ICBC Claims: The Process
If you are a motorist, passenger, cyclist, or pedestrian injured in an accident involving a vehicle licensed and insured in BC, you may be entitled to claim two different types of compensation:
ICBC Accident Benefits (sometimes called Part 7 Accident Benefits, “no-fault” benefits or recovery benefits); and
Damages or compensation for losses caused by the negligence of others (a tort claim).
If you are an injured driver or passenger of a vehicle licensed and insured in BC, you can claim “no-fault” benefits even if you are partly or fully responsible for the accident provided that you meet the conditions of insurance.
If the accident was not your fault (or only partly your fault) you can also claim damages that cover a number of things, including pain and suffering, lost wages (past and future), out of pocket losses, medical care and rehabilitation. If you were partly to blame the money value of the damages is reduced by the percentage you were at-fault. For example, if you were 25% to blame for the accident your damages (monetary compensation) would be reduced by 25%.
To secure your right to make a claim for Part 7 Accident Benefits and/or damages there are a number of steps you must complete and time limits that you must meet. Insurance (Vehicle) Act legislation and regulations require you to apply for Part 7 benefits within 90 days in order to preserve your right to claim those benefits. There are also time limits in making your claim to ICBC against the “at-fault” motorist. Some of those time limits are shorter depending on circumstances, so it is important to report your claim promptly to ICBC to ensure your rights are protected. Failure to do so could result in loss of those benefits, yet they may still be deducted from your claim against the “at-fault” party. What you say and sign at this time can be used against you at a later date (sometimes much later if your case goes to trial).
We strongly recommend that you call us at 1-855-852-5100 (toll free, 24 hours) for a free consultation about your case preferably before you talk with ICBC. However, even if you’ve already reported the accident and started dealing with ICBC, we can still help you.
We have extensive experience dealing with all different kinds of personal injury claims including Part 7 Accident Benefit claims and suing “at-fault” drivers for damages. The process is less stressful if you have someone who knows what has to be done to protect your rights and can anticipate the best strategy to get you a fair settlement.
The time it takes to resolve a personal injury claim varies. It depends on a variety of things, including what action ICBC and the defendant(s) take, court schedules and the decisions that you make.
Most personal injury lawsuits go through some basic steps. The following list is adapted from the Law Society of British Columbia’s explanation for the steps in a lawsuit and incorporates things we think should be done to help develop your case. It will give you a general idea of what to expect. Because every case is different, sometimes some steps are skipped while others might be repeated or can occur in a different order.
1. Report The Accident
To protect your rights to ICBC Part 7 Accident Benefits and the right to sue for damages, you must report the accident to ICBC by calling Dial-A-Claim as soon as possible (preferably within 24-48 hours). Dial-a-Claim is open 24 hours, 7 days a week.
Lower Mainland: 604-520-8222
Rest of BC or outside the province: 1-800-910-4222
2. Get Legal Advice About Your Case BEFORE You Talk With ICBC
You can call us at 1-855-852-5100 (toll free, 24 hours a day).
If, after getting some advice you decide to hire us, we may report the claim for you, file the necessary paperwork with ICBC and deal with ICBC on your behalf from then, or we will advise you on how to initially report the claim to ICBC and then we will handle the rest.
In cases where there is likely to be a dispute over liability, you have a complex medical history that includes pre-existing conditions, or your injuries are extensive it may be in your best interests not to deal with ICBC on your own at all. Talk to us first. We have handled thousands of ICBC accident claims and we’ll tell you what we think based on that experience.
If you do contact ICBC on your own take some time to gather the documents you will need and write down everything you want to tell them about the accident. The reason for this is that Dial-a-Claim staff may record what you tell them on an intake form which they forward to the ICBC adjuster assigned to your claim. The ICBC adjuster will use it to start assessing who was at-fault, whether Part 7 Accident Benefits and compensation may be payable for your injuries, and to prepare for speaking with you. That preparation includes determining how they can minimize the amount of money they have to pay out to you.
If you leave out important information (even by honest mistake) or you are not completely accurate about your injuries ICBC may use the information on your initial report against you in a liability determination, to argue that you are in breach of your insurance policy, or that you either did not sustain any injuries or you are fabricating information about your injuries (if, for example, you forget to tell the Dial-a-Claim staff about an injury). The best thing to do is get legal advice first, and be as honest and accurate as possible with the information you provide to ICBC.
Dial-a-Claim staff will ask you for general insurance information, vehicle information and vehicle driver and owner information. They will also ask you for details about the accident and whether you suffered any injuries. Specifically they will ask you for:
Your licence plate number;
When and where the accident happened; and
The licence number of the person driving your vehicle when the accident occurred;
Licence plate and driver’s licence numbers of other vehicles involved in the accident;
Whether you were injured and the nature of your injuries.
Next, Dial-a-Claim staff will advise you that your file will be assigned to an injury adjuster who will contact you. When that adjuster calls, you may be asked for information that you are not obligated to provide. Speak with us first to ensure your case is presented in the best way possible. Rather than risk setting a negative tone with ICBC, simply advise the adjuster you need to see your doctor before speaking to the adjuster, to give yourself time to get legal advice and to see your own doctor if you have not done so. It is perfectly reasonable for you to take the position that you want to see your own doctor before you speak with the adjuster so that you can be sure you are providing them with full and accurate information about your injuries. The last thing you want is ICBC deciding you could not have been seriously injured because you didn’t make seeking medical attention a priority or that you are responsible for aggravating your injuries because you failed to seek treatment.
IMPORTANT: Don’t leave getting legal advice to the last minute. You will need a chance to think about what we tell you and decide whether you want to have us represent you.
After talking to us about your case, you may decide you want us to help you prepare to speak with an ICBC adjuster or we may advise that we take over acting on your behalf in all further dealings with ICBC. If you decide to hire us, we will go over our Contingency Fee Agreement, which sets out what we will do for you, your role and responsibilities and the amount of our fee which is a percentage of the compensation we get for you after your case is concluded (either through a settlement or after a trial). No retainer (upfront money) is required and our office will handle the disbursements required to start and prosecute your case.
3. Seek Medical Attention As Soon As Possible
IMPORTANT: Get assessed by your doctor as soon as possible after the accident. It is critical that your injuries be independently documented by a medical professional. Some injury symptoms (e.g., internal bleeding, whiplash or lung injuries) don’t show up right away. Therefore, it is always in your best interests both medically and legally to seek medical help as soon as possible. If you can’t get in to see your own doctor, go to a walk-in-clinic or an emergency room and get assessed. In the meantime, call you doctor’s office and set up the first available appointment they have. Then, if you haven’t yet talked to a lawyer, at least you can confirm at the Dial-a-Claim stage that you have independent medical documentation of your injuries and that you are making every effort to seek ongoing treatment. Establishing a pattern of ongoing medical treatment also reduces the possibility of any argument by ICBC that you were not injured or that your injuries are the result of some intervening event (not the accident).
4. Apply For Part 7 Accident Benefits And Suing The At-Fault Driver For Damages
There are various time limits that apply in making your claim against the “at-fault” driver, depending on the situation. Therefore it is essential that you contact Dial-A-Claim to report your claim promptly.
If ICBC requests a written statement, we will help prepare that written statement. With your help, we start by gathering all the available facts and medical evidence about your accident. We take care of filing the written notice as necessary and then we prepare and file your Accident Benefits claim. Our office will handle any disbursements (expenses) and in most cases we will be able to collect most types of disbursements from ICBC as part of your settlement
5. Gather Facts And Evidence And Review The Law (On-Going)
With your help and at different times we will gather the facts concerning your claim which may include interviewing and taking statements from witnesses, possibly hiring experts to help establish liability or quantum (amount) of damages, consulting with medical specialists to determine the extent of your injuries and reviewing how the law applies to the particular facts in your case.
6. Start a Lawsuit To Preserve Your Rights
While you have 2 years from the date of the accident to start a lawsuit for damages against an at-fault driver and 2 years to sue ICBC if they refuse to pay or stop paying Accident Benefits, it may be advisable to start a lawsuit early to preserve your rights and to encourage productive and fair settlement negotiations, keeping open the option of trial. Settlement negotiations can take place at any time up to a trial but you cannot rely on them to produce a satisfactory result in all cases, so we prefer to manage your case as if it will end up in court.
Starting a lawsuit requires preparing the necessary court documents and filing them in court. This means the court registry will date stamp them, file one copy with the court as an official record and provide copies that must be served on the defendant(s). This step establishes that you have filed your lawsuit in time to meet any statutory or contractual deadlines. One copy of the documents is then delivered to the defendant (or the defendant’s lawyer). This step involves filing and delivery fees. If we take your case we fund this for you and wait to collect the amount from your compensation once your case is concluded. In some circumstances, and depending on the financial size of the award in your case, the Supreme Court Rules require that ICBC refund some or all of the disbursements that were required to bring the case forward.
7. Exchange Documents With ICBC
The next step is an exchange of documents and information with ICBC. Both parties need disclosure of information to assess your claim. Our role at this stage is to advise what documents and information are relevant and what is privileged and should not be disclosed. During a personal injury claim there is generally an ongoing exchange of documents as further reports and medical information become available. This is intended to help the negotiation process. Once we know what position ICBC intends to take we can formulate a strategy that is in your best interests.
During this time there are a number of other things that may happen. We may need to go to court on interim applications that we make or to respond to interim applications that the defendant makes (the defendant in most cases is represented by ICBC defense lawyers). Interim applications address how a case is to be handled. For example, we might ask the court to order the defendant to disclose documents that we have requested but they have not provided.
8. Examinations For Discovery And Expert Assessments
At some point after gathering all the facts and before the trial date we, or the defendant’s lawyer, will schedule an Examination for Discovery. This is an out of court meeting (the judge is not present) where both sides have the opportunity to ask the other party questions, under oath, about the accident. We will also ask the defendant to show us all relevant documents the defendant has, and to tell us about all relevant documents he or she has ever had or had access to. In return, the defendant’s lawyer is allowed to question you about the accident and the injuries you have suffered. We will be there with you to make sure you are not asked to answer inappropriate questions. We will also give the defendant’s lawyer copies of the documents we have that relate to the lawsuit and you will be asked to describe all relevant documents you once had or had access to.
You may be required to attend additional medical and occupational assessments to gather recommendations about your future treatment or abilities. ICBC is entitled to request that you attend an Independent Medical Examination and if your injuries are preventing you from working you may have to attend a Functional Capacity Assessment.
9. Negotiation (Occurs at Different Times And May Happen More Than Once)
If it is appropriate, we will talk to the defendant’s lawyers to see if they will settle the claim. A settlement is an agreement between the parties to a lawsuit (you and the defendant(s)) which sets out how they will resolve the claim. We will discuss settlement offers and tell you whether we think they are appropriate in the circumstances and let you decide whether to accept. If you accept a settlement offer and the claim is settled, the case does not go to trial but you are not permitted to “re-sue” if you change your mind down the road or it turns out the compensation you agreed to doesn’t meet your needs. Therefore, it is very important that you review any settlement offers and agreements carefully and get legal advice before you sign any releases or settlement documents to make sure adequate compensation is being provided. Experienced personal injury lawyers commonly review settlement offers and can walk you through the pros and cons of the offer that is made to you so that you can make an informed decision.
10. Prepare For Trial And Trial
If settlement is not possible, we prepare your case for trial, which includes getting all the necessary documents together, arranging for witnesses to attend, preparing legal opinions and arguments, and taking care of all the procedural matters involved in going to court.
If your case goes to court, we will appear on your behalf and represent you during the trial. After the judge has decided the case, which can take from a few days to a few weeks after the trial, we prepare a court order for the judge to sign that describes the decision (including the compensation awarded).
11. Completing The Claim