I read with dismay the 20 December 2019 CBC article: ICBC ‘deeply sorry’ for claiming West Shore Mountie was negligent when drunk driver hit and killed her (https://www.cbc.ca/news/canada/british-columbia/icbc-apologizes-for-negligence-claim-1.5405662).
One may wonder, ICBC how could you! Beyond the apology it’s worthwhile unpacking what actually happened here so that the Becketts, and others who find themselves in this situation, may at least see why this happened to them; and for people with the power to enact change, to think about how they can minimize the likelihood of similar, future occurrences.
Let’s start with the facts as reported:
- Beckett was killed when her vehicle was in collision with a vehicle driven by Fenton.
- Fenton pled guilty to impaired driving causing death and dangerous driving causing death.
- Beckett’s surviving family has a right to claim for economic loss against Fenton and did so.
Normally, under the terms of Fenton’s liability coverage, ICBC is contractually obligated to expeditiously defend Fenton against the claims made in the law suit launched by Beckett’s family and to appropriately pay claims on his behalf. However, Fenton’s Criminal Code convictions violate the terms of his coverage.
While ICBC must still conduct the legal defense and pay claims legally established against Fenton (on behalf of all victims, thank you tort system for the doctrine of Absolute Liability), ICBC now has the right to recover from Fenton any monies eventually paid on his behalf.
The plaintiff files a Notice of Claim. ICBC files a Response. These two documents together provide the foundation for the law suit.
Typically, it’s very difficult for either party to amend these documents (i.e. add new categories of claim or put forward new avenues of defense). To ensure that they remain relevant, often over years, an ‘everything but the kitchen sink’ approach is routinely taken.
The Notice usually outlines a list of potential losses that often are more broadly based than the facts as they are known at the time of filing. In the same vein, the Response usually stipulates all possible defenses.
ICBC may not simply sacrifice Fenton’s interests in favour of its own even though it might be easier and/or less costly (thank you again tort system, this time on behalf of tortfeasors everywhere, for the doctrine of Utmost Good Faith).
Eventually the garbage is jettisoned as resolution is attained, either by way of negotiation or trial.
ICBC has thousands of employees that must contend with tens of thousands of law suits. To handle the volume it develops broad brush policy, the application of which is a term of employee performance. Policy dictates the boiler plate is incorporated into the Response.
From the personal experience of the Beckett family this is both unfair and egregious. From the institutional perspective of a massive liability insurer, compliance with its legal obligations is assured. There is provision for exceptions to general policy where an assessment of an individual situation indicates the potential for a more cost effective and humane operational response. This wasn’t done initially for reasons not explained in the article. It seems it will be now.
Beyond the heartbreak and the apology, what is clear is that the more ICBC relies on policy, as opposed to individual file risk assessment, the more likely situations like this will arise, and the more isolated ICBC becomes from the community it serves.
It is here that Mr. Eby and Mr. Horgan have an opportunity to really do something useful for the citizens of BC. Instead of unhelpful, politically motivated name calling (i.e. ‘dumpster fire’) and ivory tower musings of wholesale change, they need to do the harder, less glorious work of unwinding past mistakes so that ICBC can become more in tune with its purpose and the community it is here to serve.