Date Issued: June 23, 2020

File: SC-2020-000785

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Tarrant v. ICBC, 2020 BCCRT 695

Between:

DON TARRANT

Applicant

And:

INSURANCE CORPORATION OF BRITISH COLUMBIA and
JOHN DOE

Respondents

INTRODUCTION

1.      This small claims dispute is about insurance coverage for alleged “hit and run” vehicle damage. The applicant, Don Tarrant, says the respondent insurer, Insurance Corporation of British Columbia (ICBC), incorrectly determined that his vehicle damage was not from a hit and run. Mr. Tarrant wants ICBC to pay $1,900 for his vehicle repairs.

2.      Although the applicant did not identify John Doe’s role in this dispute, I infer this respondent was included to represent the unidentified owner of the vehicle that Mr. Tarrant says struck his vehicle.

3.      ICBC says its estimator and managers properly determined the damage was not the result of vehicle to vehicle contact.

4.      Mr. Tarrant is self-represented. ICBC is represented by an employee.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.      The CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

7.      The CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUES

9.      The issues in this dispute are:

a.    Did ICBC reasonably investigate and assess how Mr. Tarrant’s vehicle was damaged, and

b.    Whether Mr. Tarrant’s vehicle was damaged in a hit and run accident.

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the applicant Mr. Tarrant must prove his claim on a balance of probabilities. I have only referenced the evidence and submissions as necessary to give context to my decision.

11.   Mr. Tarrant says that he parked his vehicle in the middle of a large parking lot, away from other cars, on September 20, 2019. He says when he returned to his vehicle 20 minutes later, he found a black scuff mark on the left front bumper, and the bumper was pulled away from the fender. He says that his vehicle was not damaged when he parked the car. Mr. Tarrant says that he immediately drove his car to a dealership for assessment and contacted ICBC to report a hit and run.

12.   Section 24 of the Insurance (Vehicle) Act (IVA), sets out remedies available for hit and run accidents. By definition, a “hit and run” involves contact with a second vehicle. ICBC’s evidence included notes from 4 employees who each reviewed Mr. Tarrant’s file. Their notes are summarized as follows (my bold emphasis added):

a.    On October 3, 2019, a material damage manager, RD, noted the damage to Mr. Tarrant’s vehicle was coarse and abrasive. RD suggested the damage occurred when the lower bumper cover impacted a low curb or median-like object, and that the bumper cover was torn away from the vehicle when backing away from a stationary object.

b.    On October 3, 2019, a hit and run estimator, LM, noted the vehicle damage is not consistent with vehicle to vehicle contact. Specifically, LM noted the damage was consistent with hitting a stationary object, the scraping was abrasive, and the damage was too low for vehicle impact. LM also concluded the bumper was torn away from vehicle when backing away from a stationary object.

c.    On October 7, 2019, another material damage manager, DF, reviewed Mr. Tarrant’s file and photos. DF noted the vehicle damage was not consistent with vehicle to vehicle impact, and there was very coarse gouging to the lower bumper cover that runs underneath the cover. DF concluded the impact tore the cover away from the left fender as the vehicle backed off an object, and that it is not physically possible for another vehicle to have caused the damage.

d.    On February 14, 2020, a material damage operations manager, LK, reviewed all photos and agreed there is no evidence of vehicle to vehicle contact. LK noted the damage is very coarse, with gouging, and is very low under the lower cover lip, travelling underneath the front bumper and contacting the splash shield. LK noted it appeared the damage was sustained back to front, and that the bumper torn away from the left front fender confirmed this direction. LK concluded there is no possible way another vehicle could have done this damage.

13.   Based on these assessments, ICBC determined the damage to Mr. Tarrant’s vehicle was not caused by a vehicle to vehicle impact and denied Mr. Tarrant’s IVA section 24 hit and run claim.

Did ICBC reasonably investigate and assess the damage to Mr. Tarrant’s vehicle?

14.   ICBC owes Mr. Tarrant a duty of good faith, which requires ICBC to act fairly, both in how it investigates and assesses a claim and as to its decision about whether to pay the claim: see Bhasin v. Hrynew, 2014 SCC 71 at paras. 33, 55, and 93. As noted in the Continuing Legal Education Society of BC’s ‘BC Motor Vehicle Accident Claims Practice Manual’, an insurer is not expected to investigate a claim with the skill and forensic proficiency of a detective. An insurer must bring “reasonable diligence, fairness, an appropriate level of skill, thoroughness, and objectivity to the investigation and the assessment of the collected information”: see McDonald v. Insurance Corp. of British Columbia, 2012 BCSC 283.

15.   Mr. Tarrant says ICBC did not properly assess his vehicle’s damage because it relied solely on photographs taken by an auto body shop rather than inspecting the vehicle in person. He also says ICBC should have investigated whether there were any cameras nearby that captured the collision and that ICBC should have allowed him to take a polygraph test to prove that he is not being dishonest.

16.   ICBC says that the vehicle pictures were taken by an ICBC express auto body shop that is qualified and trained to take detailed photos and measurements. It says the photos taken in this case were sufficient for several employees to properly assess the damage to Mr. Tarrant’s vehicle and that viewing the vehicle at a claim centre would not add value. The evidence shows the body shop provided ICBC with at least 57 photos of Mr. Tarrant’s vehicle, several of which clearly show the scuff marks on the left front bumper and the other damage Mr. Tarrant claims. I find that the photos show the height, location, and quality of the damage so ICBC could fairly investigate how the damage occurred. Therefore, I find it was not necessary for ICBC to view the vehicle in person in order to discharge its duty of good faith.

17.   There is some dispute about the availability of video footage. ICBC says it did not make any inquiries about cameras in the area where Mr. Tarrant says his vehicle was damaged because Mr. Tarrant gave a statement that there were “no cameras around that would have seen the incident”. Mr. Tarrant disputes, or does not recall, saying this. However, the evidence shows that Mr. Tarrant provided ICBC with a signed statement that does say this. I find it was reasonable for ICBC to rely on Mr. Tarrant’s signed statement.

18.   As for Mr. Tarrant’s offer to take a polygraph test, ICBC says it is not typical to perform polygraph tests in their claims handling process. I note that while ICBC initially determined that Mr. Tarrant provided a willfully false statement about how the damage to his vehicle was caused, it has decided not to pursue that allegation on the basis that it could not determine that Mr. Tarrant would have felt the impact that caused the damage. Therefore, I find that Mr. Tarrant’s credibility is not in issue and a polygraph test would not be of assistance in investigating the cause of Mr. Tarrant’s vehicle damage. So, I find ICBC acted reasonably in not pursuing a polygraph test.

19.   Mr. Tarrant argues that ICBC breached sections 73 and 74 of the Insurance (Vehicle) Regulations (IVR) in failing to inspect his vehicle and not assisting him to investigate the incident properly. For the following reasons, I disagree.

20.   Section 73 of the IVR says that, among other things, an insured must cooperate with ICBC in the investigation of a claim and must allow ICBC to inspect an insured’s vehicle or its equipment at any reasonable time. This sets out Mr. Tarrant’s obligation to cooperate with ICBC. Contrary to Mr. Tarrant’s submissions, it does not mean that ICBC is required to inspect an insured’s vehicle.

21.   Section 74 of the IVR requires that, upon notice of a claim for damages against an insured, ICBC must assist the insured by investigating and negotiating a settlement, and by defending the insured. This means that ICBC must assist with investigating if a claim is brought against Mr. Tarrant. It does not describe ICBC’s obligation to investigate Mr. Tarrant’s claim against an unknown driver.

22.   While I acknowledge that Mr. Tarrant disagrees with ICBC’s determination that his vehicle damage was not caused by a hit and run, I find he has not shown that ICBC breached its statutory or contractual obligations. Therefore, I dismiss this aspect of Mr. Tarrant’s claims.

23.   I turn now to my own fresh assessment of whether Mr. Tarrant qualifies for hit and run coverage under section 24 of the IVA.

Was Mr. Tarrant’s vehicle damaged in a hit and run?

24.   Despite my decision about ICBC’s investigation above, I must consider whether Mr. Tarrant has proved on a balance of probabilities that his vehicle was damaged by another vehicle. Based on the evidence before me, I find that Mr. Tarrant has failed to meet this burden. My reasons follow.

25.   In support of his position, Mr. Tarrant prepared his own statement offered as an “expert opinion”. Mr. Tarrant says he was a 36-year member of the Royal Canadian Mounted Police (RCMP) and worked as a collision analyst for 12 years, which included giving expert opinion testimony in court proceedings. While CRT rule 8.3 permits a party to rely on an expert opinion under certain circumstances, it says the expert is to assist the tribunal and not to advocate for any party in a dispute. In other words, it must be an independent expert opinion to be admissible. Given that Mr. Tarrant is a party, I find that he is an advocate for himself and I cannot accept his evidence as a true “expert opinion”. Nevertheless, I accept that Mr. Tarrant may have more knowledge and experience than the ordinary lay person about vehicle damage and will weigh his submissions accordingly.

26.   Mr. Tarrant argues that there are no curbs or other medians in the parking lot where his vehicle was located when it was damaged. However, Mr. Tarrant did not provide any photographs of the parking lot to support his position. Further, while I accept that Mr. Tarrant first noticed the damage and assumed it occurred while parked in that lot, I find based on the photographs in evidence that the damage was not so significant that Mr. Tarrant would likely have seen it before he parked. In other words, I am not satisfied that it is more likely than not the vehicle damage was sustained while it was parked in that specific lot.

27.   Mr. Tarrant argues that something rubbed against the side of his bumper, at a 70 cm height, leaving a scuff and causing the bumper to pull away from the fender. ICBC disagrees, saying that the bumper was torn away by backing off a stationary object. I find Mr. Tarrant’s version does not explain the scrapes underneath the bumper. Without any additional evidence, I find Mr. Tarrant has not proven that his bumper was pulled away by something rubbing against the side of his car.

28.   Mr. Tarrant says that the damage to the bottom left bumper area is one-directional, from rear to front, and argues there would be two-directional scraping if the vehicle was driven up onto a curb and then reversed off. However, this is only one factor and does not address the ICBC estimator and managers’ observations that the scraping was coarse and abrasive, which I infer is inconsistent with damage from another vehicle.

29.   Further, the estimator and managers say and that the damage’s location was too low to have been caused by another vehicle. Mr. Tarrant admits he “cannot determine what caused the damage” to his vehicle. He suggests that the scrapes under his front bumper could have been caused by a box delivery truck that drove by with its hydraulic lift lowered or by a utility trailer with a drop-down tailgate. However, he acknowledges that this is “speculative” and that it is “impossible” for him to say what kind of vehicle caused the damage to his car.

30.   Weighing all the evidence before me, I find ICBC’s evidence more persuasive on the issue of what caused the vehicle damage. While the estimator and managers’ notes are not expert evidence under the CRT rules because I do not have their qualifications before me, I accept their evidence about the likely cause of the vehicle’s damage given their roles and experience, which are not in dispute. I place particular weight on the fact that 2 of the ICBC managers noted that it is physically impossible for another vehicle to have caused the damage. Mr. Tarrant provided only self-described “speculative” explanations for how another vehicle could have caused the damage. Therefore, I find that Mr. Tarrant has not met the burden of proving the damage was caused by another vehicle, and I dismiss his claims.

31.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. Mr. Tarrant was unsuccessful and so I dismiss his claim for tribunal fees.

ORDER

32.   I dismiss Mr. Tarrant’s claims and this dispute.