Canadian Underwriter

Why this small claims tribunal changed an auto insurer’s liability finding

January 21, 2021   by Greg Meckbach

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A British Columbia driver who was found 50% at fault for a collision by the province’s monopoly auto insurer has partly won a small claim against the other driver.

Hartmut Wolfram and Yunsun Kim collided with one another in Burnaby on Aug. 31, 2019. They were both driving eastbound on a road with three eastbound lanes. Kim was in the far left lane while Wolfram was in the centre lane.

Wolfram claimed Kim changed into his lane without signalling and collided with his vehicle. Kim claimed it was the other way around ù that Wolfram changed lanes and collided with her vehicle.

Ultimately, the Insurance Corporation of British Columbia found that fault was split 50-50 between the two motorists. As a result, Wolfram was hit with a $500 premium hike.

But in Wolfram v. ICBC, released this week, the B.C. Civil Resolution Tribunal found that Kim was actually 100% responsible while Wolfram is not at fault.

So now Kim has to pay Wolfram $781.83. Of that award, $500 compensates Wolfram for his auto insurance premium increase. The award also compensates Wolfram for his $150 deductible, $125 in court fees and $6.83 in interest.

The CRT rejected Wolfram’s claim for $2,136.99 in damage to his car because that cost was already paid to Wolfram by ICBC.

When Wolfram renewed his ICBC auto insurance on Jan. 26, 2020, he paid $500 more in premiums compared to the previous year. This is because the 2019 accident affected his “risk factor.”

The CRT did not rule entirely in favour of Wolfram. Although it disagreed with ICBC’s finding that Wolfram was 50% at fault, the CRT rejected Wolfram’s claim that ICBC breached its statutory obligation in investigating and assessing fault.

While she found ICBC’s investigation was “not very thorough,” CRT member Trisha Apland did find the ICBC investigation was sufficient, considering the accident was relatively minor and no one was injured.

The CRT does not have the power to impose its finding of liability on ICBC. It does, however, have the power to independently make a different finding of liability than ICBC’s finding. In Wolfram’s case, the CRT also had the power to order Kim to pay damages.

In its investigations, ICBC initially decided Kim was 100% at fault.

Section 151(a) of B.C.’s Motor Vehicle Act says a driver may not change lanes unless the driver has ascertained it is safe to do so and will not affect another vehicle.

Two ICBC appraisers inspected Wolfram’s vehicle while a different appraiser inspected Kim’s vehicle. The appraiser who inspected Kim’s vehicle reported they could not tell which vehicle changed lanes.

Later, an ICBC operations manager looked at photos of both vehicles. That manager wrote it was “more likely” that it was Kim who changed lanes but there was still a possibility it was Wolfram who changed lanes. This is why ICBC did not assign 100% liability to Kim.

Key to the CRT ruling was Apland’s findings of reliability.

Wolfram, who was in the centre lane, told the CRT he intended to turn right two kilometres past the accident site.

Kim, who was in the far left lane, said she was following her GPS and did not know where she was supposed to make her next turn.  Kim says she checked her side view mirror, did not see Wolfram’s vehicle in her mirrors and then felt an impact. Kim said she then saw Wolfram’s vehicle halfway in her lane seemingly to get in front of her and then move back to his lane.

For his part, Wolfram told the CRT he saw Kim in the extreme left lane and saw her move into his lane. Wolfram said Kim’s vehicle hit his vehicle in a “matter of a split second”. Wolfram said he did not see Kim signal prior to her lane change.

In finding Kim at fault, Apland found Wolfram’s statement, about the vehicles’ positions on the road, was more reliable. Wolfram was able to describe the traffic around him and knew where he was turning. But Kim does not describe anything about the traffic ahead or beside her, wrote Apland.

“I find this suggests Ms. Kim was distracted or not reasonably aware of the traffic around her. Considering this, I find it plausible that Ms. Kim allowed her vehicle to cross the broken line without signalling as Mr. Wolfram asserts that he saw.”

Apland also found it would have made little sense for Wolfram to change into the far-left lane of a three-lane highway considering he intended to make a right turn two kilometres ahead.


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1 Comment » for Why this small claims tribunal changed an auto insurer’s liability finding
  1. Eric says:

    The moral of the story? Given thousands of dollars of future premiums are going to be at stake when you get into an accident, best have a dashcam.

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