Burns v. ICBC Date:, 2013 BCPC 236

Citation: Burns v. ICBC Date: 20130906 2013 BCPC 0236 File No: 15426 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HAZEL BURNS CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. MORGAN Appearing on their own behalf: H. Burns Counsel for the Defendant: C. Sauter Place of Hearing: Quesnel , B.C.

Date of Hearing: June 3, August 20, 2013 Date of Judgment: September 6, 2013 [ 1 ] The Claimant, Hazel Burns, seeks an order that the Defendant, Insurance Corporation of British Columbia, [“ICBC”] pay to her the money the Defendant was prepared to pay to the registered owner of a totalled vehicle that was transferred to her after the claim was made. The Claimant says it was the intent of the previous owner that she should receive the claim money. ICBC takes the position that

the fact of the transfer nullifies the claim. Facts: [ 2 ] On October 22, 2011, Ms. Burns' son was shot and killed while driving John Steven’s car. The subsequent accident resulted in the vehicle being a total loss. Mr. Steven’s, as registered owner, made an insurance claim for the vehicle. The claim was accepted and the payout was determined by ICBC to be $11,440.56. [ 3 ] The registered owner wanted to help Ms. Burns with the funeral expenses for her son, and offered to transfer the totalled vehicle to her on the understanding that ICBC would pay the money for his claim to her. Ms.

Burns accepted his offer. [ 4 ] On November 14, 2011, Ms. Burns went to an insurance agent in Quesnel BC, and asked the agent if the claim would survive the transfer. The agent did not know and suggested Ms. Burns talk via telephone to an ICBC Dial-a-Claim agent. The Quesnel agent dialled the phone number for Ms. Burns. [ 5 ] Ms. Burns asked the ICBC Dial-a-Claim agent if she could transfer a vehicle into her name with the claim pending. She explained to the Dial-a-Claim agent that her son had been driving a friend’s car and had been killed in the car.

She explained that the registered owner, John Stevens, offered to transfer the vehicle to her to help with the funeral costs. The agent told her she was sorry about her son's death. Ms. Burns asked, "Can I transfer while there is an active claim?" She was told 'yes' by the agent. Ms. Burns testified that she then said “Are you sure because I do not want to transfer the vehicle if it is going to screw up the claim." She testified she was told by the agent "Yes, you can transfer it." [ 6 ] After receiving the information from the Dial-a-Claim agent, Ms.

Burns hung up the phone and completed the transfer with the Quesnel agent, believing the payout on the claim would go to her. [ 7 ] A few days later she contacted ICBC adjuster Vicky Wong, who told her that the claim on the vehicle was rendered void due to the transfer. [ 8 ] As to the erroneous information, Christina Spibey, the agent who may have been the Dial-a-Claim agent Ms. Burns spoke with, has no recollection of having spoken with Ms. Burns, and also says that if she did speak with Ms. Burns, she would have told Ms. Burns the claim would not survive the transfer of ownership. [ 9 ] I accept Ms.

Burns’ testimony on this point. The only reason she wanted to transfer the vehicle into her name was to receive the claim money. The only reason she asked the Quesnel agent, and was then transferred to a Dial-a-Claim agent, was to confirm the claim would survive a transfer. It is extremely illogical and unlikely that, if she was told the transfer would nullify the claim, she would have gone through with the transfer anyway. [ 10 ] The matter was referred to ICBC's Fairness Commissioner.

The Commissioner, based on the information he had before him, found nothing unfair in ICBC's position. [ 11 ] ICBC adjuster Wilson Tung, who has taken over conduct of this file, testified that ICBC had determined it would pay out $11,440.56 to the registered owner Mr. Stevens, and that the only reason this money was not paid out to Mr. Stevens was because of the transfer. [ 12 ] Mr. Tung also said that if a document had been supplied to ICBC making clear the registered owner at the time of loss was assigning his right to the monetary payout under the claim to the new registered owner Ms.

Burns, ICBC would have honoured the assignment and paid the money to Ms. Burns. [ 13 ] This position is consistent with the information provided by Ms. Burns who testified she was advised by ICBC North Vancouver manager, John Fowler, that she should provide a document signed by Mr. Stevens wherein he agrees to relinquish all rights on the claim regarding the vehicle in question to Ms. Burns. Ms. Burns, acting on this advice, drafted a document that has been entered as Exhibit 12 in these proceedings.

That document is dated November 1, 2011, and is addressed ‘To Whom It May Concern’, and is stated to be regarding claim number P410327.0. The body of the document reads as follows: I, John Stevens, previous owner of the 2004 Acura TL agree to relinquish all rights on the above claim to the new vehicle owner Hazel Burns, as per the request by Mr. John Fowler, manager ICBC North Vancouver, BC. [ 14 ] The document is signed by the Claimant, Hazel Burns, and, she testifies, is also signed by John Stevens. Ms.

Burns testified that she was present when John Stevens signed the document. [ 15 ] The document is dated November 5, 2012. Ms. Burns explains that it took that long to get the document signed as a result of several factors including her availability to be in the lower mainland, and being able to find, and arrange a time to meet with, Mr. Stevens. [ 16 ] It is not clear if and when ICBC was ever presented with this document prior to trial. Ms.

Burns testified she had been told clearly that the claim was to be disallowed, so started this action, and cannot recall if she provided a copy of the document to any ICBC representative prior to trial. [ 17 ] At trial, ICBC adjuster Mr. Tung testified that the document was presented "too late" to make any difference, without explaining the rationale behind that position.

[18] Mr. Tung confirmed that the original registered owner, Mr. Stevens, did not owe ICBC any money. The only evidence as tomotivation for the transfer is that of Ms. Burns, where she says Mr. Stevens wanted her to have the payout money to assist with her son'sfuneral expenses. The trial was adjourned to allow Ms. Burns to attempt to find the original owner, Mr. Stevens, and have him testify. However, Ms. Burns was unsuccessful in locating Mr. Stevens. Mr. Stevens has never attempted to collect on the claim for himself. [19] ICBC relies on the following wording found in their Auto Plan Optional Policy. Under Division 5 ‘Own Damage Coverage’,“insured” is defined in relevant part as: 5.1

a) the person named as an owner in an owner's certificate. [20] ICBC's responsibility to indemnify is set out, in relevant part, as follows: 5.4 Indemnity - With respect to the type of coverage for which a premium is indicated on an owner certificate, or specialcoverage certificate or policy, the Corporation shall, subject to the terms of this Division, indemnify an insured, to the extent of theinsured’s insurable interest, in respect of direct and accidental loss or damage to the vehicle described in the owner’s certificate....[emphasis added]. [21] The Corporation also relies on documents that set out its own internal policies.

That policy includes a policy that "claims mayonly be made by the insured named in the policy at the time of loss," and that a "new owner cannot present a claim on behalf of aprevious owner." [22] I.C.B.C. also relies on the Supreme Court of Canada decision in Caledonian Insurance Co. V.

Edmonton Terminal Grain Co.(Liquidator of), (SCC), [1932] S.C.R. 581, for the proposition that a contract of insurance is a personal contract betweenthe insurers and the insured, and that the mere transfer of property is not in itself sufficient to pass the benefit of the insurance to thetransferee. [23] I note that the court in Caledonian also states: On the other hand, it is equally well established law that a vendor owning a building upon which he holds a policy of insurancemay validly transfer the building and, at the same time, validly assign to the transferee the policy of insurance. [24] In the present case, the question of whether the corporation's own internal policies inform the law in general, or theinterpretation of the particular policy of insurance, need not be addressed.

This is because it was the registered owner, Mr. Stevens whomade and presented the original claim. The claim had been adjudicated and the Corporation had determined the amount of its liability. The only thing left to do on the claim was to send a cheque to Mr. Stevens. [25] Any confusion on the Corporation's part arising from the transfer should be limited to the question of who to pay the money to. It was not open to the Corporation at that point to proceed as if there had been no claim made by the registered owner, Mr.

Stevens. [26] It is understandable the Corporation may have been reluctant to pay out to either the original registered owner, or to Ms. Burns,without a document signed by both of them making clear the assignment of rights. Both the current adjuster, Mr. Tung, and purportedlyICBC North Vancouver manager Mr. Fowler, appear to be in agreement that a clear and valid assignment of rights under the claim is allICBC would need.

I agree. [27] I find that Exhibit 12 is clear and unambiguous and that the original registered owner, John Stevens has assigned his right tocollect under the claim that he had filed while he was the registered owner, to the new registered owner, Ms. Burns. [28] I find that the only reason the parties effected the transfer was to assign from Mr. Stevens to Ms. Burns the right to receive thepayout on Mr. Steven’s claim. Although the transfer in itself did not amount to a clear and unambiguous assignment, the subsequentwritten assignment is valid. [29] I note that the delay would not have happened but for Ms.

Burn’s understandable reliance on the information she received fromthe Dial–a–Claim agent. On the evidence before me, there should not have been any confusion as to what Ms. Burns was asking, andwhy. [30] The Defendant, ICBC, will pay forthwith to the claimant the sum of $11,440.56 plus $156.00 filing fees and $10 service fees,for a total of $11,606.56. Pre-judgment interest is not awarded given there is no evidence the November 5, 2012 assignment wasprovided to ICBC prior to trial. _______________________ R. D. Morgan Provincial Court Judge