B.C. Supreme Court awards $75,000 in punitive damages against ICBC for “multiple failings” in accident investigation

The B.C. Supreme Court has awarded $75,000 in punitive damages against the Insurance Corporation of British Columbia (ICBC), which denied coverage to the plaintiff on the basis of impaired driving allegations even though all criminal charges for impaired driving had been stayed prior to trial.

The plaintiff, Eleanor McDonald, took the wrong exit off Highway 1 in B.C. at the Mt. Lehman interchange, turned the wrong way against the traffic flow along the Fraser Highway and ran into an oncoming van driven by Thi Hoa To.

A police officer at the scene smelled a faint trace of alcohol on her breath and had McDonald blow into a breathalyzer. But after multiple attempts, McDonald could not get a reading on the instrument. The officer assumed she was not trying hard enough and handcuffed her, charging her with refusal to provide a breath sample and impaired driving.

McDonald was also issued a ticket for driving without reasonable consideration of others using the highway, and later charged with dangerous driving.

ICBC’s investigation of the accident focused on whether McDonald, who was in her 20s at the time, had borrowed her mother’s car without her mother’s permission. McDonald’s insurance on her own car had lapsed.

One day after the accident, ICBC called to ask McDonald’s mother if her daughter had permission to drive her car that night. The mother related to the ICBC investigator that her daughter did not ask for permission to drive the vehicle that night. But there was some question about whether the ICBC investigator understood that McDonald had ongoing permission to take her mother’s car.

The ICBC investigator waited until the outcome of the impaired driving charges in court. The charges were stayed before trial. But in consultation with a supervisor, the ICBC investigator resumed the investigation focusing on the theory that McDonald was “incapacitated” from driving because of alcohol.

ICBC went back to the police officer who had charged McDonald the night of the accident. His evidence was inconsistent with the evidence of another police officer who had stopped McDonald and her friends earlier that same night of the accident. The initial officer had not in fact detected alcohol on her breath, thus letting her go.

“In my opinion, ICBC’s multiple failings in the investigation, assessment and breach decision [the theory that McDonald was driving without her mother’s permission] that I have outlined, and its misconduct in relation to the To Action [a civil action against McDonald, her mother and the mother’s leasing company], respectively, contravened the duty of fair dealing and good faith owed to the plaintiff,” the court found.

The full case can be found at:

http://www.courts.gov.bc.ca/jdb-txt/SC/12/02/2012BCSC0283.htm