I will often get calls or emails from people wondering “do I have an ICBC claim?” In most cases, these people actually do have an ICBC claim. What often surprises me is how often ICBC tells you that you that you do not have a claim, when you actually do (or at least that is what the client hears). Unfortunately, too many people take ICBC at their word or do not understand what is being communicated. Sometimes, it’s not that ICBC has actually said that you do not have a claim it’s that they have told you they will not pay you anything for your claim, or do not believe you have a claim based on the information in their possession. So, when do you have a claim for personal injury?
As an ICBC insured, if you are injured in a motor vehicle accident (as a driver, passenger, cyclist or pedestrian), regardless of fault, you are generally entitled, at a minimum, to some very basic accident benefits. In the ICBC world (somewhat akin to the Land of Oz), this is what is known as a Part 7 claim. The type and amount of benefits you are entitled to is governed by legislation. These benefits are minimal (some wage loss, some medical and rehabilitation costs, death benefits, etc.) but at least there is something. The only reason you will not receive these benefits is if you are entitled to worker’s compensation benefits (because you were working at the time of your accident) or you are in breach of your ICBC policy. You may be in breach of your policy if you were drinking and driving, lied to ICBC, were using the vehicle contrary to your insurance (i.e. too many passengers), racing, have not provided a statement or medical information they require, or other behaviours that constitute breach under the policy. If ICBC has advised you that you are in breach of your insurance policy, you should immediately seek legal counsel as there can be significant consequences. If you are found 100% at fault in your accident, Part 7 benefits is all you will be entitled to.
If you are injured as a result of a motor vehicle accident, you are not at fault (or at least not 100% at fault) and someone else is (or at least partly at fault), then in addition to accident benefits, you are also entitled to make a tort claim with ICBC. This is a much more comprehensive claim for damages and what most people think of when they are thinking “claim”. The types of damages you can claim for include: pain and suffering, past wage loss/loss of earning capacity, future wage loss/loss of earning capacity, special damages (out of pocket expenses), loss of housekeeping capacity, in-trust claims (for services of family and friends), future cost of care, etc. You do not have to suffer a permanent injury or an injury of a particular severity to be entitled to pursue a tort claim for compensation. The significance and impact of your injury will determine the amount of compensation you are entitled to. If you are injured as a result of an accident and you are not 100% at fault, it is advisable to seek legal advice. An initial consult with most personal injury lawyers is typically free of charge.
Now, sometimes you are not at fault, but ICBC takes the position that you are. In these cases, if you do not seek legal help or challenge this finding, you will be limited to the amount of compensation you can recover and your premiums will be affected. Do not let ICBC convince you that challenging a ticket or finding of liability is a waste of time, without seeking further advice. This is particularly true if you have been injured.
If the damage to the vehicles involved is minimal, ICBC will often deny a claim under its LVI (low velocity impact) policy. However, this is simply ICBC’s internal policy and it is not the law. Minimal damage to the vehicles involved does not mean that you do not have a personal injury claim. See my past article on LVI claims called: Minor Accident – Minor Injury?
If the accident is a hit and run, there are important steps you will need to take in order to pursue a claim. See my past article on hit and run cases called: ICBC Ought to Include a Warning. Also, if the other driver is not insured (has no driver’s license or his or her license has expired) or you have been hit by a drunk driver, you still have a claim.
Most personal injury claims have a two year limitation period. There can also be other time limits depending on the type of claim. As a result, it is wise to legal advice as soon as possible, despite any advice ICBC may give you to the contrary (see: ICBC Says I Don’t Need a Lawyer). Do you want to know if you have an ICBC claim? Call or email me: [email protected] – I would be happy to advise you free of charge.
*Important Note: The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.