A seriously injured British Columbia cyclist who was billed more than $3,700 for damage to a Mercedes-Benz after a collision was initially found not at fault by an adjuster for the government-run insurer – until a manager overruled the decision, official correspondence shows.
“I filed an FOI [Freedom of Information] request, and one of the peculiar things I found was that, back in October, the insurance adjuster made the determination that the car that hit me was 100 per cent at fault,” said Ben Bolliger, who got a letter in the mail in March telling him he owed $3,752.01 to the Insurance Corp. of British Columbia (ICBC) for damages to the vehicle in the July 5, 2021 collision in Vancouver. “He was overruled by his manager, who said there was no dashcam footage to prove it, so fault should be split 50/50.”
Bolliger received 266 pages of documents on May 8, two days after ICBC said in a press release that it would stop billing some cyclists and pedestrians for damage to vehicles after a crash – and that it had just decided Bolliger was not at fault.
In the release, ICBC said it will no longer demand money from pedestrians or cyclists if fault is split 50/50 for lack of evidence or if the cyclists or pedestrians are killed or suffer severe or catastrophic injuries.
At the end of the release, ICBC said it would backpedal on its demand that Bolliger pay for damage to the vehicle – and would pay to replace his bike and other items – because it had recently received a final report from police.
“That information was new to ICBC and has led to a change in the liability decision to hold the driver of the vehicle 100-per-cent responsible for the crash,” the release said. “Mr. Bolliger is therefore not responsible for any damages or costs and will be fully compensated for damages to his bicycle and any other items.”
The crash seriously injured Bolliger’s right arm, requiring surgery, 26 physiotherapy sessions and 10 functional rehabilitation sessions.
Driver responsible?
In an internal ICBC letter dated Oct. 14, 2021, the adjuster states: “From the damage and area of impact perspective, my opinion is that [the driver] is 100-per-cent responsible. … The [driver] admitted in his statement that he is not sure if the cyclist [stopped] at the stop sign or not.”
A manager responded that because both Bolliger and the driver claimed they’d stopped before Bolliger was struck while turning left, fault should be split equally between them.
“Unfortunately, without additional independent witness statements, no dashcam video to support either version of events and both parties stating they stopped at the stop sign before proceeding, [the] claim will need to be resolved at 50/50,” the manager said in the letter.
While witnesses said he stopped before the crash, he said ICBC rejected their accounts because they were his neighbours.
Because Bolliger was found partly at fault and was driving an “uninsured vehicle” – his bicycle – he was billed for damages to the car.
“We always hope to find a fair resolution to every claim,” ICBC said when asked about the manager’s decision to overrule the adjuster. “We are never present at the scene of the crash, so determining liability can sometimes prove challenging.”
Final report
So why did ICBC reverse its ruling and decide Bolliger wasn’t at fault? What new information came from police? ICBC did not give specifics.
“The police report provided shortly after the incident did not provide a clear picture of who was responsible for causing the crash,” the statement said. “However, after recently reaching out to police to gather more information, they provided us with a final report that we had previously not seen.”
When asked what new information police provided to ICBC ten months after the collision, Vancouver police said to ask ICBC “as it was [ICBC’s] investigation.”
Bolliger said he still hasn’t seen a police report – a separate information request is pending – but his lawyer suspects media attention may be behind ICBC’s change of heart.
ICBC’s announcement came just over a month after Bolliger tweeted about being billed for the crash. Following the tweet, several media outlets wrote about ICBC’s demand.
“[ICBC] never would have changed it if they hadn’t gotten bad press,” said Joel Zanatta, a Vancouver-based insurance lawyer with the Biking Lawyer LLP. “They didn’t change it for any of the other [injured cyclists]. I had a [client] five years ago who couldn’t remember the accident [owing to a head injury] and got a $14,000 bill that he’s still paying monthly.”
Zanatta said ICBC is now reviewing 65 other cases where pedestrians and cyclists were found 50-per-cent at fault in crashes and were billed for damages since last May. That’s when ICBC adopted a no-fault system for injury claims – joining Saskatchewan, Manitoba and Quebec.
That new system doesn’t allow lawsuits for injury claims. That means Bolliger can’t sue the driver for his injuries.
Under the new policy, called “enhanced care,” ICBC will cover medical bills, up to 90 per cent of lost net income and the market rate for specialist treatments such as physiotherapy.
When it made the change, ICBC stated that part of the reason was to reduce costs.
Bolliger said ICBC did not have to pay for any of his medical care because his physiotherapy and rehabilitation took place in the hospital and were covered by provincial health care.
ICBC’s decision not to bill some cyclists and pedestrians is “a marginal victory,” Zanatta said.
“With a no-fault system, there’s no recourse [through the legal system] for injured cyclists – and that system is unlikely to change,” Zanatta said.
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Editor’s note: An earlier version of this story stated ICBC will cover 80 per cent of lost income under its ‘enhanced care’ policy. In fact, it will cover up to 90 per cent.