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Insurance Company to Pay $350,000 in Punitive Damages for False “Injury Fraud” Accusation

Posted on by Mussio Goodman

The BC Supreme Court has ordered ICBC to pay an injured claimant more than $350,000 due to the corporation’s ‘malicious’ and ‘odious’ false accusations of making a fraudulent injury claim.

Yesterday’s decision in Arsenovski v. Bodin 2016 BCSC 359 underscores the court’s strong discontent for malicious prosecution by ICBC over perceived fraud cases. Substantial damages were awarded to the plaintiff including $350,000 in punitive damages against ICBC.

In January 2000, Mrs. Arsenovkski (the plaintiff) and her husband were crossing an intersection in Burnaby when a left turning car struck Mr. Arsenovski. Mrs. Arsenovski also fell in the intersection and suffered bruising.

The Arsenovskis reported the accident to ICBC and signed an initial statement. In the following months, an ICBC special investigator submitted a report to Crown Counsel (RTCC) recommending that multiple criminal charges be laid against the Arsenovskis for advancing a fraudulent claim.

Acting on this advice, Crown Counsel charged Mrs. Arsenovski with the offence of making a false statement contrary to the Insurance (Motor Vehicle) Act, which was eventually thrown out.

Mrs. Arsenovski sought to hold ICBC, its adjuster (Mr. Bodin) and its special investigator (Mr. Gould) accountable for malicious prosecution, claiming that they intentionally misstated evidence to advance a criminal charge against her. Ruling in favour of Mrs. Arsenovski, Madam Justice Griffin stated:

[384] Not only were the public resources of ICBC wasted by the malicious prosecution of Mrs. Arsenovski, it was foreseeable that this would lead to wasting of the public resources of Crown counsel and judicial resources on the day the case came to trial. Mr. Gould also encouraged other public agencies to take action against her without reasonable grounds to do so, namely health and immigration authorities. The wasting of such public resources to so vindictively pursue Mrs. Arsenovski is deserving of the highest level of condemnation.

[395] While the community would find it reasonable for ICBC to fight fraud, I am confident that the residents of British Columbia would find it outrageous for a public corporation to use its resources maliciously. The conduct that occurred here must be condemned and punished to reflect the community’s censure and to ensure that the message is brought home to the corporation and its employees not to engage in this kind of misconduct again. The residents of British Columbia are entitled to expect professional, objective treatment by the employees of ICBC, as well as an appropriate degree of cultural sensitivity towards people who are recent migrants from other countries.

In her conclusion Madam Justice Griffin further denounced ICBC and the outrageous conduct by the special investigator involved in the malicious prosecution of the plaintiff:

[423] What happened to Mrs. Arsenovski was odious: a newcomer to a strange country, unable to communicate in the local language, she experienced the shock of seeing her husband hit by a car and she fell down too. Having experienced this upsetting event, still worried about her husband’s health, and having reported minor injuries to ICBC, she then experienced the wrath of ICBC and its special investigator, Mr. Gould.

[424] Mr. Gould, acting as an ICBC SIU investigator, submitted an RTCC recommending that Mrs. Arsenovski be charged with making a false statement, and she was so charged. He was motivated to dissuade civil claims against ICBC. He did not have objectively reasonable grounds for believing that Mrs. Arsenovski had committed an offence. He did not have a subjective belief in her guilt.

[425] Mr. Gould’s RTCC was materially misleading. I have concluded his conduct amounts to an abuse of his office, and that he and ICBC are liable to Mrs. Arsenovski for the tort of malicious prosecution.

[426] The malicious prosecution brought fear and shame to a vulnerable person. The criminal charge against Mrs. Arsenovski was only stayed on the day of the criminal trial. The stain she feels on her character as a result of being charged criminally might never be erased.

This judgement is a clear rebuke to ICBC for using intimidation tactics to suppress civil injury claims and for being far too overzealous in cases they may think are fraudulent.

Court Declares Insurance Company’s Conduct as “Ill-Advised” and “Unfair”

Posted on by Mussio Goodman

As previously discussed, you can make a claim for damages against ICBC if you are injured in a hit-and-run accident.  In order to make such a claim, s. 24(5) of the Insurance (Vehicle) Act requires that the victims of hit-and-run accidents make “all reasonable efforts” to find and identify the at-fault driver.

The courts have considered what it takes to make “all reasonable efforts” on numerous occasions, declaring that it usually requires at least: posting signs and advertisements looking for witnesses, speaking to people who live or work near the accident site, reporting the accident to the police and following up with them, and reporting the accident to ICBC.  Depending on the circumstances, further steps are often needed. We recently went to a trial on a case that addressed these very issues; the results can be found here.

Essentially, the Insurance (Vehicle) Act requires that you play “detective” when you are the victim of a hit-and-run accident, despite the fact that you are the wronged party.  If you fail or refuse to play “detective” (or if you do not play “detective” well enough), your claim will be dismissed.

The most common reason people fail to make “all reasonable efforts” is that they simply do not know such efforts are required.  In our experience, few hit-and-run victims know how to protect their claim without clear and specific guidance.  The necessary steps are not always intuitive or obvious.

Adding to this problem is the fact that ICBC has been known to provide incomplete and/or incorrect advice to victims of hit-and-run accidents.  Even ICBC’s official hit-and-run victim brochure provides significantly deficient information about what victims of hit-and-run accidents are required to do.  In particular, this document suggests that merely reporting the hit-and-run accident to the police and to ICBC is sufficient to “make a hit-and-run claim”.  It makes no mention of posting signs, posting advertisements, or knocking on doors, all steps that are regularly considered to be part of the “all reasonable efforts” test.

One might assume that that simply following ICBC’s advice should be enough protect their claim, whether or not this advice is complete and correct.  This is not the case.

This was expressly confirmed in the recent case of Fitger v. Doe, 2015 BCSC 1855.  Here, the plaintiff was in regular contact with ICBC after his hit-and-run accident and followed the advice of the ICBC adjuster handling his claim.  After a long period of acting as though the plaintiff’s claim was valid, ICBC subsequently sought to dismiss the plaintiff’s claim on the grounds that he had failed to make “all reasonable efforts”.

The court commented that this seemed to be in line with ICBC’s apparent “practice of not advising claimants of their obligations [under the Insurance (Vehicle) Act], despite comments from the court about the unfairness that is apparent when lay people place reliance on claims being processed as if valid, and then [belatedly invoking] s. 24(5) if settlement is not reached”.

The plaintiff argued that ICBC should not be permitted to take this position.

Unfortunately, while the court agreed that ICBC’s tactics were “ill-advised from a public interest perspective” and “unfair” from the plaintiff’s perspective, it nonetheless concluded that ICBC was still entitled to continue seeking a dismissal of the plaintiff’s case under s. 24(5).

The fact that ICBC provided the plaintiff with deficient advice about making “all reasonable efforts” and arguably lured him into a false sense of security about the strength of his claim afforded him no protection in these circumstances.

If you have been injured in a hit and run accident, contact Mussio Goodman to ensure all statutory requirements are met so your claim is not at risk of being dismissed.   It is strongly recommended that you do not simply rely on ICBC’s advice in these situations.

 

Mussio Goodman Files Class Action Lawsuit Against Volkswagen

Posted on by Mussio Goodman

In the wake of the international scandal surrounding Volkswagen which led to the resignation of its CEO this morning, Vancouver law firms Mussio Goodman and Branch MacMaster LLP have teamed up to file a proposed class action lawsuit in the Federal Court of Canada against Volkswagen Group Canada Inc.

The lawsuit alleges a breach of certain provisions of the Competition Act and of the Canadian Environmental Protection Act as a result of certain diesel engine vehicles that were intentionally equipped with a device that allowed Volkswagen to “cheat” the emissions tests and market, sell or lease vehicles that would otherwise fail regulatory requirements.

In particular, the lawsuit alleges that Volkswagen widely promoted its diesel vehicles as having a clean burning engine while being more powerful and better performing vehicles than their gasoline counterparts. Those representations, it is alleged, allowed Volkswagen to charge a premium of thousands of dollars for vehicles equipped with a diesel engine when compared to the gasoline versions of those vehicles.

The lawsuit goes on to allege that these vehicles in fact emitted up to 40 times the allowed level of pollutants under Canadian law, rendering the vehicles worthless in the marketplace. The lawsuit also seeks punitive damages for Vokswagen’s conduct, which is alleged as “high-handed, reckless, deliberate and disgraceful.”

The representative plaintiff in the class action, Mr. Hanson, alleges that he selected and ultimately purchased his 2015 Volkswagen Golf TDI because of the “CleanDiesel” system, as represented through advertisements and representations made by Volkswagen. Eric Goodman, co-counsel for Mr. Hanson, stated that “our client is distraught by the fact that he paid a premium price for a car that, as it turns out, was falsely advertised as cleaner and more powerful. We have no doubt that there are thousands of Volkswagen owners across the country who feel the same way.”

In fact, it is estimated that there are in excess of 100,000 vehicles affected in Canada. The current understanding is that the affected vehicles include the following diesel models:

2009 to 2015 VW Jettas
2009 to 2015 VW Beetles
2009 to 2015 VW Golfs
2012 to 2015 VW Passats
2009 to 2015 Audi A3s

We suggest that if someone purchased or leased one of the affected vehicles, they may be part of the class if the action is certified as a class action.

If they would like to receive direct updates or notifications in this proceeding, they can let Mussio Goodman know by contacting them directly at amy@mussiogoodman.com or (604) 336-8000.

In the meantime, we suggest that all potential class members retain any documents they have regarding the purchase or sale of their vehicles, or any repairs effected to bring the vehicles within emission compliance standards. Those documents may be necessary at a later stage of the proceedings.

 

Court of Appeal Grants Our Client a New Trial, Overrules Insurance Company Victory Due to Unfair Tactics

Posted on by Mussio Goodman

We are pleased to announce that the British Columbia Court of Appeal has ruled in our client’s favour in Han v. Park 2015 BCCA 324.

In 1999, our client was involved in an car accident which caused significant injuries and substantial wage loss over the following years.

Prior to hiring our firm, she was represented by another lawyer during her initial trial in 2013. Unfortunately, and in part to several strategic and legal mistakes, our client was awarded only a fraction of what she sought, and what her claim is actually worth.

Understandably, our client sought to challenge what she believed was a miscarriage of justice. We agreed to help and successfully appealed the jury’s decision to the BC Court of Appeal on several grounds.

The Court of Appeal agreed that the trial judge was in error by allowing the jury to read several documents that were largely irrelevant to her case and only served to prejudice our client. It is not unusual for an ICBC defense lawyer to attempt such tactics, but unfortunately our client’s previous lawyer did not raise any objections.

However, we argued and the Court agreed that the trial judge should have properly exercised her function as a gatekeeper and prohibited such inflammatory evidence from being viewed by the jury. The Honourable Madam Justice Stromberg-Stein, writing for the unanimous three-judge panel, ruled as follows:

[34] …The inclusion of some of the clinical records and material contained in the Exhibit had the effect of portraying the appellant as a difficult, manipulating, and stubborn individual. As appellant’s counsel states, this portrayal shifted the focus of the jury to the appellant’s negative character traits, rather than to the main issues of the trial.

[35] The respondents’ trial counsel assured the judge all the documents in the Exhibit would be referred to in the cross-examination of Ms. Han but they were not. Some of the documents were irrelevant, some were prejudicial, and some were inflammatory. The Exhibit was marked outside the presence of the jury – the trier of fact – which is an irregularity. There was no document agreement in place, so the basis for the appellant’s consent to the admission of the Exhibit is not clear. Even with consent, the trial judge is always the gatekeeper.

[36] In my view, the Exhibit should not have been admitted en masse. Some of the documents and records should not have been admitted at all, as their admission was highly prejudicial and resulted in a substantial wrong or miscarriage of justice.

[37] On this ground alone, it is in the interests of justice to order a new trial.

Our client has been fighting for fair compensation from ICBC for over 15 years, and we are proud to have played a supporting role in her journey. This case is also a reminder from the highest Court in our province that the unfair tactics employed by ICBC and their lawyers will not be tolerated.

The Perils of Using Social Media During an Injury Claim

Posted on by Mussio Goodman

We have long advised our clients to be careful about what they post on social media while in the midst of an injury claim. The reason is that we know ICBC’s adjusters and defence lawyers will review social media posts to see whether an injured person’s claims are supported by their behaviour on social media websites such as Facebook, Instagram, and Twitter.

A recent decision of the British Columbia Supreme Court highlights the importance of this advice.

In Tambosso v. Holmes, the plaintiff was involved in two car accidents, and her claim for damages arising for her injuries went to trial. She made a claim for her physical symptoms, but her most significant claims were for psychological injuries.

The trial judge found that while the plaintiff suffered some injuries, many of her claims about both her physical and psychological injuries were fabricated and she was not a credible witness. In coming to his conclusion about the plaintiff’s credibility, the trial judge relied heavily on entries from the plaintiff’s Facebook page.

The trial judge found that, “[t]hroughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed…

However, he went to state that, “[o]ne hundred and ninety-four pages of Facebook entries from [the plaintiff’s Facebook page…were entered in evidence… There are extensive status updates, photographs, and other posts…that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following [the accident].”

The trial judge examined status updates, photographs, and public messages between the plaintiff and her friends. In drawing extremely negative conclusions about the plaintiff’s credibility, the judge concluded his social media analysis as follows:

[174]     I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet”.

The lesson that should be taken from this case is the importance of minimizing your social media presence while in the midst of claim for personal injuries, because even if you are a completely honest and credible person, a seemingly innocent social media post could be used against you by ICBC.

Court Awards Our Client $98,700 At Trial After Insurance Company Offered Zero Dollars.

Posted on by Mussio Goodman

We are pleased to announce that, after ICBC refused to settle our client’s claim at any number, we proceeded to trial in the Supreme Court of British Columbia and obtained an award of $98,700 for pain and suffering, wage loss, and medical expenses.

In June 2009, our client was violently t-boned by an unknown vehicle that fled the scene. Our client was unable to note the license plate of the hit-and-run driver.

Despite suffering numerous injuries, missing work, and incurring significant medical expenses as a result of the accident, ICBC refused to offer any money for compensation.

Under the law, an injured claimant is still entitled to up to $200,000 in compensation from ICBC even though the identity of the hit-and-run driver is never found. However, the law first requires claimants to make “all reasonable efforts” to determine the identity of the hit-and-run driver. This requirement was discussed in one of our previous posts, “Hit and Run Accidents: What you Need to Know.”

In our case, ICBC relied on this technicality in attempt to deny our client any compensation.

After our client’s accident, he was in shock, his airbags had deployed in his face, it was dark out, and the at-fault motorist fled the scene almost immediately. He then relied on his passenger (who had an injury claim of his own) as well as his lawyer to post “Witness needed” signs near the accident scene, follow up with the police, and put an ad on Craigslist.

ICBC argued that because the client didn’t personally take these steps, he should be denied any compensation for his injuries.

After seven days of trial, Madam Justice Baker of the Supreme Court of British concluded that our client was entitled to rely on the efforts made by his passenger and his lawyer to ascertain the identity of the unknown driver:

 I am not persuaded [by ICBC], however, that a party may not rely on the actions taken by an agent or agents in order to comply with the statutory obligation.  In many circumstances, the claimant may be unable to personally take steps – because he or she has suffered a significant injury, for example, or is hospitalized following the accident.

Where there are a number of parties involved in an accident, each of whom is advancing a claim for damages, as in this case, it makes little sense to require that each of them personally post signs at the accident scene or post advertisements.

Madam Justice Baker went on to award significant damages to our client, as well as costs of the litigation.

If you have been injured in a hit and run accident, feel free to contact us to ensure all statutory requirements are met so your claim is not at risk of being dismissed.