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Van Sprang v. Tweed

Decisions and Settlements, Personal Injury

Multiple Vehicle Accident Caused by 90 Year Old Driver: Mr. Van Sprang is a man in his 30’s with a young family and was a key person in his dad’s business which was a heating and cooling service company.  Mr. Van Sprang’s father had plans to hand over the business to his son when he reached his retirement age.  The work was physical and also required ingenuity and problem solving skills.  Mr. Van Sprang was the “muscle” of the company, doing the heavier tasks and the more physical tasks such as working within tight crawl spaces and attics.  Unfortunately, Mr. Van Sprang was involved in an accident whereby the defendant Mr. Tweed, failed to yield as he entered onto the Trans-Canada Highway at an intersection.  His actions forced a commercial truck driver to move over in his lane which in turn caused Mr. Van Sprang’s vehicle to spin out of control and end up on its roof at the shoulder of the road.  Mr. Van Sprang suffered soft tissue injuries which limited his ability to be as productive as he used to be, and also limited his ability to continue on in his role with the company.  ICBC denied liability for this accident, even though it seemed obvious that the actions of Mr. Tweed set in motion this serious accident.  This matter went to trial for eight days.  During that time ICBC strenuously argued that Mr. Van Sprang was at fault for the accident as he must have been driving too fast for the road conditions, and that it had nothing to do with the Defendant failing to yield.

The trial judge rejected this theory, and instead found that Mr. Tweed was indeed at fault for the accident.  The trial judge awarded close to $270,000.00 to Mr. Van Sprang.  This award reasonably assessed his damages for pain and suffering and loss of earning capacity.  It also vastly exceeded any attempts by ICBC to resolve the matter.  The trial was conducted by James Cotter and Allyson Edwards.

PDF: Van_Sprang_v._Tweed_-_Reasons_for_Judgement.PDF

January 15, 2021
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Kalashnikoff v. Halat – Russian Immigrant Injured in Head on Collision

Decisions and Settlements, Personal Injury

This was a claim that involved a man in his 60’s who spoke little English and had worked at manual jobs all his life.  Mr. Kalashnikoff was referred to James by his brother who was also a client.  Mr. Kalashnikoff was involved in a head-on collision with the defendant.  It appeared that the defendant had strayed across the yellow line and into Mr. Kalashnikoff’s lane of travel when the accident happened.  Unfortunately, ICBC denied liability even though the facts seemed to point clearly to the defendant being at fault.  Mr. Kalashnikoff was not able to express how this accident had really impacted his life due to his limited English.  James was able to bring out his story through his two adult daughters as to the change the accident had brought about in him, and how he was not the same man he used to be.  ICBC offered very little to try and resolve this matter as they did not view this claim to be significant at all.  James was able to bring this matter successfully to trial and obtain an award of $130,000.00.  This was far greater than what ICBC was prepared to settle the matter for.  This decision illustrated how our court system can be used to help accident victims who are immigrants and may feel that they do not understand our system of laws and even fully understand our language.  James was pleased to be able to help such a vulnerable person in our society.

PDF: Kalashnikoff_v._Halat.pdf

April 9, 2020
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Aarts-Chinyanta v. Binkey/Hayer/Stewart et al

Decisions and Settlements, Personal Injury

Three Motor Vehicle Accidents Contribute to Chronic Pain: Susan A-C was referred to Nixon Wenger by a friend.  James represented her initially for an accident that occurred in 2012.  While representing her, Susan was unfortunately involved in two other accidents, none of which were her fault.  Susan suffered chronic soft tissue injuries which affected her ability to move and function without pain and to suffer from intense migraines.  ICBC defended the claim of Susan for all three accidents.  They defended a claim in part on the basis that Susan’s claim of pain, migraines and disability far exceeded the injuries she could have suffered in any of these accidents, as none of the accidents were of such a nature as to cause such injury.  In other words, ICBC was saying that the accidents were of such a minimal nature that no one could be so disabled from any of the accidents.  Susan was unable to return to her job as a Walmart employee.  She had difficulty maintaining her home as she did prior to the accidents, and had a difficult time cooking and looking after her children.  James Cotter and Ryan Irving took this matter to a two-week trial in October of 2019.  They retained the foremost chronic pain specialist in British Columbia to assess Susan and to provide expert opinion evidence.  In addition, an occupational therapist was retained, an economist, and a doctor of physical and medicine rehabilitation.  ICBC retained its own experts.  This was a hotly contested trial with many arguments relating to evidentiary issues and expert evidence issues.  However, at the end of the day the trial judge agreed with our position that the culmination of these accidents resulted in significant disability for Susan.  She was awarded over $700,000.00 in damages.  This was a far greater sum than ICBC had ever offered her in the seven years since her first accident in 2012.  Susan was very pleased with the outcome and felt that it justly reflected her loss.

March 17, 2020
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T-bone collision results in a judgment of $420,000.00

Decisions and Settlements, Personal Injury

Mike Yawney, QC, along with Associate, Allison Jaquish, were retained by a 30-year old single mother after she suffered significant injuries in a T-bone collision in the North Okanagan. The woman suffered a broken clavicle and soft-tissue injuries to her neck, back, and bruising to both knees. Her injuries made it extremely difficult for her to return to work, but she continued to do so in order to support her young family. Medical experts concluded the young woman would continue to suffer from chronic pain going forward and would require ongoing rehabilitation. The court ruled in her favour and awarded damages of $420,000.00.

PDF Judge Weatherill, re Staff v. Moore, 03-02.pdf

March 2, 2020
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It’s time to privatize auto insurance in BC!

Blog, Litigation, Personal Injury

The vast majority of British Columbians are sick and tired of ICBC and its excuses.  We have been through a year of ICBC blaming claimants, the courts and lawyers for its allegedly poor financial performance.  At the same time insiders of ICBC have publicly said that there was no “financial mess” and that the corporation was actually going to make a profit in 2018.  ICBC used the excuse of financial performance to have the government change the legislation that applied to it so that it could unload costs onto private insurers and reduce claims costs by circumventing the law of damages with an injury cap.  And after doing that ICBC significantly raised rates for everyone.  

Over the last few years in my practice as a senior litigation lawyer I have dealt with ICBC on multiple claims where they have taken very unreasonable positions and caused matters to go to trial, only to cost the corporation hundreds of thousands of dollars more for a particular claim.  In some cases millions of dollars more.  Recently there was another example of this in a case that went to trial (and is now public record) called Bonneau v. Neate et al.  The ICBC adjuster took a very unreasonable position on damages, even though liability was admitted, and refused to put any more money on the table to resolve the claim.  The end result was that ICBC paid over $100,000 more than it could have resolved the claim for, and also will have to pay double costs on top of that.  The Supreme Court rules provide for an increase in costs where a party unreasonably failed to accept a reasonable offer to resolve the claim.  In the last few years the number of claims where ICBC has taken a similar position has increased significantly.  It appears to be an intentional plan to run up the costs and the only conclusion one can reach is that they’re doing so because they have easy targets to blame: claimants, or injured people, the courts and of course lawyers.  It also allows them to hide their poor business practices because they can blame others and not take responsibility for their failed performance.

All of this supports the need to privatize auto insurance in British Columbia and get rid of the ICBC monopoly. At the end of the day, ICBC as a monopoly is just another form of indirect taxation of consumers in British Columbia.  The profits it has made over the years has gone to the government’s general revenues and not been kept in the corporation.  Both main political parties are guilty of this.  The politicians do ICBC’s bidding to cover up its inefficient business practices and give it more tools to take away the rights of injured people in B.C. and so there’s no solution politically between either of the parties.  The simple reality is ICBC should be privatized and an open market for competition for auto insurance should be in place in British Columbia.  It works in other jurisdictions in Canada to lower auto insurance premiums; it should happen here.
Michael Yawney QC is a senior litigation partner at Nixon Wenger LLP, the North Okanagan’s largest law firm. He has been a member of the Association for Injured Motorcyclists (AIM) for many years, on the Board of Governors for the Trial Lawyers Association of British Columbia, is a member of the Canadian Bar Association and has represented many personal injury clients. The opinions expressed herein are the opinions of the writer and are based solely on his views and experience over the many years he has practiced personal injury law in British Columbia.

November 17, 2019
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More ICBC Misinformation…

Blog, Litigation, Personal Injury

A recent court decision by Chief Justice Hinkson where the government’s unilateral changes to the Supreme Court Rules without the usual consultation with the legal profession and the judiciary was found unconstitutional has resulted in more political rhetoric, ICBC excuses and misinformation. The Attorney General David Eby responded to the ruling by alleging that the government would now be out $400 million in revenue and would no longer have a surplus. He also alleged that ICBC paid out $1.9 billion to law firms (as part of a smear tactic to mislead the public as to lawyers and judges being the problem, not the actions of ICBC!).  We pay taxes to the government to fund it’s operations; to suggest that a court case means no government surplus is absurd and exposes the real basis for ICBC: indirect taxation!

This misinformation has to stop.  ICBC’s own employees have said there is no dumpster fire at ICBC and that the losses claimed are not correct. ICBC regularly uses “numbers” it creates to lobby the government to do it’s bidding. For example, within the last year magically creating almost $700 million in “estimates for losses” with a stroke of a pen (by re-assessing claim exposures – allowing it to adjust up an exposure to create a picture of more financial loss).  From the last financial statement published by  ICBC in March of 2019, it has an arbitrary “change in estimates for losses” of over $1.2 billion. It also notes that it’s revenues are nearly $6 billion dollars with total assets of over $16 billion….yet it claims that law firms were paid $1.9 billion with the impression that they are sucking the corporation dry!  This is simply misinformation to deflect responsibility! Neither Eby or ICBC have told you that litigated claims with law firms representing plaintiffs is only a small proportion of the claims it pays out in any given year; this isn’t stated because they want the public to blame lawyers, judges and injured people for the high cost of premiums and not tell you the real truth of it’s financial operation. ICBC doesn’t tell you how it has created millions and millions of unnecessary extra costs by refusing to deal fairly with claims; running claims to trial that should resolve and costing the corporation significant extra costs.  I have many clear examples of this, in particular with two claims within the last year that went to trial;  ICBC’s refusal to consider fair offers to resolve the claims has resulted in over $600,000.00 in unnecessary expense for the Corporation.  That is  only on two claims, there are many more examples of the same thing and it happens all the time. Right now ICBC’s strategy is to run every claim to trial to increase the costs to help continue the blame game and deflection of responsibility.  

ICBC gets away with this because it is not accountable. It simply blames claimants, lawyers and judges…and doesn’t take responsibility.  Ask yourself why we pay the highest rates in the country and why ICBC would lie about it’s financial performance?  So it can continue to deflect responsibility and blame others… and carry on providing government with revenue that amounts to indirect taxation, while raising insurance rates.

Michael Yawney QC is a senior litigation partner at Nixon Wenger LLP, the North Okanagan’s largest law firm. He has been a member of the Association for Injured Motorcyclists (AIM) for many years, on the Board of Governors for the Trial Lawyers Association of British Columbia, is a member of the Canadian Bar Association and has represented many personal injury clients. The opinions expressed herein are the opinions of the writer and are based solely on his views and experience over the many years he has practiced personal injury law in British Columbia.

October 29, 2019
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ICBC delays, result in judgement of over $804,000.00 plus costs

Decisions and Settlements, Personal Injury

Michael Yawney QC was retained by a professional woman in her early 40’s after she suffered injuries in an October 9, 2013 motor vehicle collision where she was hit hard from behind when she was stopped at a crosswalk to allow a pedestrian to cross the road.  The defendant driver had failed to slow down and stop, despite the cross walk.  There was extensive damage to the defendant vehicle but very little visible damage to the plaintiff’s vehicle.  The woman believed that should would bounce back and be okay, and worked hard with rehab to get back to work. Unfortunately, after multiple attempts to get back to work and to get better, she was diagnosed with permanent chronic pain and disability. Despite this she kept working as much as she could as she supported herself and her daughter.  ICBC took the position that the woman could not have been injured significantly and refused to resolve her claim on a fair basis despite having to admit liability as it was a rear end collision caused by the defendant. Despite numerous attempts by the plaintiff to resolve the claim fairly, ICBC forced the matter to trial. The first trial date did  not proceed because there was no court time available.

Michael Yawney QC, along with partner Allyson Edwards and associate Allison Jaquish, took the matter to trial in January of 2018. Before doing so, further attempts were made to try and resolve the claim fairly; all of which ICBC ignored. Judgement was rendered on March 18, 2019 for over $804,000.00 plus costs. Because of the attempts of Mr. Yawney and his team prior to trial to fairly resolve the claim, the plaintiff was awarded double costs due to the conduct of ICBC in refusing to accept reasonable offers before both scheduled trial dates. To further compound matters, ICBC refused to resolve costs and further court time had to be taken up to decide that issue.

This case is another example of where ICBC, despite its usual blaming of insureds and claimants for high costs, created well over $500,000.00 in extra costs compared to what it could have resolved the claim for prior to trial. This is on one claim! This happens all the time with ICBC claims, but they never tell us that when talking about ICBC’s financial performance. It is always the claimants, lawyers and judges that get blamed for it’s poor performance and high claims costs.   This case is one of many over the last several years where ICBC’s claims management and business practices results in millions of dollars of needless extra cost simply because of the way it chooses to do business. Private insurers always factor in costs and cost savings when adjusting claims; ICBC doesn’t seem to care because it can always go to the government to bail it out and make changes so it doesn’t have to take responsibility for it’s poor business practices. This is the real problem with auto insurance in British Columbia and why over 80% of British Columbians want auto insurance privatized and ICBC sold off. The $500,000.00 wasted on this one claim would go a long way to saving many people from paying higher insurance premiums. We should all be asking that ICBC disclose similar instances when it complains about high claims costs!
PDF Costs Assessment – March 18, 2019 judgment date – before Master R.W. McDiamid (02108776xB91A7) PDF Reasons for Judgment – July 31, 2018 (01810288xB91A7)

October 28, 2019
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Claim resolves for $650,000.00 plus costs & rehabilitation expenses

Decisions and Settlements, Personal Injury

A woman in her late 30’s was referred to Michael Yawney QC by a friend. She had suffered a severe whiplash injury after she was rear ended in traffic in Kelowna, BC.  The injuries completely disabled her from working. The claim was resolved at mediation a few weeks before trial for over $650,000.00 plus costs and plus future rehab expenses to help her cope with the effects of her injuries.  The key issue in dispute was her residual ability to work.

August 26, 2019
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Electrocution injury claim expedited and resolves for $2,000,000.00 plus costs

Decisions and Settlements, Personal Injury

Michael Yawney QC was asked to assist a young man and his family as a result of an electrocution injury that occurred on rented property. The young man was seriously injured when a faulty electrical circuit that was not installed in accordance with electrical code requirements, resulted in his being electrocuted.  The financial impact on the family was devastating as the young man was unable to work due to his injuries.  Mr. Yawney and his team helped the family by arranging financial assistance and medical assessment of the injuries, and most importantly, was able to expedite the claim through the courts to help minimize the financial impact. The claim was resolved a few weeks before a lengthy trial for close to $2,000,000.00 plus costs.

August 9, 2019
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Claim resolves for $85,000.00 plus costs & future rehabilitation expenses

Decisions and Settlements, Personal Injury

Michael Yawney QC was retained by an aboriginal man and his wife for a head on collision in winter conditions on Hwy 97 north of Vernon.  The man suffered soft tissue injuries that required hospitalization. Liability for the collision was admitted. The claim was resolved prior to trial for $85,000.00 plus costs and plus future rehab expenses. The man had substantially recovered, however, he required ongoing physiotherapy and medications to assist him in managing his symptoms.

July 19, 2019
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