B. C. Court of Appeal finds insurer negligent in duty of care

B. C.’s Court of Appeal has ruled that ICBC owes a duty of care to advise the legal guardian of a claimant of the claimant’s entitlement to accident benefits and of any limitation on his entitlement.

In McIlvenna (litigation guardian of) v. Insurance Corporation of British Columbia, the plaintiff, aged six at the time, was hit by a car while riding his bicycle in September 1995. He suffered injuries, including a head injury. A statement of claim filed with the court asserts that ICBC knew the plaintiff was suffering from a brain injury and knew or ought to have known the plaintiff and his mother were relying on the adjuster to advise of:

• the claimant’s entitlement to Part 7 of the Regulation benefits;

• any information or documents required for the claim;

• the various treatments and therapies available for a brain injury suffered by a child; and

• any limitation periods.

On Apr. 4, 2003, ICBC refused to provide or fund goods and services that had been recommended for the plaintiff’s brain injury. The insurer stated that Part 7 benefits were no longer available to the plaintiff because legal action had not been commenced in a timely way. An insurer, ICBC argued, owes no duty of care to make the claimant aware of limitation periods that are contained in the claimant’s policies. The statement of claim alleges ICBC was negligent in adjusting the claim for Part 7 benefits and that ICBC breached its duty to act in good faith.

The appellate court’s three-justice panel upheld the decision of a lowercourt, which found that ICBC did owe a duty of care to advise the plaintiff or his mother of the plaintiff’s entitlements to benefits and/or any limitations to them. .