Does ICBC lowball settlement offers? Government review says no

The B.C. Utilities Commission has asked ICBC to provide information on potential rate hikes through 2020, but the public insurer has so far refused. Nov. 22, 2016. (CTV)

The perception that ICBC tries to lowball settlement offers or needlessly pushes injury claims to trial isn't backed up by evidence, according to a government review of the insurer's practices.

Lawyers for the Ministry of the Attorney General launched the review last summer to help determine how much blame ICBC shoulders for climbing litigation costs, which are a major factor in what officials have dubbed a "dumpster fire" in the insurer's finances.

After reviewing 100 randomly selected cases that were closed between 2013 and 2017, the ministry's legal counsel found little evidence to support the reputation ICBC has among some drivers for lowballing.

"Justified or not, ICBC has long been criticized for making inappropriately low settlement offers with the alleged effect of driving claimants to retain counsel," their report reads.

"Reviewed claims files do not validate that criticism whatsoever. ICBC is not responsible in any observable, systematic way for making inappropriate offers or inappropriately pressing cases to trial and thus unnecessarily generating legal costs."

Minor, major and catastrophic injury claims were all included in the review, some where the claimants represented themselves and others where they hired legal counsel. The review also included some cases that never resulted in a lawsuit.

But personal injury lawyer Ron Nairne, who has been practicing for 28 years, noted 100 cases is "a very small sample size" considering ICBC handles thousands of cases a year. He also questioned the decision to have ministry lawyers scrutinize the cases, given that Attorney General David Eby is the minister responsible for ICBC.

"It's not exactly an independent review," Nairne said.

According to the ministry's findings, claims cost more the longer they take to resolve. To hasten the process, the report recommends decreasing the current two-year limitation date – which is the deadline for filing a lawsuit – down to 18 months.

"Some will doubtless argue that plaintiffs often need time to see how injuries settle. This is true but, properly understood, is a matter of assessing damages and rarely has anything to do with the commencement of action," the report reads.

The deadline should only be shorted if the government also implements a "pre-action protocol" forcing people to provide more details on their claim before filing suit, according to the review.

But Nairne suggested a tighter timeline might actually result in more cases being filed because it gives lawyers less time to negotiate a settlement outside of the court process.

"Many get resolved without any litigation whatsoever," he told CTV News.

"To take it to an extreme example, if the limitation date was a month after the accident, then virtually everything would have to have litigation started."

He argued the best way for ICBC to reduce costs would be to work on reducing accidents and to hold bad drivers accountable for increasing costs to the system.

"There could be surcharges for bad drivers – they should be the ones who have to absorb these costs, if anyone," Nairne said.

Whether the government acts on the recommendations or not, the system is about to undergo major changes this year when ICBC implements its controversial cap on minor injury claims. Advocates have argued the $5,500 cap on pain and suffering payouts addresses ICBC’s financial difficulties by shortchanging victims.

To read the Ministry of the Attorney General's full report, "ICBC Litigation Review," click here.