Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, stripping a Plaintiff of post offer costs after receiving a jury award less than a pre-trial defence settlement offer.
In today’s case (Rutter v. Vadnais) the Plaintiff was injured and sued for damages. About 2 years prior to trial the Defendant offered to settle for $50,000. The offer was rejected and at trial a jury awarded global damages of $20,000.
The Court stripped the Plaintiff of costs from the time of the offer forward which would significantly impact the award given the costs of running the trial. In reaching this decision Madam Justice Brown provided the following reasons:
 Turning to the effect of the offers exchanged in this matter, Rule 9-1(5) and (6) provides:
(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:
(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;
(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;
(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;
(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.
[am. B.C. Reg. 119/2010, Sch. A, s. 21.]
Considerations of court
(6) In making an order under subrule (5), the court may consider the following:
(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;
(b) the relationship between the terms of settlement offered and the final judgment of the court;
(c) the relative financial circumstances of the parties;
(d) any other factor the court considers appropriate.
 The plaintiff in this case had strong medical opinions to support her position. The defence position was contrary to the weight of the medical evidence. Although the jury award is less than that offered by the defendant, I am not persuaded that the offer made was one that ought reasonably to have been accepted either on the date that the offer was delivered or any later date. As Madam Justice Adair said in Currie v. McKinnon, 2012 BCSC 1165 at para. 20: “While the purpose of the Rule is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order.”
 Second, while the amount recovered is less than the settlement offer, that is rarely a determinative factor, particularly as jury awards are more difficult to predict than judge assessments (Smagh v. Bumbrah, 2009 BCSC 623 at para. 13).
 The relative financial circumstances are also a neutral factor in this case. Although Ms. Rutter does have some assets, I am not able to say that losing her costs or paying Ms. Vadnais her costs would not have a dramatic financial effect on Ms. Rutter.
 Finally, although the defendant suggests that the history of negotiations between the parties is such that the offer of $50,000 was reasonable in response to the plaintiffs immediately preceding offer of $61,000, I am persuaded by the plaintiff’s response submissions that there were good reasons for her increasing her offer beyond $61,000 “as her retraining exposed her to physical demands of what she could expect to encounter ‘on the ward’ this showed her that her loss was likely to be more than she had previously thought.” The offer of $61,000 was made at the start of her retraining.
 In conclusion, having considered the submissions of the parties and the factors set out in Rule 9-1, the plaintiff will have her costs of the action at Scale B until March 15, 2014, a reasonable time in which to consider the defendant’s offer. The parties will bear their own costs thereafter.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing future care damages in the case of paraplegia.
In today’s case (Warick v. Diwell) the Plaintiff was involved in an “extremely serious” collision in 2009 where an oncoming semi truck/trailer crossed into their lane. The Plaintiff’s husband and two friends were killed as a result of the impact. The Plaintiff suffered profound injuries and was left paraplegic.
The parties settled all aspects of their claim except the future care costs. The Court provided the following summary of applicable legal principles in future care assessments prior to assessing the Plaintiff’s significant damages.
 The essential principles that determine an award for the cost of future care are not really in issue in this case, with each party simply emphasizing different aspects of the same overall body of authority in their submissions.
 With respect to the standard of proof to be met, “[a] plaintiff who seeks compensation for future pecuniary loss need not prove on a balance of probabilities … that she will require future care because of the wrong done to her. If the plaintiff establishes a real and substantial risk of future pecuniary loss, she is entitled to compensation…”: Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. C.A.).
 Claims made for future care must be both medically justified and reasonable. An award “should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff’s health”: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at paras. 199 and 201; aff’d (1987), 49 B.C.L.R (2d) 99 (C.A.).
 This requirement of medical justification, as opposed to medical necessity “requires only some evidence that the expense claimed is directly related to the disability arising out of the accident, and is incurred with a view toward ameliorating its impact”: Harrington v. Sangha, 2011 BCSC 1035, at para. 151.
 The question has often been framed as being whether a reasonably-minded person of ample means would be ready to incur a particular expense: Andrews v. Grand & Toy Alberta Ltd.,  2 S.C.R. 229 at p. 245.
 The evidence with respect to the specific care required does not need to be provided by a medical doctor: Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, (S.C.) at para. 182. However, there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional: Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 39.
 Damages for the cost of future care are assessed, not mathematically calculated: Uhrovic v. Masjhuri, 2008 BCCA 462 at paras. 28-31. There is an inherent degree of uncertainty and discretion in making such awards. Because awards are made “once and for all” at the time of trial, judges must “peer into the future” and fix the damages “as best they can”. This includes allowing contingencies for the possibility that the future may differ from what the evidence at trial indicates: Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, at para. 21.
 While no award should be made in relation to an expense that the plaintiff will not actually incur (Izony v. Weidlich, 2006 BCSC 1315 at para. 74), the focus of inquiry when a justified item or service was previously unused, is whether it is “likely to be incurred on a going forward basis”: Gilbert v. Bottle, 2011 BCSC 1389 at para. 251.
 A plaintiff is not entitled to an award for that portion of their costs of future care that will be publicly funded. However, the risk that access to public funds may be lost in future is a proper basis to provide a contingency in the award: Boren v. Vancouver Resource Society for the Physically Disabled, 2003 BCCA 388 at para. 25.)
The report reveals that there were 315 natural catastrophe events in 2016 that generated economic losses of USD210 billion. For historical context, 2016 was the seventh highest year on record with the combined economic loss exceeding the USD200 billion threshold for the first time since 2013.
The top three perils—flooding, earthquake and severe weather—combined for 70 percent of all economic losses in 2016. While at least 72 percent of catastrophe losses occurred outside of the United States, it still accounted for 56 percent of global insured losses.
Overall, just 26 percent (USD54 billion) of overall economic losses were covered by insurance in 2016 due to a higher percentage of damage occurring in areas with a lower insurance penetration. However, the public and private insurance industry losses were 7 percent above the 16-year average and the highest insured loss total since 2012. 2016 marked the end of a four-year downward trend since the record year in 2011.
There were at least 34 natural disasters that caused more than USD1.0 billion in economic damage around the globe, though just 11 of those events had insurable losses reach the same threshold. The vast majority of the billion-dollar events (30) were weather-related, and only nine had insured losses at or above USD1.0 billion.
Steve Bowen, Impact Forecasting director and meteorologist, said: “After a decline in catastrophe losses during the previous four years, 2016 marked a bit of an uptick in natural peril costs to the global economy. When recognizing that we have seen a nominal increase in both annual and individual weather disaster costs in recent decades, we recognize that factors such as climate change, more intense weather events, greater coastal exposures and population migration shifts are all contributors to the growing trend. With these parameters in place, and forecasts continuing to signal greater risk and vulnerability, it is anticipated that weather-related catastrophe losses will further increase in the coming years. The data and analysis in this report will help businesses, communities, governments and the re/insurance industry to better prepare and help mitigate the growing risks of these disasters.”
Notable events driving economic and insured losses in 2016 included:
A series of April earthquakes in Japan was the costliest event both economically (USD38 billion in losses) and for the insurance industry (USD5.5 billion)
Six of the top 10 costliest insured loss events occurred in the United States, including Hurricane Matthew and multiple severe weather outbreaks
For the fourth consecutive year, flooding was costliest overall peril at USD62 billion (30% of the total). The most significant flood events were along the Yangtze River basin in China (USD28 billion in damage) and in the US state of Louisiana (USD10-15 billion in losses).
A notable entry into the top five insured losses was for a ‘secondary’ peril – wildfire – in Fort McMurray, Canada that cost the industry nearly USD3.0 billion.
The United States experienced 14 individual billion-dollar economic loss events and Asia-Pacific experienced 13 such events – compared to four in EMEA and three in the Americas.
Today’s guest post comes from B.C. injury claims lawyer Erik Magraken
There are a line of cases suggesting that once a plaintiff passenger establishes that he or she was injured while riding on a public carrier, a prima facie case of negligence is made out.
Today reasons were released by the BC Court of Appeal finding this is not so.
In today’s case (Benavides v. ICBC) the Plaintiff was awarded damages after being injured on a bus. At trial the Court found the driver was negligent. On appeal the BC Court of Appeal noted that the trial judge was wrong in finding there is a reverse onus in such cases however upheld the result on the basis that there was sufficient evidence to establish driver negligence.
The BC Court of Appeal provided the following reasons setting out the principles of liability:
 I draw from this review of the law the following principles:
· The mere fact that a passenger is injured while riding on a public carrier does not establish a prima facie case of negligence.
· The plaintiff bears the burden of proving on a balance of probabilities that the defendant breached the standard of care owed to the plaintiff.
· Once the plaintiff establishes a prima facie case of negligence, in practical terms the burden shifts to the defendant to answer the case against him and to show that he was not negligent.
There was an interesting post on Twitter this week showing drivers interacting with pedestrians at the intersection of Cambie Street and West Broadway in Vancouver. The photo showed 3 cars facing a green light trying to turn onto Cambie from Broadway, 2 eastbound turning left and one westbound turning right into their respective lanes on Broadway. There was a steady stream of pedestrians crossing Cambie against a red don’t walk signal.
Judging from the circumstances, some of the pedestrians had started to cross against the signal.
Two of the cars had stopped at the edge of the marked crosswalk but one driver was doing their best to force their way through the pedestrians and was almost completely within the crosswalk.
There is so much wrong with the situation that it is difficult to know where to start!
Perhaps the most important point to begin with is the driver’s duty to not collide with pedestrians, regardless of the fact that the pedestrians may not be following the rules themselves. Forcing your vehicle through the flow of pedestrians in the crosswalk is a clear violation of this duty.
These pedestrians are regulated by the walk / don’t walk signals at the intersection. You must not step off of the curb unless the white pedestrian signal is lit. Both the solid and the flashing red hand signals mean that you have to wait for the next cycle. Also, contrary to what some believe, the countdown timer (if the signals are so equipped) does not mean that you have the number of seconds shown to get across.
I’ll close with the observation that courtesy doesn’t seem to be a concept included in the use of our streets and highways these days. Me First! is often the attitude shown to others. A little consideration could go a long way to reducing both our crash and insurance rates. We would also arrive at our destination in a better frame of mind.
Imagine, for a second, you’d just shelled out $200,000 for a very rare sports car that was made famous by the James Bond movies.
Then, fast forward the dream scenario and picture a nightmare where you crash the car — a very lightly-used, Aston Martin DB9 in Skyfall silver — have only basic insurance and are facing a $132,000 repair bill.
That is, however, exactly the situation a Richmond resident, Jessica Liu, finds herself in, having driven the stunning limited edition — only 100 were made — for only a few kilometres before she inexplicably veered off the road and hit a large stone near Blundell and Garden City roads in December 2015.
It has been more than a year since Liu — who regularly travels to and from China on business — has driven the car and seven months since she has even seen it.
Since then, Liu’s 007 replica has been languishing in the luxury bodyshop of Burrard Autostrasse (BA) in Vancouver.
For almost a year, Liu, who lives near Blundell and No. 2 roads, has been at odds with the autoshop over their bill to bring her Aston Martin back to roadworthy condition.
To put things into perspective, a pot of the car’s silver paint, which is named after Bond movie Skyfall, chimes in at $900 and a single headlight registers at $7,000.
Neither of those items, however, form the crux of Liu’s contention, with her focus trained on the cost of a pair of brake rotors ($30,000, plus labour) and a completely new subframe ($25,000, plus labour).
“I’m not going to pay a cent; I don’t even want the car back anymore; I want a refund (from the dealer),” Liu, who is in her 30s, told the Richmond News via email from China.
“I don’t think it’s safe to drive. I just drove it for two weeks; I don’t trust the car, I don’t trust the dealer and I don’t trust the autoshop’s invoices.”
Liu, who told BA to stop working on her car last fall, questioned the need to buy a pair of rotors (brakes) when only one of them is chipped and claims she can get the subframe for $10,000 less somewhere else.
To compound her misery, Liu is being dinged $200 a day by BA for storage of the Aston Martin. On Monday, that fee was $18,000.
“I shouldn’t be paying storage fees for a car that isn’t finished,” she added.
Liu bought the car, which can cost $300,000 brand new, for a “bargain” $200,000 in June 2015 from Vancouver-based, luxury car dealer MCL.
After the accident a few months later, she called the dealership and was directed to BA, where the car was towed to.
An initial repair estimate a few days later rang in at around $24,000, before rising, under closer inspection to nearer $100,000 in January of last year.
Not happy with the estimate, Liu took the car to a Richmond repair shop, where she obtained a much cheaper quote for the subframe. However, she discovered the subframe can only be bought by an Aston Martin-approved technician and the only approved facility in B.C. is BA. In July 2016, she felt she had no choice but to take her car back into BA, where it has been since.
Unhappy with the subsequent bill, she sought legal advice in October and lawyers for each party have been duking it out ever since.
Explaining parts of the $132,000 bill, Frank Van Pykstra, co-owner of BA, said the brakes are ceramic and, therefore, “they can’t be machined” like regular brakes.
“This is a car that can go 250 kilometres per hour; we can’t take any chances, it has to be 100 per cent,” said Van Pykstra.
As for needing a pair of rotors and not just one, Van Pykstra said, “When you’re braking in this car, in any car really, the brakes need to be balanced. You can’t replace just one.”
The subframe, he said, is a “restricted part,” meaning only authorized shops can buy it. “I’m not sure how (Liu) could get the subframe for that price; it would have to be from a damaged car or something or from someone using the kind of certification that only a very few people have.”
As for the storage fees, Van Pykstra said he’ll waive them if the matter resolves soon.
“We’ve done everything we can for this customer,” he added.
“We’ve made her an offer, which is valid until this Friday; we will take $5,000 off her bill and waive the storage fees.”
ICBC, which is hiking basic insurance rates next year by 4.9 per cent, announced last November that, beginning this year, it will stop insuring luxury cars worth more than $150,000.
There are about 3,000 cars worth more than $150,000 insured in B.C. this year, a 30 per cent increase from three years ago. Many of them can be seen being driven around in Richmond.
What life insurance is: a policy that pays out if you die.
When you need it: if your death would cause financial hardship to someone, like a spouse.
How it’s priced: based on life expectancy. Any factor reducing life expectancy, like heart disease, will likely mean a higher price.
Comparing prices: Even if you have medical conditions, compare life insurance quotes from several companies. Insurers are competing for your business.
When you apply: A life insurance medical exam is often required. Insurance companies typically also look at your medical records, use prescription-drug databases to see what medicines you take, pull your driving record, and access a database with your answers for previous life and health applications.
Easiest life insurance to understand: term life insurance. You choose only the policy amount and the length.
Cash value life insurance: policies that contain an account that can build up money over time. Eventually you can withdraw the money or take a loan against it. Policies with cash value include whole life, universal life and variable universal life. Term life insurance has no cash value.
Once you buy: Your rates can’t go up once you have a policy, even if you develop new health conditions.
Life insurance payout: called a death benefit. It will go to the person (or people) you designate as the beneficiary.
Note on minor children: They cannot receive life insurance money directly. If you’re buying life insurance to benefit children, you should set up a life insurance trust for them.
From staged car accidents to bogus car theft claims, Manitoba Public Insurance had to deal with a lot of fraud cases in 2016.
MPI’s special investigation unit takes a look at all suspicious claims, and this year they looked at 2,100 such cases, coming up with a top-five list:
* In one case, a person claimed to be hit by a car and unable to work, but security footage showed the claimant hadn’t been hit at all.
* A Porsche owner claimed that his car was stolen from his apartment block but RCMP found the badly damaged vehicle in a rural area the day before, resulting in the claim being denied
* A man who was seriously hurt in the United States tried to file a claim with MPI, but it turned out he hadn’t lived in Manitoba for several years, making him ineligible.
* A father and son were asked to give a statement to an investigator about a stolen truck, but the son offered to pay nearly $11,000 in damage costs because, it turned out, he had taken the truck and rear-ended another vehicle.
* Finally, two cars collided and were badly damaged, but it turned out the drivers knew each other and had staged the crash to cash in on the already badly damaged vehicles. One of them pleaded guilty to fraud while there is a warrant out for the arrest of the second driver.
ICBC is boosting its efforts to fight fraud following the first results from a new high-tech tool which will help identify and target fraudulent claims early in the claims process.
Fraud analytics technology uses data, algorithms and statistical methods to help spot cases where the facts don’t seem to add up to an honest claim.
“This technology is helping ICBC investigators connect the dots earlier, faster and at a level previously not available, in cases where they think a claim may be false or exaggerated,” said Todd Stone, Minister of Transportation and Infrastructure. “Fighting fraud is an important part of ICBC’s efforts to keep rates as low as possible.”
ICBC expects fraud detection and enforcement activities to reduce ICBC’s basic insurance claims costs by $21 million for policies written over the next year. And ICBC estimates all of these activities, including use of the analytics tool, will save up to $44 million a year by 2019.
ICBC has signed a five-year agreement with BAE Systems to use the fraud analytics software and case management solution. (See video of what the tool can do.)
The first run of data through the analytics tool reviewed all claims information for the last three years and generated 3,300 possible fraud alerts on open claims. ICBC has reviewed the first 102 alerts, and started 48 new suspected fraud investigations. ICBC anticipates more investigations to begin in the coming months as we continue to review the alerts. This is in addition to the more than 5,000 claims and driver licensing investigations in 2016 to date, ICBC has already completed.
“Early results from the new tool are exceeding our expectations, but it doesn’t replace the diligent work already done by our trained investigators and front-line claims adjusters,” said Mark Blucher, ICBC CEO and president. “This tool can sift through volumes of information such as claims history, addresses, driver licensing and vehicle registration data quickly, and flag possible links within the data that can alert us to possible indications of fraud faster and on an ongoing basis.”
ICBC will undertake additional data runs with the tool over the coming months, as the new analytics tool is fully implemented. Once fully in place, ICBC estimates the tool could generate an estimated 28,000 alerts a year, in addition to the investigations generated by traditional means.
Most claims are honest, but insurance industry studies estimate that fraudulent and exaggerated claims make up about 10 to 20 per cent of all claims costs. Applying those estimates means that fraud and exaggeration costs B.C. hundreds of millions of dollars each year or every ICBC policyholder more than $100 per year.
ICBC will continue its public education efforts with another fraud prevention awareness campaign early in 2017. Earlier this year, an awareness campaign sparked a 70-per-cent increase to ICBC’s fraud tips line.
British Columbians can further protect their wallets by reporting suspicious activities related to insurance fraud to ICBC’s toll-free tips line at 1-800-661-6844. Tip information is confidential and callers can remain anonymous. For more information, visit icbc.com/fraud.
There are many important steps we can take to keep our home safe from break-ins over the holidays, as we travel and bring new gifts home. Most break-ins are opportunistic burglaries, and Christmas is the time when many thieves are looking for the insecure home.
You can help prevent thieves targeting your home by carrying out a few simple common sense measures.
Always lock all outside doors and windows when you go out, including garage windows and doors, especially if the garage has an internal door leading to the main house. Lock your garden tools and ladders away and always keep your house keys in a safe place. Burglars know to look under a mat, pull the string and key through the letter box, or move the large stone near the front/back door.
When heading out for the evening, put a light on, put the radio or TV on and leave a small gap in the curtains so that a light can be seen.
If you are going away for a longer time, use timers to control Christmas lights and indoor lamps, and ask a neighbour to take in your mail and newspapers and clear your walks and driveway of snow when needed. Consider having a trusted person spend some time inside your house each day. If you leave a car in the driveway, consider having that same person move it periodically to make it appear as if its being used.
Turn your telephone ringer off and don’t leave outgoing phone or email messages to indicate that you are away. Be careful of posting information about your travel plans or expensive gifts on social media.
Do not display your Christmas tree & gifts in a window visible from the street. Criminals may be tempted to smash the window to steal packages or plan a break-in. After Christmas, do not leave empty gift boxes by the garbage or put them our for curbside recycling. This is an advertisement for thieves. Collapse the boxes, cut them up to conceal the items or take them directly to your community recycling depot.
Review your home insurance plan, and be aware that there are limits for how long your home can be left empty for coverage to remain valid.
Insurance agents are encouraged to review these tips with their clients, as well as to be aware of the limitations of their client’s insurance policies.