Accident benefits to the detriment of the insured

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.