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October 25, 2016:  ICBC’s approach to personal injury

Listen to the interview above or read the full transcript below.

Kash:  

Well, you’re probably wondering why your insurance rates are going up. We’ve heard various explanations due to some of the collision repair companies charging a lot more money or various things like that. We have heard that due to some fraud, but that’s very few from what I know about this area. To learn a little bit about more about this, I’m joined in studio by Manjot Hallen. He’s a partner at Warnett and Hallen. He specializes in ICBC case settlements, he’s a business and community leader, and he has 100,000 cases under his belt. Kind of concerned. We’re all concerned that our ICBC rates are going up, but I don’t believe that due to the fact that they’re saying, “Well, more and more people are committing fraud,” or, “It’s costing us more to fix the cars.” I think there’s a bit of that, but there’s some other primary reasons, and that has to do with a lot of the settlements that they’re having to pay out a fair amount of money on. Usually it’s as a result of a court case versus their previous practice of settling through negotiations with the lawyer, Manjot.

Manjot: 

That’s right, Kash. First off, thanks for having me on your show. I appreciate that. You’re correct. ICBC has been saying that it’s fraud that’s increasing your premium costs but if you look at the stats, the instances of fraud are few and far between. Furthermore, the other thing that they tend to say is that they increase premiums as a result of increased claims. Again, that is not the case. If you look at the stats, the claim costs have increased, that is true, but that’s not the reason your premiums have gone up the extent that they have. The real issue here is the inefficiency at ICBC. The fact that they are pushing things towards litigation, they’re paying more for their lawyers, they’re not settling out of court like they used to, they’re taking principal positions, and it’s costing all of us more money as a result-

Kash:  

But they’re not looking at the cases per se. They’re lumping it in, as you’re saying, they’re taking a principal approach to dealing with it. Fight it, fight it, fight it. I’ve talked to several lawyers, and your company, Warnett and Hallen, you guys deal with this exclusively. Other corporations, they deal with it exclusively too and they tell me that previously, they would negotiate, they would work with the person that’s making the claim. They would work with the adjuster, whoever makes the final decision at the end of the day, work with the other, if there’s a lawyer assigned, come up with a settlement that’ll meet the needs of that individual that’s filing a claim. You don’t have that anymore. I recall talking to several people when I was in government, and they said the change of practice is concerning because, for example, they were giving me cases where they tried to negotiate and they had a figure that was on the table. The end of the day, it went back to ICBC. ICBC said no, it went to trial, and ICBC ended up paying a lot more out.

Manjot: 

We see it all the time, Kash. Look, the easy solution here is for people to put their heads together and come up with settlements that work and make sense, but ICBC has not been doing that. They take a look at a file, they come up with a number that doesn’t make sense, and then they push things towards trial. You’re absolutely right; nine times out of ten when these cases go to trial, ICBC ends up paying a lot more than they would have if they just settled outside of court.

Kash: 

I don’t understand that. Are they dealing with in-house lawyers or do they have “defend their position” outsourced?

Manjot:               

It’s a little bit of both. There’s a lot of in-house lawyers that they use, and they use external lawyers as well. You got to understand that a lot of times, these defense lawyers, the ones that are defending the claim, they’re not the ones to blame. They actually give advice to ICBC saying, “You should settle this.”

Kash:                    

So who makes the decision? This is where I want to go because I was surprised and talking to someone that I know very well and I mentioned you. John Cameron was a colleague of mine in [placing 04:00] and now he has a personal injury practice also, was telling me that it’s not the lawyer that’s representing ICBC making the decision.

Manjot:               

Yeah, you’re right, Kash. Let’s just use simple numbers. Let’s say the defense lawyer tells ICBC, “Look, you should settle this case for $15,000.” They tell the adjuster that, and the adjuster completely ignores that advice because the adjuster has to go to his or her manager, and then oftentimes as you get closer to trial, they have to work by a committee and come up with a range in which they can settle the claim. Oftentimes, that range is less than what the lawyer, their lawyer, recommending.

Kash:                    

So the lawyer’s not part of the committee who would make the decision at the end of the day?

Manjot:               

Look, I’ve never been a part of those committees so it’s hard for me to say-

Kash:                    

So you’ve never acted for ICBC?

Manjot:               

I’ve never acted for ICBC, but my understanding is as you get closer to trial, the defense lawyers do partake in those committees. Again, whether they’re telling the adjuster over the phone that, “You should settle this case for $10,000” or whether they’re telling the entire committee, the advice is oftentimes completely ignored. ICBC says, “No, we should be settling this for $9,000.” Then you end up going over trial, and at trial, the judge awards $15,000. That’s where these additional costs come in.

Kash:                    

So if they go based on principle or based on a policy that “we’re not going to settle outside; we’re going to use the very expensive legal system to deal with it, and we’re going to roll the dice there,” they really don’t care because they go back to the Utilities Commission and they get that increase each and every time, Manjot.

Manjot:               

Absolutely, absolutely. That’s the unfortunate thing here, is that they are willing to spend the extra money going to trial. What they do in return is they increase premiums, and they go to the Utilities Commission and they get that approved. That’s what we’re dealing with and that’s the unfortunate circumstance that exists currently. The problem that I have, Kash, is that they blame increase claim [clause 06:03]. Claim clause have increased, there’s no doubt about that, but not to the extent that they’re making it out to be to justify the increased premiums.

Kash:                    

Well, this is concerning. You’ve got Barry Penner, now chair of the ICBC board. I sat with him in government. He should get it, he should understand it. He shouldn’t be a political hack for government on this and realize that he’s a lawyer. He’s a trained lawyer. You need to work within what is reasonable for not only the people that are making a claim, but what’s reasonable for the taxpayers because again, at the end of the day, we’re taxpayers. I’ve got a reported 2,300 pedestrians hurt in BC car crashes every year. 70% in metro Vancouver. How does that work in a pedestrian making a claim?

Manjot:               

Well, it’s no different than making a claim if you were operating a motor vehicle. You were hit, you’re not to blame. You have a valid claim.

Kash:                    

Let’s say someone’s cross-walking. I pay particular attention. I don’t like the attitude of drivers here in British Columbia, and I pay particular attention when I’m crossing a road, crossing a crosswalk, stopping even going through an intersection looking to see if someone’s not driving through the intersection. Let’s just say with the technology we have, someone’s in a crosswalk using a mobile device and they are hit by a driver.

Manjot:               

Well, it depends on whether or not they have the right of way. If you have the walk signal, then the driver should not have hit you, even if you’re on a mobile device. Essentially if you’re a pedestrian and you have the right of way, you have a valid claim. Where you get into trouble as a pedestrian who’s hurt is if you’re jaywalking, or if you’re entering the intersection when you have the orange hand and you don’t have the right of way. That’s when you may or may not have a claim.

Kash:                    

It’s alarming. 2,300 pedestrians hurt in BC car crashes. That’s incredible. 70% in metro Vancouver. What do you think? You’ve been involved in this litigation for quite a period of time. What is the most profound reason why we have such (…)? Is it because we’re a transportation [system 08:29]? Is it because of the fact that we’re not paying particular attention? We’re going to take a quick break on Pulse FM, but coming back, I’ll ask you to answer some of those questions to give our listeners a bit of an idea, next on Pulse FM.

2,300 pedestrians hurt in BC car crashes every year, 70% in metro Vancouver. Manjot, why do you think that is? You’ve been involved in this from a litigation point of view for quite a period of time. Why do we have such an incredible amount of pedestrians hit by cars in BC? Is it because there are transportation systems? Lack of transportation systems? What is it? Technical devices or what?

Manjot:               

That’s definitely one of the reasons, is the lack of infrastructure here in metro Vancouver, the lack of a proper and functioning transit system if I can say so but there’s other reasons as well. The increased population in metro Vancouver. It’s way more congested than it was 10 years ago, and there’s a lot of new drivers as well. People who are not necessarily trained as well as it used to be in how to operate a motor vehicle. The third and perhaps the biggest factor here is distracted drivers.

Kash:                    

Yes.

Manjot:               

You had mentioned pedestrians using their mobile device, but the real issue is the person operating the vehicle using their mobile device. It’s a huge issue.

Kash:                    

I brought in that law here in British Columbia, and part of that was prevention work done on it so people would apply the logic the same way they do with seatbelts. Very young kids put their seatbelt on at a very early age, and it kind of just goes in. It’s natural for you to get in the car and put your seatbelt on. That was the prevention and education we wanted to put in place, but this going on, just increasing the fines or something like that, it doesn’t really appear to be making a significant difference in the amount of distracted drivers we have out there.

Manjot:               

I think the better analogy is drinking and driving. I think that’s a better analogy when it comes to distracted driving as opposed to putting on a seatbelt because it’s temptation. It’s people doing something that they want to do and then ignoring the rules completely. That’s what’s going on here. People want to use their cellphone. People want to respond to text messages, they want to respond to emails. When you sit in a car and you put your seatbelt on, there’s no trade off. People don’t think, “Oh, I’m giving something up by putting this seatbelt on,” but when you put your phone away or you put it in the passenger seat and ignore it, you’re giving something up. You’re giving up your connection to people that you want to respond to.

Kash:                    

Well, so like drinking and driving, that’s no longer an acceptable behavior in society and we just admonish people that do it. That’s from a very early age, kids in school and stuff like that. Do we need the same thing with distracted driving. “You don’t do that. You don’t pick up your phone when you’re in your car,” almost like drinking and driving.

Manjot:               

Absolutely. It has to have the same stigma as drinking and driving. Look, you’re out at a bar. You drove there, you have four or five beers. Most of your friends are going to say, “Hey look man, you shouldn’t be driving right now. You should put your keys away. Find a designated driver.” I, of course, wouldn’t find myself in that situation, but that’s the kind of advice that you’re going to get from your friends. If you’re sitting at the bar, you’re having an argument with your girlfriend, your husband, whatever the case may be, and you’re texting the whole night, no one’s going to say to you, “Hey-

Kash:                    

“Put your phone away.”

Manjot:               

“Maybe you should put your phone away before you get in your car. Maybe you should think about that.” Those discussions don’t take place. We need to make it happen.

Kash:                    

That’s part of the change of a societal behavior in this area. I’m one to think that it’s not a real deterrent to increase it to what they’ve increased it. Let’s talk a little bit about fraud cases because this garnishes headlines throughout the region, throughout the province when in fact, ICBC discloses that they’ve got a fraud that has taken places for a period of time. How much does that impact our rates?

Manjot:               

You know what? The real question is does it really exist to the extent that they make it out to exist. ICBC will oftentimes find something that they think is questionable, and they’ll label it “fraud.” Nine times out of ten, that’s not the case. They’re calling lots of things fraud these days that shouldn’t be considered fraud. They’re saying someone who’s taken an extra day off work, maybe that’s fraud. Someone who is doing something, or trying to go back to the gym and they’re caught going back to the gym, they’re saying that’s fraud. That’s not fraud at all. That’s just a normal course of a claim. People are out of commission for a period of time, and they do their best to get back on their feet. That’s not fraud.

Kash:  

So they think you’re well enough. You don’t have a claim with ICBC.

Manjot:               

Exactly.

Kash:                    

You’ve got that commercial that they’ve been running of the guy out on his mountain bike and they’re all watching him on their computer screens at supposedly at an ICBC office, but when you start to put that out there, it’s almost saying to everyone that has a claim against ICBC, “If you can go back to some regular activity, it’s a fraud.”

Manjot:               

Exactly, and that’s an extreme case as well that they portrayed in that advertisement.

Kash:                    

I wonder if that’s an actual case. What, to sensationalize the fact that you’re out there?

Manjot:               

It totally does. That’s not what happens. What happens is people try their best to get back on their feet. ICBC will take the position that as soon as you do something like that, that’s it. You shouldn’t be entitled to any further compensation for wage loss or whatever the case may be. You’re absolutely right; they’re sensationalizing this. They’re making this to be a much bigger issue than it actually is. The end game, in my opinion, is to prevent people from retaining lawyers. Prevent people from exercising their right. If you’re paying this much in premiums, as everyone is these days, on the other side of it, if you’re injured in a motor vehicle accident, you should be entitled to compensation. Entitled to fair compensation.

Kash:                    

Let’s talk a little bit about how you’re treated when you file a claim with ICBC.

Manjot:               

Well there’s two different things, Kash. There’s filing a legal claim, which you have to do within two years of an accident, and of course you’re going to need a lawyer to do that. Then the other thing is just advising ICBC that you’re presenting a claim for personal injury. That’s done either on your own or with the assistance of a lawyer. That’s the process that-

Kash:                    

But how do they look at it? If you’re in a serious car accident or you’ve got a claim you want to make to ICBC, should you try and do it yourself or should you go to a lawyer to help you or assist you in it?

Manjot:               

Well, it’s unfortunate that doing it yourself is not going to lead to a just result. What I tell my clients is, my job is not to try to get more than you deserve from ICBC. It’s to try to get a fair settlement form ICBC. What you deserve according to the law, according to this jurisdiction. Unfortunately, if you don’t have a lawyer, there’s very little chance that you’re going to achieve that result.

Kash:                    

At what point should you consider getting a lawyer? Initially, I think you make a phone claim to start and then you go from there. Should you go and should you meet with the adjuster? Should you meet with ICBC people? Should you talk to them? A lot of people don’t know what the process is or what they should be doing.

Manjot:               

My advice is that you should consult with a lawyer right away. You shouldn’t even report the accident to ICBC. Here’s what happens, Kash: you start giving ICBC information. They note everything down, and they begin using that information against you. The unfortunate situation that exists in this province is ICBC should be evaluating claims on their merit and compensating those who are injured, but instead, you get into this adversarial situation with them right away, the minute you report your claim. The minute you say you’ve been injured, they start questioning it. They start noting where you said you’ve been injured. If you say, “I’ve been injured, my neck and back hurts,” and 10 weeks later, “Well you know what? A week after the accident, my leg started hurting as well,” they’ll use the notes that they got right after the accident saying, “Well after the accident, all you said was neck and back. Now you’re complaining about your leg? That can’t be related to the accident.”

You have to be very careful in your dealings with ICBC. You have to be very careful what you say to them. Frankly, most people don’t have the expertise to have those conversations with ICBC, so they should be consulting a lawyer from the onset.

Kash:                    

Your law firm Warnett and Hallen, where’s that located?

Manjot:               

It’s in Vancouver. We just moved downtown. We were in Kitsilano but we’re on the corner of Robson and Granville now. It’s right across from the Nordstrom’s Pacific Center.

Kash:                    

Okay, and your website?

Manjot:               

It’s www.warnetthallen.com.

Kash:                    

Easy one to remember. Warnetthallen.com. One last concern I want to talk to you about, and this came out in a court case recently where the ICBC lawyers did not disclose what they had on a particular case. They, using my term, “cherry-picked” what they were actually going to bring forward in the court process. How troubling is that in our legal system?

Manjot:               

Well, I’m troubled by that case, Kash, but I’d like to believe it doesn’t happen very often. That’s an anomaly. The rules are that whatever information you have in your possession-

Kash:                    

Hey, you’re a lawyer! What do you mean “you don’t think happens that often?”

Manjot:               

Well, the law is that whatever you have in your possession related to material fact has to be produced. I’d like to believe that lawyers abide by those rules.

Kash:                    

But it didn’t happen this time.

Manjot:               

Like I said, that is an anomaly. I’m not going to suggest that ICBC or their lawyers do anything to the contrary, that they do produce the documents that should be producing.

Kash:                    

Well, I think it was Ian [Malgrew 18:57] that wrote on that one. It’s interesting; it troubled me.

Manjot:   

It troubles me as well.

Kash:   

I think it troubled a lot of people, but again, you have to wonder what is going on in the policy room at ICBC. What is going on in the committee? What is going on in the boards that are sitting to decide these?

Manjot:               

I agree. A lot of the increased cost of premium is because of the inefficiencies at ICBC. Yes, there have been increased claim costs, but that’s not the single factor that’s increasing premiums. Yes, there’s increased repair costs, but again, that’s not the only factor that’s increasing premiums. It’s a lot of the inefficiencies at ICBC. The fact that they’re pushing things towards trial, the fact that they’re spending more on their lawyers when they could come up with a better result without all of that.

Kash:                    

Well, they’re a bit of a cash cow for government because they’re taking from the taxpayers the people that are buying their policies to insure their vehicles. At the same time, they’re giving money back. Usually that’s from the optional insurance side of it, which they not necessarily have a monopoly on, but they’ve got a key area because it’s a one place shop rather than trying to get private insurance coverage.

Manjot:               

Absolutely, and I think it’s just wrong to be blaming everything on fraud and increased claims. That couldn’t be further from the truth. What’s happening is they’re essentially saying that you should pay these increased premiums, but when you’re injured, you shouldn’t exercise your right to have fair compensation. That’s what it sounds like.

Kash:                    

Well concerning Manjot, pleasure to have you in the studio. Look forward to having you back in the studio to talk about these issues and to make sure we hold ICBC accountable.

Manjot:               

Thanks, Kash.