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Incorrect principal operator and denial of insurance by ICBC

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Re: Incorrect principal operator and denial of insurance by

Postby LoneWolf_53 » Sep 28th, 2012, 8:47 pm

Might just be that they rate badly because they have a tendency to view their clientelle as guilty unless they can prove themselves innocent.

Well that and their convoluted way of wording insurance, which a layman can only interpret as a devious ploy to give themselves various loopholes to use to get out of paying a claim.

I admit it's several decades back but I still recall quite well that back then if I put insurance on my truck I was insured, and it didn't matter whether I was driving it on the second Tuesday in May of a leap year or not. :200:
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Re: Incorrect principal operator and denial of insurance by

Postby my5cents » Sep 29th, 2012, 10:47 am

I also wonder if it is product ignorance.

I've spoken to many many people who have no idea the make-up of ICBC insurance.

For example one question that I've asked a lot of people.....

OK, what if ICBC only had the monopoly on the very very basic coverage. The minimum to put plates on a car and drive it in BC. That amount in BC is $200,000 liability insurance.

That way you know that if a car has license plates it is covered for at least the basic liability coverage.

What if all the rest, additional liability insurance, comprehensive coverage and collision coverage was in complete competition with private. How would that be ?

So many say "Yes that would be great".

...and of course the answer is that's what we already have.
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Re: Incorrect principal operator and denial of insurance by

Postby LongHaul » Oct 29th, 2012, 9:46 pm

This case from courts data base is about a denial of ICBC insurance coverage after an accident that happened when equipment attached to a motor vehicle was being operated. The wording in the Insurance (Motor Vehicle) Act for attached equipment allowed ICBC to come up with a couple of creative arguments for denying insurance.

With attached equipment it seems to be safe one should check if there could be circumstances where a standard policy would not provide coverage while this device is being operated.
There may be additional insurance one can put on to ensure there is coverage in all circumstances and avoid a possible denial of coverage. The following is an attempt to summarize this interesting case. The URL to its location is below.

http://www.courts.gov.bc.ca/jdb-txt/SC/10/10/2010BCSC1028.htm

The owner of a large flatbed truck with an attached crane was delivering goods to a destination in the interior of BC. As required by law he pulled into a weigh scale at Hope. There he was advised the load was overweight and too wide. To address these issues he decided to unload a heavy piece of equipment and come back the next day for it. The truck was driven to an isolated spot at the weigh scale to do this.
The owner set the outriggers and levelled the truck in preparation for operating the crane. He then went to the crane controls in front of the truck deck and lifted the crane arm. His assistant walked along the top of the load and hooked the chain from the crane to the lifting hook on the equipment. As the assistant was walking back to get off the equipment he felt the load shift. Fearing for his safety he jumped off the load and was injured. He sued the owner for negligence and was awarded a significant settlement.

However ICBC denied that the owner's third party insurance was in effect at the time of the accident and refused to pay the judgement. The assistant took ICBC to court to get the judgement paid from the owner's ICBC insurance.

ICBC gave two arguments based on the Insurance (Motor Vehicle) Act why they should not have to pay the third party claim.

(1): “ICBC contends the loss did not arise out
of the use and operation of a motor vehicle under s. 64: it argues that
at the time of the accident, the outriggers were extended, and the truck
ceased to be a motor vehicle and became a crane (the coverage issue).”

(2):”Alternatively, ICBC contends that his loss is excluded by s. 72 which
excludes liability arising out of the operation of attached equipment at
a site (the exclusion issue).”

The judge went through a lengthy analysis of applying these two sections from the Insurance (Motor Vehicle) Act to this case.

Will try to summarize the judges comments:
For the first ICBC argument the judge noted the owner was required by law to pull into the weigh scale and address any issues noted by the attendants. In doing so this was a normal motor vehicle operation for his truck which involved loading, transportation and unloading of goods. The use of the attached crane to do what was also a normal loading or unloading activity for the operation of this vehicle did not transform the truck into a commercial crane.

For the second argument put forth by ICBC it came down what was meant by “at a site”. The judge after a lengthy discussion on how “site” should be interpreted in the Insurance (Motor Vehicle) Act came to the conclusion an out of the way spot at a weigh scale is not a “site”. A site would refer to something specific like a construction site, work site, etc in the usual meaning of the word.

The judge's ruling follows:
1) a declaration that the defendant Insurance Corporation
of British Columbia is liable to pay the full amount of the judgement
awarded to the plaintiff , plus the claim for costs and any interest accrued or
accruing, to the limit of the plan or policy of insurance in place with the Insurance Corporation of British Columbia and
2) costs of this action.

Notice the accident appears to have happened in October, 2003 and this case wasn't completed until July, 2010. However there were two cases, the assistant suing the owner for negligence and this one which started after the assistant won the first case. It appears it took the assistant nearly 7 years to get his payment.
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Re: Incorrect principal operator and denial of insurance by

Postby damngrumpy » Oct 29th, 2012, 10:25 pm

I personally have never had a problem with ICBC, Yes I have been run into five times
by motorists who for some reason chose me. I have always followed the rules I have
always been treated fairly and without delay.
I think the ICBC corp should ensure that all fines are paid, all child enforcement laws
are up to date and paid. All other fines and monies owed should be paid up or at least
forced to pay by arrangement. I don't have a problem with it. If the insurance was done
on the phone its the customers fault. The customer should go to the nearest office where
all documents are laid out on the table and everyone understands what is happening.
If someone is a principle driver who no longer works for the company it is the customer
who has to make sure the new employ is put on the insurance.
In turn I can say that since ICBC came into existence I have never been confronted with an
employee who is rude or arrogant and I have always been treated with respect.
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Re: Incorrect principal operator and denial of insurance by

Postby LongHaul » Oct 30th, 2012, 12:55 pm

“ On Oct 29 10:25PM damngrumpy wrote:
I personally have never had a problem with ICBC, Yes I have been run into five times
by motorists who for some reason chose me. I have always followed the rules I have
always been treated fairly and without delay.”


I am glad you have had good service from ICBC. However suggest be sure your insurance is kept air tight and don't get too relaxed when dealing with ICBC. In most cases the local adjustors seem to be reasonable people doing a tough job working for a crown corporation which in my personal view would not rate highly as a company to work for. Be very careful anything you sign accurately reflects what you have told the adjustor. If Vancouver Head Office spots anything in the file sent to them they think may be an opportunity to deny or change the allocation of fault my understanding is they can over rule the recommendation of the local adjustor.

Also be aware the adjustor can be under what could be seen as two conflicting pressures. On the one hand the local adjustor wants to provide a service to you and on the other hand the local adjustor wants to look good on their performance metrics of cost/time spent on a file and the amounts paid out on claims. The URL below explains this better and in more detail.

http://www.icbcadvice.com/getting-started-with-my-ICBC-claim/ICBC-adjusters-wearing-two-hats.php
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Re: Incorrect principal operator and denial of insurance by

Postby LongHaul » Nov 17th, 2012, 11:24 am

This case describes what one is expected to do if they are involved in an accident resulting in injuries caused by a vehicle whose driver and or owner is unknown.

Just promptly reporting the accident to the police and ICBC may not be good enough if there is an injury claim.

Will try to summarize the case illustrating this and some suggested actions one should take in an accident involving a vehicle with an unknown driver and or owner.

As per the Motor Vehicle Act the person making the claim (Plaintiff) must make all reasonable efforts to ascertain the identity of the unknown driver/owner as a prerequisite to recovery from the Insurance Corporation of British Columbia (“ICBC”) as a nominal defendant.

In effect the plaintiff must be able to show that he/she made a reasonable effort to track down and identify the unknown driver or owner of the vehicle. Some of the actions that may be expected by ICBC are:

(1): Question potential witnesses in the area.
(2): Make inquiries of residents in the area.
(3): Post a sign in the vicinity of the area seeking witnesses.
(4): Post a classified ad in the newspaper seeking witnesses.

These seem to be minimal requirements and a bit dated. One could look for any video cameras mounted in the area. Due to the Privacy Act getting access to the footage probably requires jumping through some expensive legal hoops. Don't know if ICBC would assist with getting access?
One could also search the Internet in case it was a notable event in someone's day, a video or picture was taken and posted to their Internet page.

Failure by the claimant to investigate and try to identify the unknown driver or owner may be enough for ICBC to get the claim dismissed. If one had an opportunity to get the licence plate number and did not do so ICBC may have enough grounds to get the claim dismissed.

In this case a motorcycle rider accompanied by two other riders was driving uphill going through an S shaped curve. On one side of the road was a cliff face and on the other was a sheer drop off with a concrete barrier in front of it. This was an isolated section of the highway without any buildings or houses in the area. On the highway there was a two foot wide diesel spill that was about 0.5 to 0.75 KM long hidden by tree shadows. When the motorcycle operator's tires went onto the spill they spun out from underneath the bike. The motorcycle slid across the highway and hit the concrete barrier. The driver was injured.

It appeared the contractor responsible for this section of the highway had sanded part of the spill.
After the driver was taken to the hospital the accident was reported to the RCMP and ICBC. The oil spill was called into the contractor responsible for that section of the highway.

The driver (plaintiff) started an action for damages and named the highway contractor, the Provincial Crown and ICBC as a nominal defendant. ICBC responded with an application to dismiss the claim with the argument the driver had not made a reasonable effort to identify the driver/owner of the vehicle that caused the spill.

Actions listed by ICBC they felt were required for a reasonable effort were:

(a) ask questions of the sand truck operator as to whether he had any knowledge of the person(s) responsible;
(b) make inquiries of residents in the neighbourhood;
(c) post a sign in the vicinity of the accident seeking witnesses; and
(d) post a classified ad in any newspaper seeking witnesses.

The plaintiff responded (have summarized the responses):

(a): the contractor was contacted for information about who caused the spill and the contractor did not have any information.
(b): There aren't any residents in this isolated section of the highway.
(c): Posting a sign was decided against as slowing or stopping to read it in this section of the highway would be creating a dangerous situation that could lead to an accident.
(d): it was unclear which newspaper would be effective for covering this isolated area.

The judge rejected ICBC's application to dismiss the plaintiff's claim, finding:

The plaintiff was not in a position at the time of the accident, when he was injured and required medical treatment, to make inquiries as to the identity of the driver/owner of the truck that spilled the fuel.
The trial judge also found that:

(i) the evidence of the geography of the area where the accident occurred indicated that there weren't any buildings within sight of the highway from which a witness might have seen the spill;
(ii) the accident occurred on an uphill S-curve on a road without shoulders where it would be dangerous for drivers to stop and take note of a posted sign at the scene of the accident; and
(iii) given the isolated area of the highway where the accident occurred and the nature of the diesel spill, the chance of a newspaper ad proving successful was extremely remote.

The trial judge concluded that the additional efforts suggested by ICBC would not have been reasonable in the circumstances.

The judge noted the plaintiff through his counsel had contacted the highway maintenance contractor in an attempt to obtain information about the owner/driver of the vehicle that caused the spill.

Found it strange ICBC then decided to appeal the verdict. Did ICBC expect the plaintiff in order to comply with their suggested action (b) to have climbed up and down the rock faces in case there were local residents living in a hidden cave? If ICBC was certain there were residents in this isolated area couldn't one or more of their 258 underutilized employees (as per a recent report on ICBC) been sent out to check before going ahead with the appeal?

The Appeal Judges came to the same verdict and dismissed ICBC's appeal.

It wasn't mentioned what the size of the claim was but it's possible the legal fees ICBC paid out exceeded the claim. All paid for with our money. The time to bring this case to a conclusion was over 4 years from July, 2007 to Oct, 2011.
The link to the case follows:
http://www.courts.gov.bc.ca/jdb-txt/CA/11/04/2011BCCA0422.htm
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Re: Incorrect principal operator and denial of insurance by

Postby Ken7 » Nov 17th, 2012, 2:23 pm

If you need ICBC, you will find what they suggest you have for coverage is not what you have paid for.

I recently was involved in an injury MVA. I am now taking physiotherapy weekly in an attempt to recover from injury.

The first thing my adjuster sends me is an email stating I only get $28.00 per visit for physiotherapy. This does not cover costs. Has anyone had this happen to them??


This is what basic insurance states you have for coverage...


Accident Benefits

Accident Benefits covers medical care or financial support after a crash. It covers you and members of your household, plus any other occupants of your vehicle, as well as cyclists or pedestrians who collide with your vehicle. If you are eligible, you get: Medical expenses and rehabilitation costs.
Loss of earnings up to $300 per week.
Funeral expenses and death benefits for your surviving spouse and dependants.
Coverage for pedestrians and cyclists involved in a crash.
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Re: Incorrect principal operator and denial of insurance by

Postby my5cents » Nov 17th, 2012, 3:21 pm

Ken7 wrote:If you need ICBC, you will find what they suggest you have for coverage is not what you have paid for.

I recently was involved in an injury MVA. I am now taking physiotherapy weekly in an attempt to recover from injury.

The first thing my adjuster sends me is an email stating I only get $28.00 per visit for physiotherapy. This does not cover costs. Has anyone had this happen to them??


This is what basic insurance states you have for coverage...


Accident Benefits

Accident Benefits covers medical care or financial support after a crash. It covers you and members of your household, plus any other occupants of your vehicle, as well as cyclists or pedestrians who collide with your vehicle. If you are eligible, you get: Medical expenses and rehabilitation costs.
Loss of earnings up to $300 per week.
Funeral expenses and death benefits for your surviving spouse and dependants.
Coverage for pedestrians and cyclists involved in a crash.


There's two parts to an insurance claim. If this loss was NOT your fault there is always TORT, over and above your No Fault Coverage. Otherwise, you're subject to ICBC's limitations. I think ICBC, much like other carriers, pay the "official rate", which is a rate less than most rehabs charge.

I have extended health benefits and if I need physio they only pay a certain amount, and I pay the rest.

If this is the case (the collision wasn't your fault), when you settle with ICBC for pain and suffering, you can include all your extra costs, like the rehab you had to pay yourself.
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Re: Incorrect principal operator and denial of insurance by

Postby Ken7 » Nov 17th, 2012, 3:32 pm

Thanks 5cents... I will see later then!!

It just would be easier if they paid, not sure whats up they know who was at fault.

Thanks!!
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Re: Incorrect principal operator and denial of insurance by

Postby LongHaul » Nov 18th, 2012, 8:52 pm

Ken7 wrote:
If you need ICBC, you will find what they suggest you have for coverage is not what you have paid for.


Posted the links to two websites below which may have information on benefits useful to you.

http://www.kazlaw.ca/index.php/trial-achievements/icbc-process

http://www.icbcadvice.com/ICBC-part-7-vii-claim-tips/types-of-part-vii-benefits.php

Searched the ICBC web site for what the rates are but although they talk about rates could not find the actual $ amounts.

If you are negotiating with ICBC on your own the icbcadvice.com site could be useful. I find their information readable, common sense and is targeted at individuals dealing with ICBC.

This is the site ICBC was harassing a few years back and tried to get ownership of the name icbcadvice.com transferred to ICBC. This would have effectively taken the site off the air. ICBC took the site owners to court to get the name but lost.

The link to the starting page follows:

http://www.icbcadvice.com/index.php
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Re: Incorrect principal operator and denial of insurance by

Postby Ken7 » Nov 18th, 2012, 10:53 pm

LongHaul wrote:
Ken7 wrote:
If you need ICBC, you will find what they suggest you have for coverage is not what you have paid for.


Posted the links to two websites below which may have information on benefits useful to you.

http://www.kazlaw.ca/index.php/trial-achievements/icbc-process

http://www.icbcadvice.com/ICBC-part-7-vii-claim-tips/types-of-part-vii-benefits.php

Searched the ICBC web site for what the rates are but although they talk about rates could not find the actual $ amounts.

If you are negotiating with ICBC on your own the icbcadvice.com site could be useful. I find their information readable, common sense and is targeted at individuals dealing with ICBC.

This is the site ICBC was harassing a few years back and tried to get ownership of the name icbcadvice.com transferred to ICBC. This would have effectively taken the site off the air. ICBC took the site owners to court to get the name but lost.

The link to the starting page follows:

http://www.icbcadvice.com/index.php




I'm aware of what you have stated. I actually cut and pasted in my post......
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Re: Incorrect principal operator and denial of insurance by

Postby LongHaul » Dec 26th, 2012, 9:27 pm

This is a case about denial of insurance due to a driver employed by a trucking company not having a valid driving licence. It's a situation that could also happen to anyone who lends a vehicle not knowing the person borrowing it has an invalid licence. Have always thought it was black and white that one's insurance would be toast without any possible recourse in such a case. However as this case shows depending on the circumstances one may be able to get their insurance coverage back but will probably have to take ICBC to court to do it.

In the trucking company's case Murphy's law kicked in and the driver with the invalid licence had an accident.

The owner had checked the potential employee's licence during the hiring process and it appeared to be valid. The potential driver was a family friend and the owner knew he was experienced.
After hiring the driver but before the accident the owner requested an abstract of the employee's driving record from Motor Vehicles. The owner's purpose in ordering this document was to check the driver's record of infractions. A section in this document also listed the current status of the driver's licence and showed it as expired. The owner did not check the section on licence status as he believed the driver had a valid licence and only read the section of interest which described driving offences.

ICBC was unsympathetic to the owner's explanation of how a driver with an invalid licence was inadvertently hired and basically ruled- you missed the invalid licence, insurance denied, too bad, so sad. The owner took ICBC to court to get his insurance coverage back.

The Motor Vehicle Act has a paragraph describing when a vehicle owner is not liable for a contravention when his vehicle is driven by someone else.
“ 3) An owner must not be held liable under under subsection (2) or (2.1) if the owner establishes that
(a) the person who was, at the time of the contravention, in possession of the motor vehicle was not entrusted by the owner with possession, or
(b) the owner exercised reasonable care and diligence when the person entrusted the motor vehicle to the person who was, at the time of the contravention, in possession of the motor vehicle.”


The judge stated the material submitted by both sides showed the owner to be scrupulously honest and he was satisfied the owner would not have allowed a driver without a valid licence operate one of his trucks. The judge was also satisfied the owner did not know the driver had an invalid licence.
The question was as the judge put it-
“ The question then is: was examining the licence the driver presented upon employment sufficient to satisfy the test of reasonable prudence or did reasonable prudence require a more thorough examination of the abstract provided by the Superintendent?”


The judge noted the section in the abstract from Motor Vehicles describing licence status was somewhat obscure and paradoxical. The section started out describing the driver's licence as “Normal” and then further down noted no licence.

The judge reviewed other cases finding there was not a standard practice in the trucking industry for verification of licences.

The judge's decision follows.
 “ I concluded the owner's acceptance of the driver’s licence as valid was reasonable and that prudence required no further enquiry given the family friendship, the obscure reference to the expiry date in the driver’s record of infractions and the slightly less obscure and somewhat paradoxical reference in the abstract to a “normal” driver status.
There will be a declaration that the owner is entitled to insurance coverage.”


Time to settle the case was nearly three years.

The link to the case is.

http://www.courts.gov.bc.ca/jdb-txt/sc/99/18/s99-1844.htm
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Re: Incorrect principal operator and denial of insurance by

Postby my5cents » Dec 26th, 2012, 10:19 pm

All well and good that this judge felt that this trucking firm showed that the trucking firm "was reasonable and prudent".

But that is just one decision from one judge.

What about the judge that ruled that, ICBC had to pay for the injuries to a passenger in a stolen vehicle.... the vehicle had been chased by the RCMP, the stolen vehicle stopped and when the RCMP member got out it raced away a couple of times. One of the times the vehicle did so, the RCMP member, running after the vehicle with his gun out, and tripped and fell. As he did, his gun went off and he accidentally shot one of the occupants of the stolen vehicle through the back window of the stolen vehicle. ICBC was told to pay.

So we can't judge one decision, by one judge, as the rule of law.

I don't know if I'd want to truck nuclear waste with a trucking company that can't figure out a driver's abstract.

I think the principle of reasonableness really comes into practice when, for example.... your neighbor, who you've known for years and you see drive in his own vehicle to work every day, asks to borrow your truck to take something to the dump and you lend it to him. He smashes up and you find out he doesn't have a license. It would be reasonable for you to believe that he had a license based on his regular driving pattern, even though you didn't check his license.

A trucking company, receiving a driver's abstract that on it's face states the subject is not licensed ? I don't care how confusing it is, if it wasn't fully understood, a phone call or inquiry was in order.

Some times you get lucky with a judge, they obviously did.
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Re: Incorrect principal operator and denial of insurance by

Postby LongHaul » Jan 19th, 2013, 10:30 pm

my5cents wrote:


So we can't judge one decision, by one judge, as the rule of law.

I don't know if I'd want to truck nuclear waste with a trucking company that can't figure out a driver's abstract.

I think the principle of reasonableness really comes into practice when, for example.... your neighbor, who you've known for years and you see drive in his own vehicle to work every day, asks to borrow your truck to take something to the dump and you lend it to him. He smashes up and you find out he doesn't have a license. It would be reasonable for you to believe that he had a license based on his regular driving pattern, even though you didn't check his license.


The decision was a surprise to me as expected it would be come down to not completely reading the driver's abstract is not an acceptable excuse. Similar to ignorance is not an excuse for breaking the law. The judge's ruling to reinstate the owner's insurance sets a precedent which will be referred to in future similar cases and supports previous precedents the judge referred to in making his decision.

When one is hiring a driver or lending out a vehicle it seems from the cases referred to as precedents a great deal of weight is put on did the owner ask to see the driver's licence. In one case quoted as a precedent the owner checked the driver's licence but missed that it had expired. The owner didn't have his glasses available at the time. The driver had an accident and ICBC denied coverage. The owner took ICBC to court and the judge ruled the owner was entitled to insurance. The courts seem to be more forgiving of errors like this than ICBC is.

In the example above of lending a vehicle to one's neighbour it would seem to be safe ask to see the neighbour's licence even if one has seen the neighbour driving for years. For example there is the chance the neighbour may have forgotten to renew the licence. Assume the licence check seems to confirm a valid licence and the vehicle is lent to the neighbour. If there is an accident and ICBC denies insurance due to some irregularity about the driver's licence the fact the owner asked to see the licence could be a major factor in getting a denial of insurance overturned.

Or it may be the neighbour has forgotten the licence and it's back home laying on the dresser. There is an accident and the neighbour is found not to be carrying a licence. Don't know if ICBC would seize this as an opportunity to deny coverage? Not something I would want to test.
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Re: Incorrect principal operator and denial of insurance by

Postby my5cents » Jan 19th, 2013, 10:57 pm

LongHaul wrote:The decision was a surprise to me as expected it would be come down to not completely reading the driver's abstract is not an acceptable excuse. Similar to ignorance is not an excuse for breaking the law. The judge's ruling to reinstate the owner's insurance sets a precedent which will be referred to in future similar cases and supports previous precedents the judge referred to in making his decision.

When one is hiring a driver or lending out a vehicle it seems from the cases referred to as precedents a great deal of weight is put on did the owner ask to see the driver's licence. In one case quoted as a precedent the owner checked the driver's licence but missed that it had expired. The owner didn't have his glasses available at the time. The driver had an accident and ICBC denied coverage. The owner took ICBC to court and the judge ruled the owner was entitled to insurance. The courts seem to be more forgiving of errors like this than ICBC is.

In the example above of lending a vehicle to one's neighbour it would seem to be safe ask to see the neighbour's licence even if one has seen the neighbour driving for years. For example there is the chance the neighbour may have forgotten to renew the licence. Assume the licence check seems to confirm a valid licence and the vehicle is lent to the neighbour. If there is an accident and ICBC denies insurance due to some irregularity about the driver's licence the fact the owner asked to see the licence could be a major factor in getting a denial of insurance overturned.

Or it may be the neighbour has forgotten the licence and it's back home laying on the dresser. There is an accident and the neighbour is found not to be carrying a licence. Don't know if ICBC would seize this as an opportunity to deny coverage? Not something I would want to test.


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.
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