Tuesday, September 23, 2014

ICBC Advertising Campaign

I have been seeing and hearing the new ICBC advertising campaign a lot over the last few weeks.  The campaign strikes me as interesting in a number of ways.

First, the ICBC commercials leave the general impression that lawyers are not telling injured persons the truth when advising them of the rights in relation to ICBC claims.  This is troubling, of course, because lawyers are neither ethically nor legally allowed to lie to potential clients.  One of the issues that ICBC seems to emphasize is that people can settle when they are ready, and not on ICBC timeline.  The implication is that lawyers are telling people that they will be forced to settle when they are not ready.

I don't know any lawyer who would tell their client that they will be forced to settle their ICBC claim against their will if they don't hire a lawyer.  Personally, I do tell injured persons that they have only two years less one day to settle with ICBC or they have to file a lawsuit to protect their rights.  Now, filing a lawsuit for a personal injury case in not necessarily an easy matter, so in that sense, if you don't want to settle with ICBC within the first two years, you will likely need a lawyer.

Another trick (and I use the word purposely) that has been used in the past is to simply send a "settlement" cheque to an injured person with a letter indicating that the claim will be closed when they cash the cheque.  This happens without any agreement by the injured person that they are ready to settle. Clearly this is inappropriate.

Second, the ICBC commercial states that often, medical benefits can be obtained without having to sign any documents.  If that is true, then that is certainly a new development since most adjusters require a signed statement and a signed CL22 Application for Benefits.  That forms satisfies the following legal requirement contained in the governing legislation and regulations: "within 90 days from the date of the accident furnish the corporation with a proof of claim in a form authorized by the corporation".

So while ICBC may immediately approve some basic treatments such as physiotherapy and massage, at some point they will be looking for those signed documents.  Additionally, ICBC almost universally asks claimants to provide an authorization to access a claimant's medical records.

One important thing to keep in mind is that nowhere in the commercials does it say that ICBC will reach a "fair" settlement with you.  Keep in mind that when trying to reach a settlement, the adjuster is working for the insurance company representing the person who caused the accident.  Of course, in BC that is the same insurance company that insurers all of us, so it is easy to forget that ICBC is not legally required to treat the innocently injured person fairly when it comes time to determine compensation.

The adjuster's job is to close your file for the least amount of money possible.  That does not make them bad people.  It's just their job.

If you have concerns about that, discuss your case with a lawyer experienced in ICBC cases.

Accident caused by snow spray from passing vehicle

With winter approaching, it seems appropriate to review an interesting recent case involving blinding snow. What do you do if you are blinded by snow thrown onto your windshield by a passing motorist? In today's case, an accident ensued and the driver asked the court to find the passing motorist responsible.

The BC Supreme Court decided on September 19, 2014 that an accident caused by a passing motorist throwing a curtain of snow onto the window shield of another car was the fault of the passing driver. The judge found that the overtaking truck passed at high speed even though it was evident that the road was blanketed with snow. It should have come as no surprise to the passing driver that his actions would blanket the other car in a spray of snow.

Mr. Justice Ball stated: "There is, in my view, a very heavy onus on the driver of an overtaking vehicle to make sure that passing can be done in safety; particularly in poor road and weather conditions. The driver of the SUV in this case did not respect the circumstances that the standard of care dictated."

These types of cases demonstrate that no matter what the circumstances, it is always advisable to discuss an accident case with a lawyer to determine your rights.