Coquitlam Lawyer: ICBC Exploits New Laws to Crush the Injured.
Exploiting the 6% Disbursement Limit: a beautifully orchestrated re-victimization of the injured by ICBC.
Recently, a new law came into force and effect. Masked by the abundant dark clouds of ICBC’s new No-Fault regime, is the lightning of ICBC’s new restrictions on a plaintiff’s disbursements. Like lightning, the new law is striking blow after blow to an injured victim’s personal injury case leaving scorches that the citizens of British Columbia know nothing about.
It will be sad to see what is left in the ashes of an injured victim’s personal injury file due to ICBC’s exploits.
Disbursements are the expenses lawyers incur to prosecute a client’s claim. Examples include filing fees for a lawsuit, charges from Physicians for records, and costs for Expert Reports from Specialists Physicians.
Typically, the negligent defendant is responsible to pay for all the victim’s disbursements; the person is injured due to the defendant’s negligence, after all.
The new law, however, limits how much ICBC - strictly ICBC - must cover for a plaintiff’s disbursements. The new law states that only 6% of disbursements of the total settlement or trial award will be covered by ICBC. Only 6%. For example, if your file settles for $40,000 total, and the costs to prosecute your claim equal $5,000, ICBC will only pay for $2,600 of that $5,000. Yes, even though their insured’s carelessness caused you to be hurt, they will only cover 6%.
This has caused lawyers to be conservative with how they spend money to prove your claim because ultimately, you will be responsible for paying disbursements, be it personally from your bank account, or out of your settlement funds/trial award.
So, how has ICBC utilized this law to crush a plaintiff’s case?
In short, your lawyer must be conservative in spending money to prove your claim. This means less reports from Specialist Physicians; fewer medical records ordered; and less experts hired such as Economists and Engineers, among other things.
In contrast, ICBC can spend however much money they please. Their expenditure is unlimited, infinite. They are rich because of you and they can use, often abuse, your funds without cause, concern, caution, or consequence.
ICBC can abuse your funds without cause, concern, caution, or consequence.
As such, ICBC has utilized their position of dominance and affluence to send the injured to as many experts as possible. A recent example is Parent v Krystal, 2021 BCSC 988; in this case, ICBC sought to have the victim attend for audiology testing by Dr. Westerberg, an otolaryngologist (ear, nose and throat specialist); and attend a vocational assessment by Dr. Colleen Quee Newell, a vocational consultant. The plaintiff’s lawyer, futilely, opposed ICBC’s motion. Master Keighley ordered the injured victim to attend the medical examinations.
Just this week, we appeared for a similar application. We had sent our client to one expert; repeat: one expert. We permitted ICBC to send our client to two experts. However, and despite our efforts of compliance, ICBC was seeking permission to send our client to more experts. Like the lawyer in Parent, supra, we futilely opposed ICBC’s motion; Master Vos not only ruled in favour of ICBC, but awarded ICBC costs for the Application- as if the injured victim had done something criminal for not wanting to pricked, prodded, and probed by as many experts as ICBC desires.
It is now likely that our client, as well as the plaintiff in Parent, will have to incur more costs to rebut ICBC’s experts; the costs will be imperative to prove our client’s claim. Notwithstanding, this also ensures our client’s disbursements increase substantially and more than the 6% the new law permits.
Until a Master or Judge stands up to ICBC, this will be the new norm: limitless ICBC experts, akin to lightning bolts, striking the injured victim’s case leaving scorch after scorch until the case and the client are reduced to ashes.
Master Vos noted that our client’s dislike of the new law, or desire not to be probed infinitely, were not just cause to oppose ICBC’s motion. It is not, however, dislike that bred opposition; rather, it was ICBC’s abuse and exploits.