To Pay or Not Pay: Subrogation Liens Arising Out of a British Columbia, MVA

The next time you assist an American citizen involved in a motor vehicle accident that occurred in British Columbia, you should note that PIP liens are not recoverable in British Columbia.

Say you manage to settle a client’s BC mva claim for $25,000 all inclusive, with a subrogation lien of $5,000 by your client’s PIP insurer; the insurer is not entitled to recover the PIP benefits they paid to your client.

In British Columbia, the deemed release provisions contained in s. 83 of the Insurance (Vehicle) Act state that an out-of province insurer may not recover through the courts in British Columbia accident benefits it has paid.

Out-of-province insurers can have no greater rights than the person who obtained those benefits, and the insured is deemed to have released the claim to the extent of those benefits.

See Schaffer v. McPherson (1997), I C.C.L.I (3d) 88 (B.C.S.C.), and Matilda v. MacLeod (1997), I.C.C.L.I (3d) 94 (B.C.S.C.), both affirmed on appeal 2000 BCCA 1. A deemed release applies whenever the accident benefits paid by the out-of-province insurer are provided under a contract or plan of automobile insurance and are similar to the benefits paid under the appropriate Regulation in British Columbia. See Gurniak (Guardian ad litem of) v. Nordquist, 2003 SCC 59.

So the next time you settle a claim that happened in British Columbia, you can save your client from surrendering thousands of dollars of their own money and protect yourself from a potential malpractice claim.

With Everything Today Settled Online, Do I really Need A Lawyer?

With Everything Today Settled Online, Do I really Need A Lawyer? seattle injury lawyerWhy do I need a lawyer to deal with a serious personal injury claim?
When you’ve been injured, the party responsible for your injuries often carries insurance to cover some or all of the damages you have suffered. However, an insurance company’s primary goal is to maximize its profitability by minimizing the amounts it pays out in claims. Insurance adjusters are professionals – and they’re skilled at undervaluing the claims of injured people for their company’s benefit. You can choose to settle a wrongful claim on your own – but you may end up settling your case for a fraction of its true value. Hiring the right lawyer levels the playing field between you and the insurer, and ensures that you receive compensation for the full value of your claim.

This is particularly true in the following situations:
– Wrongful Death

– Catastrophic Injuries

– Medical Malpractice

– Defective Products

Do I need a personal injury lawyer with “foreign” legal experience?
When cases implicate the laws of more than one province, or states south of the border, you need a lawyer familiar with handling complex cross-border cases to ensure that your case is competently handled from start to finish. The interplay of laws between provinces and between countries demands a specific skill set most lawyers will never glean from a lifetime of domestic cases.

What makes the Cross Border Law approach unique?
At Cross Border Law, we handle death, injury, medical malpractice and product claims for Canadians in the U.S., and for Americans in Canada. As lawyers who focus their practice on complex cross-border litigation, we’re fully aware of the subtle nuances between American and Canadian law, and put our knowledge to work to maximize your recovery. We prepare your case for trial, not for settlement. While most cases eventually settle before trial, we believe that thorough preparation for trial is the best way to maximize the value of your case. If the insurer seeks to settle on your terms, we’ll always listen. If not, we are fully prepared to “go the distance” and take your case to the courtroom. We believe a trial-focused approach is sound in principle, and delivers results in practice. See our Results for examples of how some of our past clients have benefited from this approach.

Can I afford a personal injury lawyer?
We typically handle cases on a contingency basis. We are paid a portion of the total recovery, and not until you recover. While you are ultimately responsible for disbursements or litigation expenses, we are prepared to advance the necessary sums to prove your case. We are pleased to offer a free initial consultation to give us an opportunity to explain how we might assist you.

To get help with your case right away simply fill in the free no-obligation consultation form below or call us at 604-742-4242 now.

Negligence and Strict Liability: True BURDENS OF PROOF

icbc insurance claims vancouver bc
3d image Compensation issues concept word cloud background

In every civil case, the plaintiff has the burden of proving the basic elements of negligence—duty, breach, causation and damages—and such proof is required by “a preponderance of the evidence”. This is defined as “more probable than not” or “more likely true than not true” or “on a 51% basis”. The reality is that a plaintiff must be prepared to show proof on a much more significant basis than 51%, as a juror is unlikely to award significant damages without substantial proof of injury and loss.

However, there are some cases that impose a different burden on a plaintiff—notably Products Liability cases in the US are governed by Strict Liability. In such cases, a plaintiff who was injured by a defective product must prove that the product was defective. Once the product is shown to have been manufactured defectively, the defendant manufacturer is liable, period. If, for example, a family is driving down the road and one of the tires on the vehicle suffers a sudden loss of air or “blowout”. The vehicle flips, passengers are ejected and all suffer serious personal injuries and losses. At trial, the injured parties must prove that the blown out tire was manufactured defectively, and once proven, their burden stops there. The manufacturer of the defective tire is then liable for any damages that are proven.

In BC, a plaintiff’s burden of proof for a defective products case is much more onerous. There a plaintiff must prove that the defendant manufacturer was negligent in the way it designed or manufactured the product. This is a significant burden and good reason why there are very few products cases that proceed to judgment in British Columbia.

What Cross Border Law Learned From Todd Bertuzzi and the Oregon Bus Crash?

Remember Steve Moore vs. Todd Bertuzzi, originally filed in Colorado State court? That case tells us a lot about what NOT to do when contemplating a lawsuit between parties of different jurisdictions. These lessons are also instructive for potential litigation arising out of the tragic December 30th Oregon bus crash which killed and injured many Canadians and Koreans.

The simplest lesson is this–Don’t file a lawsuit until you’ve determined which jurisdiction’s laws provide the most favourable outcome, both in terms of proving liability and maximizing damages. When courts consider whether plaintiffs chose the wrong forum, and dismiss suits to other jurisdictions, these plaintiffs get stigmatized as “forum shoppers.” When that same analysis is considered prior to filing, to consciously decide the most appropriate court in which to do so, it’s considered good lawyering.

Steve Moore apparently didn’t realize that Colorado’s Citizens’ Access to Colorado’s Courts Act, §13-20-1001, et seq. required that he be a resident of Colorado, and not Thornhill, Ontario, in order to proceed with a case there. Noting that British Columbia provided a more appropriate forum, since all of the defendants either resided or did business here, the Colorado Court declined to find personal jurisdiction over Bertuzzi, Orca Bay, Marc Crawford or Brian Burke, and ordered Moore to pay costs for their defense. Rather than heeding that court’s suggestion (and probably assuming that he’d be denied a fair trial in Canucks country), Moore proceeded to file in Ontario, alleging that the Ontario Court had appropriate jurisdiction since Moore’s parents watched the hit on TV in Ontario and suffered nervous shock there. As of this writing, the Ontario Court has yet to rule on that case.

Over the past two weeks, we’ve read that four people injured in the Oregon bus crash have now filed suit, just weeks after the crash–two Korean students in Washington having filed there and two BC residents having filed here. I’m left asking “Why?”. Sure, BC and Washington both have some connection to the parties in the case, but only Oregon is ideal from both a liability and damages perspective. Washington State law does not allow for punitive damages. BC compensatory damages are subject to the cap on non-economic claims, as controlled by the Andrews trilogy, as well as conservative judges. Moreover, BC products liability claims are subject to a negligence standard as opposed to the more favourable strict liability theory available in the US. Most importantly, neither Washington nor BC have personal jurisdiction over one of the more critical parties to the case—the Oregon State Department of Transportation.

Let’s examine what we know so far about the crash. Nine people killed. 39 others injured. A BC bus company operating a tour through Southern California on a 1998 Prevost bus not equipped with seatbelts. The driver allegedly driving for longer periods than he was allowed to drive under the law. Whether or not that is so, his actions in steering the bus surely imply that he was negligent, and therefore, a foregone conclusion that the driver’s insurance will be exhausted. It will be further alleged that the bus company is vicariously liable for the negligence of its employee, and perhaps a further conclusion that its fleet of buses and the insurance umbrella covering that fleet will be exhausted.

So imagine you’re one of the people injured in this crash, incurring medical expenses, unable to work, and interested in receiving compensation for your losses. How many other claims will you be competing with? Even with $10 million in company insurance, how much will that leave per claim? And consider that nine people were killed. Unlike in BC, wrongful death claims in Oregon allow the decedent’s estate to recover the decedent’s entire future lifetime earnings, subtracting the amount they would have consumed—in most cases, this represents at least a million dollar claim. For a high wage earner, it could be four times that. It should be obvious that there will be insufficient insurance and assets to satisfy all of the injury and death claims.

Or will there? Not to say that the driver and the bus company aren’t to blame, but how does a bus roll down a steep embankment on an icy stretch of highway known as “Deadman’s Pass”? Presumably, the State of Oregon is aware that this highway becomes treacherous in the winter, that buses and cars tend to fishtail, that it’s reasonably foreseeable that a vehicle will hit a guardrail there. (Why was a guardrail there in the first place?) So why wasn’t a guardrail erected by the State that was fit for its intended purpose? Viewed with these questions in mind, this tragedy was preventable. And the Oregon Department of Transportation cannot be sued in Washington, nor in BC. Victims seeking compensation would be wise to sue in Oregon. I will be doing so for my BC clients.

I guess we’ll wait to see what the Ontario Court says about Mr. Moore’s claim. But by my way of thinking, that whole incident was precipitated by the NHL’s fighting rules, which discouraged retaliation in the immediate aftermath of the Naslund hit during the clubs’ previous meeting. Evaluating that case before it was filed, one would learn that those rules were promulgated in New York, where the NHL “resides”, a jurisdiction which allows for punitive damages and has no cap on pain and suffering. Mr. Moore sued Bertuzzi, Crawford, Burke and Orca Bay in Ontario, a jurisdiction with a spurious connection to any of these defendants. Why not add the NHL and sue in New York Federal Court? Unfortunately, doing so now might be less advantageous, since Mr. Moore could be seen as a forum shopper.

Defining UMP or UIM (Underinsured Motorist Protection) Primer for ICBC-Insured Drivers and Passengers

On behalf of Cross Border Law posted in UMP on Tuesday, April 22, 2014.

One hears a lot about Canada’s socialized-medicine program, but what about socialized-auto insurance? For better or for worse, Canadian auto insurance is handled Province by Province, and the “basic” or mandatory minimum insurance, at least for the Western Provinces, is entirely socialized. The Insurance Corporation of British Columbia (“ICBC”) provides the following insurance package for all licensed British Columbia drivers, all members of their household and all passengers in their vehicle:

  1. $200,000 in third party auto liability;
  2. $150,000 in PIP or no-fault medical and rehab expenses; and
  3. $1,000,000 in UIM or “UMP”.

$1,000,000 in UIM. You read that correctly. Including attorneys’ fees and litigation expenses. You read that correctly.

ICBC tells us that their insured drivers and passengers have been involved in crashes over the past ten years in every single US state and the District of Columbia. We’re talking only about residents of British Columbia. Not every one of them results in a UIM claim, but consider that most states’ mandatory minimums are a lot less than $200,000 per accident. So how does the typical injury victim receive proper compensation for his or her injury in the US? Of course, they don’t. Your policy-limits settlements attest to that.

This article is intended as a primer for attorneys in the US to ensure that they maximize the recovery for their BC clients injured down there.

Seek ICBC’s consent before you accept a policy limits settlement!

When an accident occurs outside of the Province, ยง148.2(6) of the Regulations promulgated pursuant to British Columbia’s Insurance (Vehicle) Act defines the rights and responsibilities of ICBC-insured drivers and passengers who wish to pursue a UIM claim, commonly referred to as “UMP”. Liability issues, including claims for contributory negligence, are to be determined by the laws of the jurisdiction in which the accident occurred, while “quantum of damages” is to be determined by the laws of British Columbia. “Causation”, surprisingly, has been found to fall under the latter category, even though this is one of four elements which commonly comprise “liability” for a negligence claim (duty, breach, causation and the fact that damages occurred or loss was suffered).

Importantly, one must not accept a tort settlement and dismiss a tortfeasor unless and until the UMP claim has been perfected. The only two ways that the UMP claim can be perfected are by judgment in excess of policy limits or ICBC’s consent to a policy limits settlement. Until then, there cannot be a determination that the defendant was in fact “underinsured.” As Mr. Justice Finch stated in Beauchamp v. ICBC (2005) B.C.C.A. 507:

  1. “Arbitration is not available until it is shown that the person claiming is an “insured”, and is claiming in relation to an accident with an “underinsured” motorist”. The definition of “underinsured motorist”, set out above, contains three elements, A person falls within the definition if he or she: (1) is the owner or operator of a vehicle; (2) is legally liable for the injury or death of an Insured; and (3) is unable to pay the full amount of the Insured’s damages.
  2. Until those facts are either determined by judicial decision, or by admissions, there is no “underinsured motorist” and the arbitration provisions of the Regulations cannot be engaged.”

What is the limitation for bringing such claims?

The limitation for bringing straight negligence claims in British Columbia is two years from the date of the accident. However, since there can be no determination that a defendant driver is “underinsured” until one of the two determinations above has occurred, the limitation period cannot begin to run until that time. Thereafter, the limitation period is arguably six years for breach of a written (insurance) contract. There is no case law defeating an UMP claim in British Columbia on the basis of a limitation defense.

How does one commence such a claim?

The UMP legislation actually requires the Claimant or his/her counsel to negotiate a settlement of the UMP claim first. If the parties are unable to agree on an amount, the Claimant is at liberty to file a Notice to Arbitrate with the British Columbia International Commercial Arbitration Centre (“BCICAC”) and paying the proper fee. The full process is outlined here:

How does one recover attorneys’ fees and litigation expenses?

British Columbia is a “loser pays costs” jurisdiction, whereby the victor in any litigation can recover a portion of the legal fees and all reasonable litigation expenses from the loser. The amount of the attorneys’ fees contribution is calculated by reference to a schedule in the Court Rules. An UMP arbitrator may not award the full amount of a party’s fees, but is granted wide discretion to award a sum of money which may represent a significant portion of the total fees plus all reasonable expenses including expert reports and testifying fees, deposition costs, costs of producing records and the arbitrator’s fees.

The Preservation of Joint and Several Liability for Bad Faith Involving Multiple Defendants

Advisory support

When a claim is made against a defendant driver with minimum insurance limits, this reality poses a risk for a badly injured plaintiff, who, at least in British Columbia, is fortunately able to access his or her own underinsurance up to a minimum of $1,000,000 per person. But access to one’s own underinsurance does not preclude a separate potential action against the defendant’s insurer for bad faith.

Insurers owe their clients (defendants) a duty to protect their personal assets from the risk of an excess judgment, and to make reasonable efforts to settle a claim within the policy limits of available insurance if it is possible to do so. Should the insurers value their desire to save money over the risk the case poses to the defendant’s assets, the insurer might commit “bad faith” against the defendant, such that they would be liable for an excess judgment beyond the policy limits – a source whose availability is unlikely to be impaired by bankruptcy, fraudulent attempts to conceal assets, or a general inability to pay.

The following is admittedly a complicated blog entry, and most of our readers should stop here. If you’re a lawyer considering this issue, read on. It’s in fact taken from our own research in trying to solve the predicament of this entry’s title-Preserving Joint and Several Liability for Bad Faith involving Multiple Defendants.


Washington law recognizes a host of duties that an insurer must fulfill to its insureds. Some of these duties are contained in laws passed by the Washington legislature, while others have developed from “common law” judicial precedents. For example, Tank v. State Farm Insurance Co., 105 Wn.2d 381 (1986) established the general rule that an insurer must refrain from engaging in any action that demonstrates a greater concern for the insurer’s monetary interest than the insured’s financial risk. This principle has been interpreted to include situations where an insurer was presented with an opportunity to settle a case posing great risk to the insured’s personal assets for a sum within the policy limits, but declines to do so. If the facts later illustrate that the insurer ignored clear evidence of the risks posed to the insured, the insurer may later be found liable for paying the entire judgment, including the portion in excess of the policy limits. See Evans v. Continental Causalty Co., 40 Wn.2d 614 (1952); see also Besel v. Viking Insurance Co. of Wisconsin, 146 Wn.2d 730 (2002).

The Besel case provides a strategy for maximizing an insurer’s risk, and involves three basic steps:

(1) entry of a consent judgment for the “fair value” of the claim;

(2) execution of covenants not to execute against the defendants beyond the limits of their available insurance; and

(3) assignment of the defendants’ collective bad faith rights to the claimants.

Under RCW 4.22.060, the court is required to conduct a reasonableness hearing to ensure the amount of the settlement was supportable by the circumstances, and not the product of fraud or collusion.

Besel stands for the proposition that the difference between the insurance limits and the value of the settlement approved by a court through RCW 4.22.060 sets the benchmark for evaluating the damages suffered by the insured (or their assignee) in the subsequent bad faith litigation. Besel also rejects the notion that the insured suffered no harm from the insurer’s conduct by virtue of the covenant not to execute. Finally, Besel establishes that the insured has the right to settle a claim on its own behalf, irrespective of any “consent to settle” or “cooperation” clauses in the insurance agreement, if the insurer has acted with negligence or bad faith in refusing to settle the claim for the policy limits (or less).

Unfortunately, there’s no provision in the caselaw under RCW 4.22.060 for allocating fault amongst the parties. Indeed, Price v. Kitsap Transit stands for the proposition that the judge’s authority in a reasonableness hearing is limited to evaluating the fairness of the settlement amount and nothing more.

A “perfect scenario” for resolving a case against multiple defendants would be the entry of a consent judgment which allocates fault…..and then an acceptance of that allocation, with preservation of joint and several liability against any insurer whose conduct led to an inability to settle within the policy limits. However, a settlement executed under RCW 4.22.060 expressly extinguishes any right of contribution between settling and non-settling defendants. If contribution has been extinguished, joint and several liability seems patently unfair. The insurers will undoubtedly argue that joint and several liability does not just “carry over” from the tort litigation to the bad faith litigation.

The problem is one of fundamental fairness for the insurer. If the reasonableness inquiry isn’t broad enough to permit a binding allocation of fault, what inquiry might be? It seems clear that if one seeks to bind defendants to an allocation of fault by way of the settlement process, one would need to propose another method alongside the reasonableness hearing for doing so.

Does RCW 4.60 offer a Solution?

There may be a way to accomplish a binding allocation of fault which has been approved by the court for fairness. RCW 4.60 deals with “judgments by confession”, a species of consent decree which appears to have been (1) usually used in the context of property disputes, and (2) not the source of much reported case law for the last 75 years. Still, the statutes are on the books, so they have to mean something – and they might be used to fill the gaps in the reasonableness hearing process.

Take a quick look at these short statutes:

RCW 4.60.010 authorizes the use of these judgments, without limitation to type of action.

RCW 4.60.060 requires every judgment by confession to include a written statement by the defendant which states the amount owing to the plaintiff and a concise statement of the facts supporting the indebtedness, and a recitation of why the debt is “justly due”.

RCW 4.60.070 suggests that the court must evaluate the writing supporting a judgment by confession for sufficiency before agreeing to enter the stipulated judgment. Upon entry, a judgment by confession operates the same as any other judgment.

Arguably, any Besel style settlement could be submitted to the court for review under both RCW 4.22.060 and RCW 4.60 et. seq. The reasonableness hearing, addressing whether the dollar amount is fair and not the product of collusion, is more of a damages inquiry with some limited evaluation of liability. The judgment by confession would be supported by a statement of facts supporting the allocation of fault between the parties, and could be used to focus squarely on the evidence in favor of the liability breakdown. Presumably, the court could conduct some limited evidentiary inquiry into liability pursuant to its authority to evaluate the sufficiency of the writing supporting the confession judgment. The Claimant wants the court to do this – because the more the court does to establish the propriety of the Claimant’s allocation of fault, the less likely the insurers will be able to collaterally attack it in a subsequent bad faith suit.

The use of the “confession by judgment” statute to “plug the holes” in RCW 4.22.060 is a novel approach. There may be other, simpler ways of obtaining a binding allocation of fault between multiple defendants in the context of a consent decree. Apparently, no one has attempted to completely settle a case with multiple co-defendants and allocate fault through the use of a consent judgment and had their case go up on appeal. The judgment by confession statute may at least provides a solution to offer a judge should one get to the point where judicial approval is required for a settlement.

British Columbia Man Pleads Guilty In Car Accident Case

A man who pleaded guilty to a hit-and-run car accident that killed a 25-year-old woman in Vancouver in March has begun his sentencing process. British Columbia residents may remember coverage of the car accident that has since been attributed to reckless driving. The proceedings were adjourned initially because nearly 50 of the woman’s friends and family made appearances to view the sentencing.

The accident report from March 9 states that around 11:30 p.m. the woman’s vehicle was T-boned by another car traveling at a high rate of speed. The driver of that vehicle, a 26-year-old man with a long history of criminal activity, fled the scene on foot along with his passenger. He was arrested several days later at a motel in Creston and charged with dangerous driving causing death and leaving the scene of a fatal accident.

2 Dead In Car Accident In British Columbia

Two people have been tragically killed in a head-on car crash in Surrey, according to local sources. British Columbia authorities responded to the fatal car accident that claimed the lives of two drivers. At the moment, they are still piecing together how the accident happened. 

Details about the accident are sparse as of this report, but it has been confirmed that the accident took place around 7:30 a.m. the morning of Nov. 20. It appears both vehicles collided head-on, though it is not yet clear whether one of the drivers was traveling in the wrong lane. The impact was severe enough that traffic was stopped both ways for most of the day.

British Columbia Man Charged In Fatal Car Accident

Charges have been filed pertaining to a fatal accident that led to the death of a 68-year-old man back in 2015. British Columbia police believe the fatal car accident may have been the result of the other driver behaving recklessly. The 35-year-old now faces charges of dangerous driving causing death. No court date has been announced at this time. 

According to the accident report, the 68-year-old man was making a legal left-hand turn around 9 a.m. the morning of Nov. 14 when the accident occurred. The other vehicle, which police believe was travelling at nearly 150 km/h at the time of the crash, smashed into the side of his vehicle. The force of the impact seriously damaged both vehicles.