The Court allowed the defendant’s post-trial application pursuant to s. 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, and deducted, from the damages awarded at trial, a reasonable estimate of the expenses to which the plaintiff was entitled under the no-fault benefits of Part 7 of the Revised Regulation (1984) under the Act (Reg. 447/83).
The plaintiff, who was a passenger in a vehicle licensed in Alberta, was injured in a motor vehicle accident in British Columbia. The vehicle was insured by Allianz Insurance ("Allianz"). At trial, the jury awarded $90,000 to the plaintiff, including special damages in the amount of $5,000 and cost of future care in the amount of $40,000.
The defendants brought a post-trial application pursuant to s. 25 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (the "Act") for a deduction of the expenses to which the plaintiff was entitled under the no-fault benefits of Part 7 of the Revised Regulation (1984) under the Act (Reg. 447/83). The purpose of s. 25 was to prevent double recovery of benefits.
There was some evidence that the limits under the Allianz policy may have been as low as $10,000. However, under s. 2(2) of the Insurance Company Motor Vehicle Liability Insurance Regulation, B.C. Reg. 84/91, Allianz was obliged to provide to the plaintiff accident benefits equivalent to the benefits available to an ICBC insured under Part 7 of the Regulations to a maximum of $150,000.
At some point after the accident, Allianz terminated the payment of benefits and the plaintiff submitted her expenses to a private insurance carrier. Allianz submitted that the presence of the private insurer as "another insurer" under s. 88(6) of the Regulations made ICBC (and by extension Allianz) a secondary insurer. Allianz argued that as a result, it was not liable for expenses payable by the private insurer. The Court, in rejecting that argument, stated that the fact that s. 88(6) exempted ICBC (or Allianz by extension) from covering the benefits paid by another insurance company did not lead to the conclusion that those benefits were not benefits for the purposes of s. 25 deductions. In the result, the Court ordered that $27,630 was to be deducted from the damage award made at trial.