June 11, 2021 by David Gambrill
It’s an auto insurance estimator’s Catch-22.
A B.C. small claims tribunal recently downplayed expert evidence based on photos taken in an auto collision shop because the estimator didn’t conduct an in-person inspection of the vehicle — even though pandemic lockdown rules didn’t allow in-person inspections.
The Insurance Corporation of B.C. recently won a case against a claimant in a small claims tribunal, but COVID-19 didn’t help the public auto insurer’s case. The B.C. Civil Rules Tribunal (CRT) cast doubt on photographic evidence submitted in place of an in-person appraisal, which was forbidden under the province’s lockdown rules.
The claim arose over insurance coverage for alleged hit-and-run vehicle damage. The claimant, Garry Bernardin, argued that ICBC incorrectly determined that his vehicle damage was not from a hit-and-run accident. Bernardin initially claimed $3,000 for vehicle repairs, but later reduced his claim to the vehicle repair estimate amount of $2,272.20.
Bernardin said he first noticed damage on the passenger side of his pickup truck on Feb. 9, 2020, when it was parked in his driveway. He said it would be impossible to get beside his truck to damage it while it was parked in his driveway, so he speculated that the damage occurred when he was parked in a public arena parking lot the previous day. He reported the damage to ICBC.
Over a period of just under a year, three ICBC employees — including an estimator, a material damage supervisor, and the material damage operations manager — reviewed photos of the damage taken by a collision repair shop. All of them determined that, judging by the photos, the paint transfer they saw on Bernardin’s truck was not consistent with vehicle-to-vehicle contact that would prove a hit-and-run.
But the CRT didn’t place any credence in their assessments in part because none of them had done an in-person inspection of the vehicle, which was not allowed under pandemic lockdown rules.
“It is undisputed that none of the ICBC employees personally inspected Mr. Bernardin’s truck, as all in-person estimating appointments were put on hold due to the COVID-19 pandemic,” the CRT ruled in a judgment released Thursday.
“As Mr. Bernardin submits, I accept it is possible that the photographs may not depict everything relevant to accurately determine the cause of the truck’s damage. Second, there is no explanation for how the employees determined from the photographs alone that the yellow and blue spots in the damage were non-automotive paint transfer.”
The CRT further noted that the three expert witnesses were not third parties, as they were employed by ICBC, and therefore the tribunal gave their opinions little weight.
However, ICBC still won the case, because Bernardin didn’t hire any expert testimony on his own behalf. The tribunal found that Bernardin’s claim of a hit-and-run was purely speculative.
“Bernardin…bears the burden of proving that his truck’s damage was caused by vehicle-to-vehicle contact,” the CRT found. “He specifically submits that he has ‘no idea what caused the damage.’
“He filed a collection of photographs of large vehicles, including commercial trucks and motorhomes, that he says could have been responsible for his truck’s damage. I find his evidence is speculative and insufficient to prove his truck’s damage likely came from contact with another vehicle.”
Photo courtesy of iStock.com/D-Keine