant's case. If I understand this correctly I think the ICBC argument was the court could not overturn the intent of how fault or negligence is to be assigned as per Section 11 Part 3 of the Regulations. The judge disagreed stating ICBC has a discretion when to apply the definition in this section and ruled the case can proceed. The judge also noted the question of jurisdiction hadn't been raised or the verdict appealed for the supporting case. Wasn't able to find if this case had been heard yet. It may have been settled out of court?

The link to this case is:

http://canlii.ca/en/bc/bcpc/doc/2011/2011bcpc427/2011bcpc427.html

Recall ICBC was suing the company maintaining the portion of the Coquihalla Highway with large potholes that caused damage to a number of vehicles and resulted in insurance claims this winter. Am wondering if the lawsuit fails will these vehicle owners then find their policies are charged with fault?
If this happens depending on the circumstances the above case may be a support case if one wants to dispute the charge assignment. Assuming the vehicle owner has the financial resources required to access the BC Courts.

[my5cents]

The term, I believe, for an incident in which there is no fault is an inevitable accident.

It is discomforting to hear of cases that are litigated to the extent shown, when they are so baseless. One would think that a supervisor or in the least the lawyer defending the case for ICBC would understand and settle the case before it went as far as it did. Not something that instills confidence in ICBC.

As for the pothole case, that will be very interesting. The norm has always been that if you damage your vehicle in a pot hole it's a collision claim, subject to your deductible and loss of any discount. One particular pothole on Harvey a few years ago, was a dilly. It was full of water so a driver had no idea it was there and further more no idea it was a foot deep.

I do recall private insurance though. My car was broken into, lost a bunch of eight tracks and suffered a broken no draft. The insurance company paid for the window and bought me one 8 track, without a whimper the next thing I got was a form letter telling me my insurance was cancelled. (No other claims what so ever)

[LongHaul]

This is an interesting case which may be of help to anyone who has an accident caused by an animal on the road. It shows there is a difference on how ICBC will charge damages depending on whether the vehicle hit the animal or missed it. This will determine if the claimant is assigned fault with a possible increase in premiums.

The case is also interesting as the Claimant took ICBC to Small Claims Court and represented herself. ICBC was represented by a lawyer. The court cost as mentioned by the judge at the conclusion of the case was very affordable when compared to the astronomical cost to take a case through the higher courts.

In this case the driver (Claimant) was a couple of vehicles behind a truck which struck a coyote leaving it lying in the lane the Claimant was in. The Claimant saw something ahead in her lane but could not change lanes immediately due to traffic.

When the Claimant changed lanes there was a impact that caused her to lose her grip on the steering wheel. As a result the car pulled to the right side of the road, hit a sign and ended up in a grassy ditch. The car suffered considerable damage.

ICBC did not dispute most of the Claimant's evidence except for the part about her vehicle making impact with the coyote lying on the road. The Claimant had described the accident to a Dial-a-Claim adjustor. The Claimant told the adjustor she did not hit the animal. The adjustor noted this statement knowing this was important as to how the claim would be charged. In court the Claimant testified what she was saying to the adjustor was that she was not the person who initially hit the coyote.

Based on this statement and the fact there wasn't any animal material on her car after it was towed ICBC charged the claim to the Claimant's collision coverage. This meant the Claimant would have to pay the deductible ($300) and as there was element of fault assigned there could be an increase in her premiums.

The Claimant disputed this decision by ICBC, insisting that driving over part of the animal must be the reason she lost control. If the Claimant had impacted the animal it would mean the claim would be charged to her Comprehensive Coverage which would not result in an increase in premiums. The Claimant had an excellent driving record to this point.

The judge outlined the definitions for Comprehensive Coverage and Collision Coverage as follows:

“Comprehensive and collision coverage are each defined in section 1 of the Insurance (Motor Vehicle) Act Regulation, B.C. Reg. 447/83. Those definitions respectively read as follows:
"comprehensive coverage" means coverage for loss or damage other than loss or damage to which collision coverage applies and includes coverage for loss or damage caused by missiles, falling or flying objects, lightning, fire, theft or attempted theft, earthquake, windstorm, hail, rising water, malicious mischief, riot or civil commotion or the stranding, sinking, burning, derailment, upset or collision of a conveyance in or on which a vehicle is being transported on land or water, vandalism and impact with a domestic or wild animal, either living or dead;

 "collision coverage" means coverage for loss or damage caused by upset of a vehicle or collision of a vehicle with another object, including, but not limited to,
(a) the surface of the ground, the roadway being travelled on or an object on, in, under, over or adjacent to the roadway, including a road sign, guard rail, pier, bridge or culvert or any body of water or waterway under or adjacent to the pier, bridge, culvert or roadway,
(b) a pedestrian as defined in Part 3 of the Motor Vehicle Act,
(c) a vehicle attached to the vehicle, and
(d) cargo, including animals, carried in or on a commercial motor vehicle the gross vehicle weight of which exceeds 5 000 kg or a commercial trailer,
and includes coverage for loss or damage caused by collision with another object where the collision results from the presence on or adjacent to the roadway of a domestic or wild animal, either living or dead, but there is no impact with the animal;”

The Judge's Analysis and Verdict condensed somewhat follows:

“Counsel for the Defendant (ICBC) asks me to disbelieve the Claimant’s evidence about whether or not her vehicle came into contact with the coyote. In my view however, the Claimant was a credible and honest witness and her evidence was in all other respects internally and externally consistent with the remainder of the evidence. I am unable to accept it as a given that there ought to have been remnants of the animal on the undercarriage of her vehicle because of the uncertainty about the distance between the ground and the Claimant’s vehicle, the size of the animal and the place where the vehicle came to rest and where it was towed from (a grassy ditch), or any indication of when ICBC inspected the vehicle and where it had been in the interim. The possibility that there could or should have been animal residue on the underside of her vehicle is not great enough for me to question the Claimant’s credibility.”

I also accept the Claimant’s explanation that the conflict in her evidence with that of ICBC is one of semantics. She testified that she told ICBC that she did not “hit” the animal, meaning that it was not her vehicle which initially struck the coyote. This is consistent with the abbreviated Claims File Report which concludes by saying that the Claimant “made no contact with the animal, a vehicle ahead… did.” This suggests that the statement of “no contact” related to which vehicle struck the animal. The conflict in the evidence is more consistent with both witnesses having a differing understanding of the words said as opposed to the Defendant’s suggestion that the Claimant is being dishonest.

What gives greatest support to the Claimant’s evidence in my view however is the manner in which the accident occurred. Something caused the Claimant to lose control of her vehicle and end up in the ditch. If she hadn’t struck the animal, then it would have been a matter of a simple lane change. The Claimant’s excellent driving history is not indicative of someone who would have panicked or overcompensated and hit the ditch. For these reasons, I accept the Claimant’s evidence that the circumstances were such that she was unable to avoid running over the dead coyote with her vehicle, causing her to lose control of it and end up in the ditch.

I find that the Claimant’s act of driving over the deceased coyote, such as to cause a loss of control of the vehicle, falls well within the meaning of the word “impact” as used in the definition of comprehensive coverage, quoted above. From this conclusion, applied to the facts as I have found them, it follows that the Defendant is obligated at law to provide the Claimant with comprehensive coverage in accordance with the Insurance (Motor Vehicle) Act and regulation.
For the foregoing reasons it is ordered that the Claimant shall have judgement against the Defendant for the sum of $300, as well as her costs in the amount of $176.00.”

It appears the Small Claims Court cost was $176 as the $300 was the refund of her deductible. If this is correct the court cost was very reasonable.

The judge had an observation about the coverage definitions which follows:

“These definitions create a curious legal situation in which the decision of whether or not someone is actually covered by their comprehensive coverage depends on whether or not the driver is able to avoid striking the object or not. It can give rise to absurdities in certain cases. For example, if a driver in northern British Columbia  suddenly has a moose jump out onto the highway in front of his or her vehicle, a collision with such an animal can often leads to a fatality. The wiser course of action will often be to avoid the animal by swerving into a ditch. Under these definitions however the driver who strikes the moose would be subject to comprehensive coverage, while the driver who avoids the moose and hits the ditch would be penalized. This seems to be an artificial distinction that can often result in unfairness to citizens like the Claimant who pay their insurance premiums faithfully and otherwise practise safe driving habits.”

It would seem if one does hit an animal, ends up in the ditch and there is animal material on the vehicle it would be best to get this witnessed before the vehicle is towed away. Could avoid a possible dispute with ICBC.
The link to the case is:

http://canlii.ca/en/bc/bcpc/doc/2006/2006bcpc143/2006bcpc143.html

[my5cents]

Nothing new here. The dispute was caused by the insured telling ICBC she didn't hit the animal and the adjuster not obtaining a full statement. A good adjuster would have followed up with her. ie :

"I did not hit the coyote, a large truck in front of me did. As I arrived at the spot at which the large truck had hit the coyote, I saw the coyote's body in my lane and I swerved and lost control. I didn't actually come in contact with the body..."

OR if she actually drove over the body (and thus should be covered for the loss under he comprehensive coverage)

"I did not hit the coyote, a large truck in front of me did. As I arrived at the spot at which the large truck had hit the coyote, I saw the coyote's body in my lane I could not avoid the body and as my tire drove over the body, it caused my vehicle to go out of control...."

What confuses me is the refund of the $300. Generally the various insurance packages have standard deductibles. There is NO comprehensive coverage that is subject to NO DEDUCTIBLE. So why the refund of the $300 collision deductible ? The $300 should just move over for the comprehensive deductible to the comprehensive deductible.

The only difference in winning this case should be the elimination of the increase in her Claims Rates Scale (increase in next year’s insurance).

Generally, pi$$ poor adjusting, nothing new there.

[solidfiction]

the whole coyote thing makes no sence.Hitting a small animal such as a dead coyote should not cause you to loose controll of your vehicle in the first place then the dedeuctable is $300.?? how was it she was refunded a standard deductable? was she claiming that the person whom killed the coyote is at fault?

[my5cents]

the whole coyote thing makes no sence.Hitting a small animal such as a dead coyote should not cause you to loose controll of your vehicle in the first place then the dedeuctable is $300.?? how was it she was refunded a standard deductable? was she claiming that the person whom killed the coyote is at fault?

Well insurance is geared to the lowest common denominator, whether or not the coyote caused her to lose control isn't the issue the court was asked to decide.

The court ruled that the loss was a comprehensive loss. The only way one would not have to pay a deductible on a comprehensive loss, would be if ICBC had recovered the amount from a liable party.

ie, your car is vandalized, you pay the bodyshop the $300 deductible and ICBC pays the remainder to fix the vehicle. The person who committed the vandalism is caught and ICBC recovers the amount it cost to fix the loss from the guy who vandalized your car. In that full amount ICBC received, is your comprehensive deductible. ICBC would then give it back to you.

Cost to fix car $500.00
Deductible 300.00
ICBC paid $200.00

ICBC gets back $500 from bad guy, keeps their $200 and give you back your $300.

[LongHaul]

2013/03/28 My5cents wrote:

What confuses me is the refund of the $300. Generally the various insurance packages have standard deductibles. There is NO comprehensive coverage that is subject to NO DEDUCTIBLE. So why the refund of the $300 collision deductible ? The $300 should just move over for the comprehensive deductible to the comprehensive deductible.

That part wasn't clear to me either. Am guessing the judge is setting things back to square 1 before the claim is switched to the Comprehensive Package. Then part or all of the $300 would be used to cover off whatever the deductible on the Comprehensive was.

The case was educational for me. Didn't know there would be difference in how a claim was handled depending on if one hit the animal or not.

[my5cents]

That part wasn't clear to me either. Am guessing the judge is setting things back to square 1 before the claim is switched to the Comprehensive Package. Then part or all of the $300 would be used to cover off whatever the deductible on the Comprehensive was.

The case was educational for me. Didn't know there would be difference in how a claim was handled depending on if one hit the animal or not.

The confusing thing is that the lowest deductible for comprehensive (except glass) is $300.

You should take note that not only does it depend on what you hit but what the thing is doing.

"comprehensive coverage" means coverage for loss or damage other than loss or damage to which collision coverage applies and includes coverage for loss or damage caused by missiles, falling or flying objects, lightning, fire, theft or attempted theft, earthquake, windstorm, hail, rising water, malicious mischief, riot or civil commotion or the stranding, sinking, burning, derailment, upset or collision of a conveyance in or on which a vehicle is being transported on land or water, vandalism and impact with a domestic or wild animal, either living or dead;

Note that "objects" must be "falling" or "flying", which covers one hitting a rock slide that has occurred enough time prior to the hitting so that the object isn't falling or flying, which would make the collision with the rock slide a collision claim.

If the rocks are coming down and you hit them, it's a comprehensive claim.

You arrive at the scene of a car accident, the accident is over and they cars are stopped at the side of the road, you drive over a piece of debris and damage your car. That is a collision claim, subject to your collision deductible and an increase in your claims rated scale.

You are following a car that is hit by another car, the debris is flying and is still landing as you drive over a piece of debris. That is a comprehensive claim (if for some reason it isn't covered by the responsible vehicle's insurance) you pay your comprehensive deductible there is no increase in your claims rated scale. Likely the claim will be handled and paid for by ICBC under your comprehensive, while they investigate, once ICBC has established which vehicle was at fault, your deductible will be refunded to you.

No wonder the average motorist doesn't have a clue about the coverage he or she has.

[LongHaul]

“my5cents wrote:

Note that "objects" must be "falling" or "flying", which covers one hitting a rock slide that has occurred enough time prior to the hitting so that the object isn't falling or flying, which would make the collision with the rock slide a collision claim.

If the rocks are coming down and you hit them, it's a comprehensive claim.

You arrive at the scene of a car accident, the accident is over and they cars are stopped at the side of the road, you drive over a piece of debris and damage your car. That is a collision claim, subject to your collision deductible and an increase in your claims rated scale.

You are following a car that is hit by another car, the debris is flying and is still landing as you drive over a piece of debris. That is a comprehensive claim (if for some reason it isn't covered by the responsible vehicle's insurance) you pay your comprehensive deductible there is no increase in your claims rated scale. Likely the claim will be handled and paid for by ICBC under your comprehensive, while they investigate, once ICBC has established which vehicle was at fault, your deductible will be refunded to you.

No wonder the average motorist doesn't have a clue about the coverage he or she has.”

Thanks for the good explanation which made things a lot clearer. Will remember to note if things are still moving/flying if am ever in a situation of hitting debris on the road. Didn't know this distinction was that important.