Navigating the Legal Implications of British Columbia Cross-Border Accidents

For residents of British Columbia, crossing the border into the United States can be a regular, if not daily occurrence. Whether for travel to Washington, commuting for work, going on a day trip, or conducting other business, the reasons for doing so are wide and surprisingly common.  Many BC residents are even employed in the United States and thus make such a drive every work day.

While travel between British Columbia and Washington State is a simple process, complicated legal questions arise when a resident is injured in an accident that occurs across the border.  Questions surrounding how property damage will be handled, how injuries will be addressed, and how liability issues are determined are just a few of the common questions faced. If a death occurs in such an accident, that also presents complex legal issues.  

In addition, there are also issues about which law applies and how any legal claims will proceed in the event of a cross border accident. Such accidents also present unique jurisdictional issues and challenges on how to collect funds for damages and property damage that occurs on foreign soil.

How does insurance coverage apply when crossing the border?

Residents of British Columbia generally have insurance coverage under the ICBC insurance system.  Thus, this system will generally apply to cover such drivers.

Interesting questions arise as to how this insurance coverage applies when accidents by ICBC insured parties occur outside of the geographic area of British Columbia, and particularly on foreign soil.

If you are a resident of British Columbia and you are injured in a cross-border accident, it is very important to retain the services of an attorney who understands how the law applies to cross border accidents. It may also be necessary to negotiate settlements in both Canada and the United States.  There are also significant strategic advantages to negotiating a settlement in one country before the other. This is another reason that having competent legal representation is so important.

Which law applies?

When an accident occurs outside British Columbia, one of the complex issues is determining how the law is applied to the accident and also which law might apply.

The regulations that were enacted under British Columbia’s Insurance Vehicle Act provide very specific processes and rights and responsibilities that must be followed by drivers and passengers insured by ICBC.  

If there is an accident claim that involves an underinsured motorist (which is referred to as a UMP claim), the liability issues themselves, including claims for contributory negligence or comparative fault will be determined by the law of the jurisdiction where the accident occurred.

On the contrary, the amount or “quantum” of the damages will be determined by the laws of British Columbia.

It is very important that a claimant in such a foreign accident NOT accept any tort settlement or dismiss one of the tortfeasors unless and until the claim for UMP has been “perfected”.  There are two ways that a UMP claim can be “perfected”. Those include:

1) If a judgment is obtained that is larger than the applicable insurance policy limit;  

OR

2) If ICBC gives its consent to perfect a policy limits settlement;  The idea behind this is that until there is some type of legal determination that the driver who caused an accident was in fact “underinsured”, UMP coverage cannot legally be available.

The concept of “perfection” of UMP claims was discussed in the British Columbia case known as Beauchamp v. ICBC, (2005) B.C.C.A. 507.  This case provides that in order for someone to be deemed to be an “underinsured motorist”, he or she must, in addition to owning and operating the vehicle in question and having been determined to be legally liable for the death or injury of the insured party, be unable to pay the full amount of the injured party/insured party’s damages.  

Statute of Limitations for cross-border claims

In general, the statute of limitations for bringing negligence claims in British Columbia is 2 years from the date of the accident.  However, because of the UMP process mentioned above, the limitation period is generally not thought to begin running until after a determination is made that a driver is underinsured.  

In either case, it is still best to seek legal consultation as soon as possible after an accident to ensure witness availability and that the best information concerning the accident is preserved.

Commencing a cross-border claim

The process of starting a claim for UMP requires that a claimant and/or his or her attorney must attempt to negotiate settlement of the UMP claim before commencing formal legal processes.  If the negotiation process is unsuccessful, then a Notice to Arbitrate may be filed to begin the formal legal process.

Attorneys’ fee recovery

In general, British Columbia follows a “loser pays costs” rule which is a significant advantage to claimants if they prevail in the legal process.  This recovery can include legal fees and reasonable litigation expenses as well. There is a specific schedule of fees that is provided for in the Court Rules.  

An Arbitrator may not in the end award the full amount of the party’s fees, but arbitrators are granted a great deal of discretion to make such awards. This can certainly go a long way toward making a complete recovery for claimants involved in such accidents.

Conclusion

Accidents involving residents of British Columbia are a common occurrence in today’s mobile world.  If you are the victim of such an accident, it is important that you secure competent legal representation as soon as possible.  This will help to ensure that your legal rights are protected, that you navigate the processes correctly and that you obtain the best recovery that is possible under the circumstances.  

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