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Richmond family gets help, has ICBC ruling overturned

Martin van den Hemel   Jul-30-2018

Despite this photo, which appears to show the driver of the white car cut a corner, the Chan family was ruled to be equally at fault for crash.

Photo by Gabriel Chan

It took more than six months for a Richmond family to get an Insurance Corporation of BC ruling overturned, and only after turning to the media for help.

Now they’re wondering how many other people have been treated the same way by the Crown corporation.



What’s especially troubling for Gabriel Chan and his father Kenneth is that their case was fairly straightforward.

On Jan. 7, around 8:30 p.m., Gabrielle Chan was exiting his condo's parkade when he spotted the distinctive lights of an approaching vehicle coming from around a blind concrete corner wall near the roll-up gate entrance.

He stopped his vehicle, and even honked his horn at the approaching vehicle—even while it was out of sight—when he saw the driver cut the corner and approach him head-on on his side of the laneway.

But it was too late, and the driver smashed her vehicle into the nose of his vehicle in a fairly low-speed collision that caused hundreds of dollars in damage.

Luckily, nobody was injured, and Chan got out of his vehicle to inspect the damage and check on the other driver. He then exchanged insurance and identification information with the female driver of the other car and snapped photos of the damage and the relative positions of the two vehicles in the context of their surroundings.

But things started to go sideways a couple of days after Chan filed the claim.

An ICBC adjustor ruled that Chan and the other driver were equally at fault, because they had opposite versions of events and the photos did not show the two vehicles in direct contact.

Gabrielle's father, Kenneth Chan, who owns the vehicle, spoke to the adjustor on Jan. 10. She told him, he said, that based on the photos, and the fact both parties disagreed on what happened, liability was going to be split equally.

She claimed that since the other driver moved her vehicle backwards after the crash, that it was possible both cars were moved, and as a result the photographs don't give a true indication of what happened and the precise positions of the vehicles at the time of the collision.

The other driver, who could not be reached by The Sentinel, insisted that Gabrielle was driving on the wrong side of the road.

"I argued with her that it is a little bit ridiculous," Kenneth told The Richmond Sentinel about his discussion with the adjustor.
Even when ICBC was later supplied with security footage—which shows the female driver entering the parkade, and then shows her cutting the corner, stop out of the view of the camera and then shows the shadow of her vehicle back up—that wasn't enough to sway ICBC, Kenneth said.

Kenneth said he asked to have the decision appealed, but the adjuster said she spoke to her team, and they agreed with her ruling.

And, Kenneth stressed, the adjuster did not inform him about any other avenues for appeal, unless he had new evidence. Otherwise the case was closed, he said he was told.

In fact, Kenneth could have applied for an ICBC claims assessment review, but by the time he contacted The Richmond Sentinel in April and learned about that option, the 60-day review deadline had passed.

In fact, the Chan family had given up on the claim until they came upon an article in a Chinese newspaper about the experience of another dissatisfied ICBC customer. That's when Gabriel contacted The Sentinel.

“Because of the 50/50 ruling, we each had to pay (the) $150 deductible to repair our cars, however, beyond that, both our premiums increase as if we were both at 100 per cent fault,” Gabriel wrote in an email to The Sentinel. “As a result, the cost for me to insure my car is now many times higher than before and may affect my ability to get jobs requiring (a) clean drivers abstract. It seems that ICBC has benefitted most by this ruling with the increased rates on both parties.”

ICBC spokesperson Joanna Linsangan said "adjusters base their decisions using all available information to make an objective and fair assessment."

Customers are notified about the steps involved in making an appeal via an initial letter from ICBC.

"Our records do not show that Mr. Chan wished to appeal the decision, however, we would be happy to re-open his file and conduct a claims assessment review, even though we are no longer within the 60-day time limit," Linsangan wrote in an April 24 email to The Sentinel.

Of the tens of thousands of claims annually, only 711 cases went to a claims assessment review last year. Another 20 went to small claims court, according to ICBC.
Richmond lawyer Whitney Derber said that part of an ICBC adjuster's role is to minimize the Crown corporation’s financial exposure.

It's not uncommon that she sees rulings that split liability, she said, but after viewing the evidence provided by the Chan family, she believes their version of events.

"It seems like common sense to me that it occurred on the right side of the roadway," Derber said. "There are a lot of fair adjusters out there but in this case and in some others I've had experience with, I don't feel the process has fairly represented what the evidence demonstrates."

Derber said the burden of proof in a civil trial is a balance of probabilities, specifically that the Chan's version of events is "more probable" than the other party's.

Derber said people who deal with ICBC should know that an adjuster may not be working to protect their interests.
She said when blame is split 50:50, that has real consequences for drivers, who see their ongoing insurance discounts reduced year after year.

Derber urged the Chan family to take the case to small claims court.

"I think it's worth fighting that fight."

Fortunately for the Chan family, they didn’t have to go to court after all.

ICBC’s overturned its ruling in mid-July following the claims assessment review, and Gabriel Chan was found not at fault.

Chan doubts that ICBC would have allowed the claims assessment review to proceed in the first place without The Sentinel’s assistance, but wondered why involving the media was necessary for ICBC to get this ruling right.

“I highly doubt the decision would be reversed without your help,” Gabriel Chan said.

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