Insurance Law Blog
Knowledge Centre

Accident benefits to the detriment of the insured

September 14, 2021

Insurance law – Automobile insurance – Statutory Accident Benefits Schedule – Deductible – Future benefits

Rix v. Koch, [2021] B.C.J. No. 1710, 2021 BCSC 1526, British Columbia Supreme Court, August 5, 2021, D. MacDonald J.

Following trial in a motor-vehicle claim, the defendants applied post-trial to make deductions to the cost of future care award for amounts that were covered by the plaintiff’s Part 7 ICBC statutory accident benefits, under s. 83 of the Insurance (Vehicle) Act, RSBC 1996, c 231. The plaintiff argued that no deductions should be made for two reasons; first, because she was covered by an extended health benefits plan which was primary over her Part 7 benefits, and second, because there was uncertainty regarding ICBC’s financial health and ability to pay future benefits. The defendants submitted an affidavit from an ICBC adjuster committing to unconditionally pay for the awarded care items under Part 7.

The court approached deductions on an item-by-item basis. The court found that the plaintiff had unlimited coverage for medications under her benefits plan, but no coverage for Botox injection fees. The defendants argued that ICBC had waived the requirement under s. 88(6) of the Regulation that the plaintiff first exhaust her own insurance plans before seeking Part 7 benefits. However, the court found that ICBC’s adjuster’s affidavit did not go so far, as it made no reference to section 88(6) and there remained uncertainty regarding future payments. As the plaintiff was required to exhaust her own insurance before seeking Part 7 benefits, no deduction to the cost of future care award was made for Botox or other medications. The exception was for injection fees since they were not covered by the plaintiff’s extended health plan. An amount for ergonomic assessments was deducted, but only to the maximum payable by ICBC under Part 7 as it could not commit to paying more than the statutory maximum. No amount was deducted for ergonomic equipment as the equipment was for symptom maintenance, not rehabilitation, and ICBC could not waive the requirement that discretionary benefits are to promote rehabilitation. Finally, the court rejected the plaintiff’s argument that she should be awarded a present lump sum amount for future Part 7 benefits on the basis that there were concerns over ICBC’s financial future. There was no reason to deviate from the normal course of payments under the legislative scheme.

This case was digested by Joe Antifaev, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Joe Antifaev at [email protected].

To stay current with the new case law and emerging legal issues in this area, subscribe here.

Tags

Expertise

Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: September 14, 2021.

Related

New benchmark for damages for injury to dignity for sexual harassment
New benchmark for damages for injury to dignity for sexual harassment New benchmark for damages for injury to dignity for sexual harassment
Damages Awarded Under Intimate Images Act
Damages Awarded Under Intimate Images Act Damages Awarded Under Intimate Images Act
Retail Case Update: The Court’s View on Post-Accident Remedial Measures – Are They Determinative of Liability?
Retail Case Update: The Court’s View on Post-Accident Remedial Measures – Are They Determinative of Liability? Retail Case Update: The Court’s View on Post-Accident Remedial Measures – Are They Determinative of Liability? Retail Case Update: The Court’s View on Post-Accident Remedial Measures – Are They Determinative of Liability?
The Dangers of Two Step Offers
The Dangers of Two Step Offers The Dangers of Two Step Offers
Court says federal political parties are subject to BC privacy legislation
Court says federal political parties are subject to BC privacy legislation Court says federal political parties are subject to BC privacy legislation
Court Grants Interim Injunction to Restrain Employees from Competing with their Former Employer
Court Grants Interim Injunction to Restrain Employees from Competing with their Former Employer Court Grants Interim Injunction to Restrain Employees from Competing with their Former Employer
Harper Grey Lawyers complete Mental Health First Aid Certification
Harper Grey Lawyers complete Mental Health First Aid Certification
Defining the Scope of the Cost Recovery Action Under BC’s Environmental Management Act
Defining the Scope of the Cost Recovery Action Under BC’s Environmental Management Act Defining the Scope of the Cost Recovery Action Under BC’s Environmental Management Act Defining the Scope of the Cost Recovery Action Under BC’s Environmental Management Act
Roshni Veerapen elected as Vice Chair of the Health Law Section
Roshni Veerapen elected as Vice Chair of the Health Law Section Roshni Veerapen elected as Vice Chair of the Health Law Section
Court of Appeal finds insurer has duty to defend insured in claim arising from leak of liquid chlorine from its premises despite pollution liability exclusion
Court of Appeal finds insurer has duty to defend insured in claim arising from leak of liquid chlorine from its premises despite pollution liability exclusion Court of Appeal finds insurer has duty to defend insured in claim arising from leak of liquid chlorine from its premises despite pollution liability exclusion Court of Appeal finds insurer has duty to defend insured in claim arising from leak of liquid chlorine from its premises despite pollution liability exclusion
National Indigenous History Month
National Indigenous History Month
Emilie LeDuc appointed to the British Columbia Law Institute Board of Directors
Emilie LeDuc appointed to the British Columbia Law Institute Board of Directors Emilie LeDuc appointed to the British Columbia Law Institute Board of Directors
William Clark and Kara Hill present at the 2024 Self Governing Professions CLE
William Clark and Kara Hill present at the 2024 Self Governing Professions CLE William Clark and Kara Hill present at the 2024 Self Governing Professions CLE William Clark and Kara Hill present at the 2024 Self Governing Professions CLE
A party’s deliberate decision not to attend a hearing does not render that hearing procedurally unfair
A party’s deliberate decision not to attend a hearing does not render that hearing procedurally unfair A party’s deliberate decision not to attend a hearing does not render that hearing procedurally unfair
Harper Grey’s New Website Recognized by Hermes Creative Platinum Website Award
Harper Grey’s New Website Recognized by Hermes Creative Platinum Website Award
arrow icon

Subscribe