The 'Dark Side' of ICBC 

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There probably aren't a lot of people who honestly believe defendants in criminal cases shouldn't be entitled to a vigourous defence. After all, when you've got the power of any level of government bring charges against you that may result in the loss of your personal liberty, it seems only fair to level the field a bit. Of course, it's hard to warm up to the idea when the charge is something like, say, child molesting. But if you believe in a justice system where people are presumed innocent until proven guilty beyond a reasonable doubt, you can't start making that presumption conditional on the offence charged.

No such entitlement exists in civil litigation. Civil litigation seeks to right a wrong. That wrong may be, for example, contractual, one party believing a second party didn't live up to their end of the bargain, or it may stem from one party visiting harm on another. The ultimate example of the latter being wrongful death suits.

In criminal cases, there is always a remedy if someone is found guilty. Might be jail, prison, probation, fine, or if you're in the senate, a very mild slap on the wrist, no criminal record and some tissues to wipe the coke from your nose.

In civil cases, there may be a right but whether or not there's a remedy depends largely on who you win your case against. It's a pyrrhic victory to get a million-dollar judgement against someone with no assets.

Enter insurance companies.

In my brief legal career, I had the misfortune to work for a firm that did a lot of defence work. Whenever the person needing our services was insured, we were notionally working for that person. We were really working for the insurance company footing the bill. After all, if our "client" was found negligent it would be the insurance company paying up to the policy limits.

We didn't have any clients who weren't insured. That's because we were lawyers and we liked to get paid. People who weren't smart enough to be insured probably didn't have the money to pay our fee themselves. In the criminal justice world, there are public defenders for those people. Public defenders like to say they provide a reasonable doubt for a reasonable price. Lawyers doing civil defence work prefer to say, "How much defence can you afford?" At a couple of hundred dollars an hour, most people without insurance can't afford much. And so, we worked for insurance companies.

What was that like?

Hell. Well-paid hell but hell nonetheless. And I didn't even believe in the place.

The overarching rule was this: Insurance companies hate to pay out on the policies they've written. They didn't like to pay me but they preferred to pay me for every hour I worked rather than pay a judgement against their client. So my job was to keep that from happening or, if that wasn't possible, delay the inevitable as long as possible. Why delay? Because the longer I delayed the more likely I could convince the opposing side to settle for pennies on the dollar.

That meant, among other reprehensible things, telling grieving parents their dead six-year-old's "value" was speculative. After all, who knows what a child so young might grow up to be... or be worth. It meant making their lives hell, making them relive their nightmare, making them prove the value of their child. And if it looked as though a judgement against my client — and the invisible insurance company standing behind him or her — was inevitable, badgering them on the witness stand until, in frustration, they'd mention the fact it wasn't my client who'd have to pay for the wrong they'd suffered, it was the insurance company. At which point I'd move for a mistrial, be granted one and the whole long, slow process would start over again.

Very few people have the stamina to go through something like that once, let alone twice. At that point, emotionally drained, that offer of pennies on the dollar began to look much more attractive.

Perhaps that's why I was less surprised when ICBC moved to join the lawsuit filed by Lizanne Bussieres for the wrongful death of her husband, Ross Chafe. Perhaps that's why it turned my stomach less than many other's when the lawyers for ICBC alleged the accident that so brutally took his life may have been Chafe's own fault.

After all, says ICBC, maybe Chafe wasn't taking due care or paying attention, after all he didn't avoid Sam Alec crossing into his lane and slamming into him. Oh, and he didn't warn the "allegedly" intoxicated Alec the crash that killed him appeared imminent. Heck, maybe Chafe was impaired. After all, everyone knows how easy it is to ride a bike up to Joffre when you're impaired!

To be fair, the claim of impairment was dropped. It was likely added through the magic of word processors and sloppy lawyering. Nonetheless, it is illustrative of the depths to which ICBC, through its lawyers, will stoop to avoid what we can only hope is the inevitable in this case.

The kicker is ICBC's claim, made with as straight a corporate face as possible, that they are, "... not accusing the cyclist(s) of anything.... This is very much part of the standard legal process.... The reason we enter into cases like this... is to ensure there is a fulsome defense given so that any settlement given is a fair one."

Your concerns are our concerns.

With the exception of the accusation of impairment, I'm pretty sure we can expect exactly the same allegations to be raised in the action arising from Kelly Blunden's death.

As a client of ICBC — aren't we all — I want them to pay out claims carefully. I want them to defend frivolous claims vigourously. But sometimes there just isn't much of a defence to be mounted. When you've got an alleged serial drunk, with no licence, allegedly intoxicated on a perfectly clear, sunny Sunday morning, allegedly crossing the centre line, killing two stone-sober, experienced cyclists and causing the death of his passenger....

Earth to ICBC. It must be a very dark place where you've parked your head.

The drama continues.

(None of the claims have been tested in court.)

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