Canadian Underwriter

Did the other driver admit fault? Get it in writing.

September 26, 2019   by Jason Contant

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B.C.’s small claims court found no fault with the way the Insurance Corporation of British Columbia (ICBC) assessed liability for a motor vehicle accident, despite a complaint that the insurer did not follow up on an admission of guilt by one of the drivers after the collision.

ICBC assigned 50-50 liability to both drivers. However, the driver of one vehicle, Taylor Jameson, argued before the province’s Civil Resolution Tribunal that the other driver should have been found 100% liable because she admitted fault. The tribunal dismissed Jameson’s complaint.

Tribunal member Kathleen Mell found there was no proof that the second driver – Jameson’s aunt, identified only as ‘D.’ in the decision – admitted 100% liability. ICBC also denies that D. admitted full liability.

“I do not accept Taylor’s claim that D. admitted 100% liability because she was wearing flip-flops and her foot slipped off the brake,” Mell wrote in the Sept. 23 decision, Jameson et al v. Insurance Corporation of British Columbia. “There is no proof that D. provided this information to ICBC either at the initial claim assessment phase or on review. I also note that Taylor had the opportunity to get a witness statement from D. and submit it to this tribunal but she did not do so.”

The case revolves around an accident on July 2, 2018 in which Jameson and her aunt were travelling in opposite directions along a narrow driveway when their cars collided. ICBC assigned 50-50 liability under the Motor Vehicle Act because Jameson was driving on the wrong side of the driveway. Jameson argued that ICBC breached its statutory obligations in investigating the accident and assessing fault.

An insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective, Mell noted, but rather must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness and objectivity to the investigation and the assessment of the collected information.”

“Given the overall evidence, I find that ICBC did not breach its statutory obligations or its contract of insurance,” Mell ruled. “The evidence indicates that ICBC carried out a diligent, fair, thorough and objective investigation, including at the claims review assessment stage. I find ICBC acted reasonably in administratively assigning Taylor 50% responsibility for the accident.”

During its investigation, ICBC interviewed Jameson, who originally said she was going down the driveway and was coming up to a blind corner on the right. She said she was on the “left side of the driveway” and saw D.’s car coming up the driveway. Jameson said she stopped, but D. did not have time to stop and hit her car, resulting in a big dent in the centre of Jameson’s car’s front bumper. D. agreed that Jameson’s car was damaged in the front middle area and her car was damaged on the drivers’ side front bumper, headlight and fender.

ICBC apportioned liability 50-50 based on the parties’ statements and the location of the damage done to the vehicles; specifically that Jameson’s vehicle was damaged in the centre and not the side. ICBC determined that this meant she was not properly driving on the right-hand side of the driveway.

In her application for an ICBC claims assessment review, Jameson said that when she indicated she was travelling on the left side of the driveway, she meant she was on the left-hand side of the vehicle, and not the left-hand side of the road.

“It is obvious that the driver’s seat is on the left in North American vehicles,” Mell wrote. “It does not ring true that Taylor felt obliged to point this out. Rather, in the context of her statement, it makes more sense that Taylor was referring to the fact that this was a blind corner on the right so she decided to drive on the left-hand side of the driveway so she could see if anybody was coming.”

The review arbiter agreed it was unclear as to where the parties were travelling on the driveway and Jameson may have been driving in the middle based on damage to her vehicle. “The arbiter did not find she was driving on the right as required by law.” It boiled down to a “she said/she said scenario,” the arbiter said in upholding the 50-50 liability assessment.

“I find that Taylor has not proved on a balance of probabilities that D. was 100% at fault for the accident and I agree with ICBC’s apportionment of 50% fault to each driver,” Mell wrote.