Driver takes ICBC to court to keep his safe drivers discount – and wins.

An interesting decision was released today by the British Columbia Provincial Court.  In this case, a driver was deemed by ICBC to be at fault for an accident that occurred when his vehicle struck a rock in the middle of the roadway.  ICBC made payments to an injured passenger, and repaired the vehicle, making both payments pursuant to the driver’s collision coverage, as opposed to paying “no-fault” benefits to the passenger, and paying out the repairs under his comprehensive insurance policy.   The upshot of ICBC’s determination,  was that the driver would lose his safe-driving discount, and would have to pay increased premiums.  He decided to fight this determination in court, and was successful.

In this case, Kett v. Insurance Corporation of BC, 2014 BCPC 173, the Court gave close consideration to the wording of the insurance policy pertains to the difference between collision coverage and comprehensive coverage:

[47]        The insurance policy defined the term “collision coverage” in Division 2 s. 2.3 as follows:

“Collision coverage” means coverage for loss or damage caused by upset or collision of a vehicle with another object, including, but not limited to

a)   the surface of the ground, the roadway being traveled on or an object on, in, under, over or adjacent to the roadway, including a road sign, guardrail, peer, bridge or culvert or any body of water or waterway under or adjacent to the pier, bridge, culvert or roadway,

b)   pedestrian as defined in part 3 of the Motor Vehicle Act,

c)   a vehicle attached to the vehicle, and

d)   cargo, including animals, carried in or on a commercial motor vehicle, the gross vehicle weight of which exceeds 5000 kg, or a commercial trailer, and includes coverage for loss or damage caused by collision with another object where the collision results from the presence on or adjacent to the roadway of a domestic or wild animal, either living or dead, but there is no impact with the animal.

[48]        The policy of insurance also defines the term “comprehensive coverage” in Division 2 at s. 2.3 as follows:

“comprehensive coverage” means coverage for loss or damage other than loss or damage to which collision coverage applies and includes coverage for loss or damage caused by missiles, falling or flying objects, lightning, fire, theft or attempted theft, earthquake, windstorm, hail, rising water, malicious mischief, riot or civil commotion or the stranding, sinking, burning, derailment, upset or collision of the conveyance in or on which a vehicle is being transported on land or water, vandalism and impact was a domestic or wild animal either living or dead. (Emphasis added)

The difference in the two coverages, as it relates to this claim, is that collision coverage applies to incidents where the vehicle collides with another object, like a wall, a tree, a vehicle, or a pedestrian, while the comprehensive coverage applies to falling or flying objects.  If the boulder was stationary on the road, and the driver was negligent in striking it, then the collision insurance would apply.  If the the boulder was in motion, and had rolled onto the road, the comprehensive coverage would apply.  The court determined as follows:

[77]        In determining whether Mr. Kett’s claim falls under collision coverage or comprehensive coverage, I must consider the specific facts of this case and decide whether or not the impact with the boulder was one which comes within the language of Mr. Kett’s policy of insurance. In the particular circumstances of Mr. Kett’s case, I am satisfied the accident falls within the scope of comprehensive coverage rather than collision coverage. I reach this conclusion because the boulder was still moving at the time of impact and had not yet come to rest. In other words, the “fall” of the rock had not yet been completed.

Was Mr. Kett negligent?

[78]        In light of my findings regarding Mr. Kett’s credibility, I do not accept ICBC’s submission that Mr. Kett was negligent and failed to keep a proper lookout. I accept his evidence that, at the time of the accident, he was driving below the speed limit. He acknowledged this was a road he had not traveled on before and therefore he was being cautious. He was also driving cautiously because it was dark. ICBC argued I should scrutinize Mr. Kett statements closely because they are self-serving statements designed to advance Mr. Kett’s claim. In this regard ICBC relied on the fact that Mr. Kett and Ms. Nguyen could not recall what they had been doing earlier in the day. In my view this is not significant. As noted, the significant event that day (which was approximately 4 years before the trial) was the accident. In the circumstances, it is understandable Mr. Kett recalls the details of the accident but not the details of what else happened earlier that day.

[79]        ICBC also argued that if this court finds the boulder was moving, the fact it traveled across the front of the vehicle before contact with the driver’s side suggests the boulder was visible for a longer period than testified to by Mr. Kett and was thus avoidable. I am not persuaded by ICBC’s argument in this regard. There is insufficient evidence to support its contention that the boulder was on the road long enough for Mr. Kett was seen it. Mr. Kett testified visibility was in the range of 100 to 200 metres. Both he and Ms. Nguyen testified that the boulder appeared suddenly. Mr. Kett also testified that although he had seen signs regarding the danger of falling rocks in some locations at an earlier point in time while he was driving, however, he did not see any near the location where the accident occurred. In the circumstances I am satisfied Mr. Kett was not negligent. I am satisfied he kept a proper lookout and maintained an appropriate speed.

It is not often that a party deemed to be at fault by ICBC will challenge the determination in court.   However, given that a safe driver’s discount can result in thousands of dollars in savings over the course of a few years, it may be worthwhile to bring an action similar to this one if you are wrongly deemed at fault by ICBC.

Image Credit: NCDOT Communications, https://www.flickr.com/photos/ncdot/681326563