Hergott: Criticism for accident policy

If ever there was an unfairness screaming out to be exposed, it’s ICBC's “Low Velocity Impact” policy.

If ever there was an unfairness screaming out to be exposed, it’s the “Low Velocity Impact” policy employed by British Columbia’s monopoly auto insurer.

To understand how ridiculous this policy is, you need to understand that if you are injured in a crash that is not your fault, you have two sets of rights.

One set of rights is owed to you by ICBC under a legislated policy of insurance available to most British Columbians whether or not you are at fault in a crash. This policy entitles you to a basic set of medical and disability benefits that arise out of Part 7 of the Insurance (Vehicle) Act.  I will refer to those rights as “Part 7” rights.

When ICBC is administering those Part 7 rights, ICBC is acting as your insurance company and, as such, owes you a legal duty to treat you fairly.

The other set of rights is against the driver that wasn’t paying attention and smashed into the back of your car.

Of course, due to the liability insurance monopoly in British Columbia, ICBC is typically that driver’s insurance company as well.

That’s the set of rights that entitles you to full and fair compensation for any losses you suffer arising from a collision, including full income loss, full reimbursement for medical expenses, and compensation for “pain and suffering.”

When negotiating that set of rights with you, ICBC’s duty is to that other driver, and doesn’t owe you any duty to treat you fairly.

The clearest distinction between how those two sets of rights are administered is when there is a small amount of damage to vehicle bumpers.

We are all different. Some of us will not be injured at all in a collision that causes minimal damage to the vehicle bumpers.

On the other end of the spectrum, some of us, because of our particular physiology and particular dynamics of the collision, will end up suffering from a whiplash injury that will never fully resolve.

It doesn’t help that vehicle bumpers are designed to withstand a certain velocity impact without crumpling.

That design saves the insurance industry a lot of money in vehicle repair expense because the forces involved in the collision are not absorbed by crumpling steel. Instead, the car has a bounce effect that delivers even greater forces to the vehicle occupants.

Let’s say you are sitting at a red light and your vehicle is rear-ended. You suffer injury and are referred by your doctor to expensive therapies. Your doctor tells you to take time off work to assist in your recovery.

Nobody, not even the insurance company, disputes that you have been injured. The insurance adjuster specifically tells you that he believes that you are  injured.

In fact, you are given full access to the Part 7 benefits I described (a portion of treatment expense and income loss). Remember, when administering those benefits the insurance company owes you a duty of good faith.

When you ask for fair compensation for the rest of your losses, though, the insurance company outright denies your claim. Why? The answer is the Low Velocity Impact policy. There is not enough damage to the bumpers. What?

You didn’t hurt before the collision and now you hurt.  Your doctor has diagnosed a whiplash injury and has referred you to therapy.

You are spending a bunch of money on the prescribed therapy.  You have been told to take some time off of work to assist with your recovery. The insurance adjuster specifically agrees and acknowledges that you were injured.

But your claim for fair compensation is outright denied.

Does this sound just a little bit wrong? The only way to beat the Low Velocity Impact policy and achieve justice, to achieve fair compensation for your losses, is to pursue a lawsuit.

The insurance adjuster might lie to you and say that nine out of 10 of those lawsuits are thrown out of court. Don’t believe it.

A judge is likely to believe the truth just like the insurance adjuster does. They want you to just give up and go away.  In fact, many of these cases settle before ever getting to court.

This column is intended to provide general information about injury claims. It is not a substitute for retaining a lawyer to provide legal advice specifically pertaining to your case. Paul Hergott is a lawyer  at Hergott Law in West Kelowna.





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