Protrux Systems Inc. v. Insurance Corp. of British Columbia [2004] B.C.J. No. 1967 British Columbia Supreme Court

British Columbia’s statutory automobile insurance is generally the primary insurance for damage to property resulting from an automobile accident. Where the damage results from the abandonment of a trailer truck’s cargo after an accident, ICBC is liable only for the costs of removing the cargo when a legal obligation is imposed upon the driver to remove the cargo. A legal obligation may not arise if an actual order to remove the cargo by a regulatory authority has not been made.

Protrux Systems Inc. ("Protrux") was hauling a load of chip board in a tractor trailer truck. The chip board was insured by AXA Pacific Insurance Company ("AXA").

On February 8, 1999, the trailer truck skidded off the road into a river. The chip board was exposed to water which destroyed its value. Aggressive Auto Towing Limited ("Aggressive") attended at the accident scene. Aggressive was advised that the chip board was valueless as it had been exposed to water. Aggressive pulled the truck and the chip board out of the river and hauled the chip board to a storage site. No one knows who instructed Aggressive to remove the chip board from the river. Aggressive presented a bill for $17,565.66 plus GST for removing the chip board and disposing of it.

AXA agreed to pay Protrux’s account in exchange for the ability to bring a subrogated action against ICBC for the cost of removing the chip board from the river.

AXA, under Protrux’s name, commenced an action against ICBC for payment for removing the chip board from the river. AXA’s position was that section 64 of the Revised Regulation (1984) under the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 required ICBC to cover the cost of removing the cargo. Section 64 states:

64.     Subject to section 67, the corporation shall indemnify an insured for liability imposed on the insured by law for injury or death of another or loss or damage to property of another that:

(a)     arises out of the use or operation by the insured of a vehicle described in an owner’s certificate, and

(b)     occurs in Canada or the United States of America or on a vessel travelling between Canada and the United States of America.

Halfyard J. determined that although there was no evidence of pollution, it seemed clear that there was physical damage caused to the river bed or water in the river by the chip board. However, Halfyard J. held that there was no liability by law imposed on Protrux to remove the chip board from the river. It was not necessary that a demand or order be made against Protrux under the Waste Management Act, R.S.B.C. 1996, c. 482, before liability would be imposed but noted that the evidence failed to persuade him that a legal liability could have or would have been imposed on Protrux under the Waste Management Act for removal of the chip board. Therefore, Halfyard J. was unable, on the evidence presented, to make the finding necessary to establish "liability imposed on the insured by law". The application against ICBC was dismissed.

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