If you are handling your own ICBC injury claim you may be in the position where ICBC has made you a settlement offer. The question is should you accept?
In many cases, the short answer is probably “No”.
The slightly longer answer is probably “No, and you should always get legal advice from an experienced personal injury lawyer before you consider a settlement offer from ICBC.”
In a tort claim*, until a court orders ICBC to pay you damages for your pain and suffering, ICBC is under no legal obligation to pay you anything. Tort damages are not to be confused with “no-fault” benefits, which are nominal benefits to which you may be entitled regardless of who caused the accident, and which may be offset later by any tort damages you are awarded.)
When ICBC makes you an offer it is asking you to accept money now in exchange for you forever giving up your right to take your case to court and have the value of your damages decided by an independent judge. Your right to have your day in court is valuable: retaining it is your leverage against the possibility of settling for an insufficient amount. If you are going to negotiate away your right to sue, you should take steps to be sure that what you get in return is fair.
A personal injury settlement is like any other negotiation between parties with opposing interests. In this case, ICBC’s primary interest is in paying out as little as possible. This often conflicts with the interests of an injured person who may need a larger amount to cover the cost of things like lost earnings and future care. Make no mistake; ICBC is a sophisticated party that knows how to bargain. You can almost always expect the first offer ICBC makes to be below its ceiling and subject to further negotiation.
If you are injured in a motor vehicle accident caused by an ICBC insured driver (and most drivers in BC are), ICBC has a legal obligation to defend that driver against any claim you may make despite the fact that you are also likely an ICBC insured. This mind-bending situation is the reason why some people refer to ICBC as being in a conflict of interest. ICBC will use its talented team of adjusters, investigators, and defence lawyers to argue that its insured party is not legally liable, or not fully liable, for your accident or for the damages you suffered. Or, they will argue that any damages to which you may be entitled, as a result of the accident, should be as low as possible. Depending on the case, ICBC may also challenge the opinions of your doctors or hire surveillance firms to see how injured you appear on video. They may even check up on your social media activity to see if photos and comments you post undermine your claim that you have been injured.
By contrast, your personal injury lawyer works to protect your interests. Your lawyer’s job is to negotiate with ICBC and persuade them to provide you with as favourable a settlement as possible—and if ICBC refuses, then your lawyer will be willing to prosecute your case at trial to maximize your chances of obtaining adequate compensation.
You should be aware that determining the measure of damages is not an easy task. Almost invariably, ICBC lawyers and lawyers for plaintiffs will disagree on what damages are appropriate to compensate an injured person. The short answer is that you don’t need to rush to accept the first offer that ICBC makes. Consult a personal injury lawyer about your case and ask them to review your options. Those consultations are free and will give you the information you need to make smart decisions about your case.
A first offer that ICBC makes could be in the thousands of dollars and being offered money is always tempting. But are you sure that offer represents the true value of your claim? A personal injury lawyer can help you assess an offer to make sure it provides full compensation for your losses. For example, what if your injuries are still ongoing? The longer your symptoms last, the greater the damage award you can seek at trial for pain, suffering, and loss of enjoyment of life. In addition, soft tissue injuries can come and go, and you don’t want to accept an offer that is too low because you agreed to it too early or without seeking proper medical treatment. When you hire a personal injury lawyer he or she will make sure you get proper medical treatment and take steps to confirm with your healthcare provider that your condition has plateaued and a long term prognosis can be established before any settlement offers are considered.
Loss of enjoyment of life is not the only factor in evaluating your claim. What if your injuries prevent you from continuing in your chosen profession, or force you to accept a lower paying job? Or, what if your injuries prevent you from taking care of infant children, or force your family members and friends to help you take care of yourself and your household? You may be able to claim for all of these losses.
A: Discuss the offer with an experienced personal injury lawyer.
Don’t rush to accept the first offer ICBC makes. You are not obliged to let the other side dictate what your claim is worth. Take your time, get proper medical care for your injuries and let your personal injury lawyer deal with ICBC.
Your job is to get better. Our job, as plaintiff-only personal injury lawyers, is to get you the time and resources to maximize your recovery.
*A tort is a civil wrong committed by one person or persons that causes loss or harm to another person or persons that may result in a claim for monetary damages. For example, when an injured person sues the driver of a car that hit him the injured person is making a tort claim against the driver seeking monetary damages to compensate him for various losses he has suffered which might include things like lost wages, cost of future care, pain and suffering.
First Published on Sep 19, 2014.