Court Orders Payment Of UMP Funds, Even Though Technically Inaccessible

In Clark v. Bullock, the Plaintiff and others were injured in a collision, and consequently all brought ICBC claims for pain and suffering, as well as other heads of damages. At trial, the Plaintiff was awarded approximately $550,000. The owner of the Defendant‘s vehicle had $5,000,000 in Underinsured Motorist Protection, and the Plaintiff had $2,000,000 in such coverage. There were also infants who had existing ICBC claims from the same accident, whose claims would likely take several years to complete. Normally, a Plaintiff cannot access Underinsured Motorist Protection coverage until such time that it can be proven that the Defendant is underinsured. Under the circumstances, given that the Plaintiff would have to wait years to find out whether the Defendant was actually underinsured or not, the Court nevertheless ordered the payment of approximately $550,000 to the Plaintiff, despite the fact that such funds were technically inaccessible at the time.

[23] In this particular case, ICBC determined that it would waive the entitlement that it has by virtue of the legislation to require that Mr. Clark exhaust all of his remedies, including awaiting the payment of his pro rata entitlement to the $5,000,000 coverage under the Bullock policy; that is, ICBC would waive its entitlement to insist on all of those steps being taken before accessing the underinsured motorist protection coverage.

[24] The condition it attaches is that it requires a declaration from court that would protect it against the potential for having to pay out more than the amount of the Bullock policy.

[25] With that concession or that position being adopted by ICBC, these parties come before me with a request for a declaration. That declaration essentially allows ICBC to access the underinsured motorist protection coverage available to Mr. Clark to pay the amount that Justice Barrow has determined Mr. Clark is entitled to with adjustments as agreed to by the parties.

[30] In my view, the interpretation of the statutes and the application of the law should not be blind to practical solutions when parties, fully cognizant of their rights and entitlement, present such a proposal. The court should make efforts to facilitate that, so long as it is not running afoul of legislation or established legal precedent, and does not prejudice parties who would have an interest in the pool of funds that they would have available to them.

[31] I am satisfied in these circumstances that, indeed, this arrangement is in the interests of both Mr. Clark and the Insurance Corporation of British Columbia, the applicants before me, and it does not prejudice or adversely affect the rights of the other entities, all of whom have been served with notice of this application and have chosen not to participate.


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