Section 136(b) of the Regulations to the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 voids insurance coverage for an insured who leaves the scene of a motor vehicle accident to the prejudice of the insurer. If the insured leaves the scene of the accident to avoid a breathalyzer test, the insurer is prejudiced, and the insured will not be insured for damages arising from the accident. In determining whether an insured has breached the insurance contract an adjuster may contact the police and enquire if charges are being contemplated against the insured.

Thornber v. Insurance Corp. of British Columbia, [2005] B.C.J. No. 114, British Columbia Court of Appeal

This was an appeal from a decision of Madame Justice Allan in which she determined that Mr. Thornber was entitled to be indemnified by the Insurance Corporation of British Columbia (“ICBC”) under his policy of motor vehicle insurance for losses incurred as a result of a single vehicle accident that occurred in March of 2002. Allan J. concluded that ICBC had acted in bad faith in relation to Mr. Thornber’s claim and as such, its conduct precluded it from relying on section 136(b) of the revised Regulations (1984) to the Insurance (Motor Vehicle) Act, B.C. Reg. 447/83 (the “Regulations”) to deny coverage to its insured for damages arising from the accident. Section 136(b) of the Regulations states that an insured who, without reasonable cause, and to the prejudice of ICBC, leaves the scene of an accident, voids his insurance.

Mr. Thornber was driving home from a pub when his truck veered off the road, flipped, and ended up inverted in a ditch. Mr. Thornber got out of the vehicle and walked home. He left the vehicle with the keys in the ignition and the engine running. He entered his home through a back window, drank several beers and then fell asleep. A motorist who came upon the scene called the police, who attended the scene and removed the vehicle. The police attended at Mr. Thornber’s residence and found him asleep. After speaking to Mr. Thornber, the constable concluded that Mr. Thornber’s ability to drive was impaired and detained him for an impaired driving investigation. Mr. Thornber complied with the breathalyzer demand and advised the constable that he had been drinking both before and after the accident. The impaired driving investigation was not pursued. Mr. Thornber was issued a 24-hour driving suspension and a ticket for driving without due care and attention.

Mr. Thornber gave a statement to ICBC and submitted a claim under his insurance policy to repair his vehicle. ICBC contacted the police. ICBC advised the police that it would not provide coverage to Mr. Thornber if he was charged with impaired driving, failing to provide a breath sample, or failing to remain at the scene of an accident. The reason that ICBC contacted the police was to ascertain whether Mr. Thornber would be charged with any of these offences. The police constable who was contacted by ICBC testified that when he was asked if he would be charging Mr. Thornber with leaving the scene of an accident, “a light bulb” went on in his head and he decided to issue a ticket for failing to remain at the scene of the accident. ICBC subsequently told Mr. Thornber that it would pay his insurance claim only if he disputed the charge of leaving the scene of the accident successfully. The charge did not proceed to trial.

Allan J. determined that Mr. Thornber failed to remain at the scene of the accident and that leaving the accident scene was unreasonable. The trial judge then determined that the conduct of ICBC in contacting the police amounted to bad faith and, as such, ICBC could not rely upon Mr. Thornber being charged with leaving the scene of an accident as a basis for denying his insurance coverage.

On appeal, Mr. Thornber did not seek to uphold the trial judge’s finding of bad faith. The Court of Appeal noted that, in its view, a finding of bad faith was not justified. The issue before the court was whether Mr. Thornber’s action in leaving the scene without reasonable cause resulted in prejudice to ICBC. The Court of Appeal relied upon Fuson v. Insurance Corp. of British Columbia (1995), 5 B.C.L.R. (3d) 128 (B.C.C.A.), for the proposition that the onus was on ICBC to prove prejudice for section 136 of the Regulations to apply. Although the Court of Appeal did not specifically adopt the test of prejudice set forth in Fuson, it concluded that it was a useful statement of the onus that ICBC must meet in relying upon section 136(b) of the Regulations.

Finch C.J.B.C. noted that Mr. Thornber’s action in leaving the scene precluded the police who attended at the accident scene from determining the extent to which his drinking may have been causative of the accident. The police were also deprived of the opportunity to make a breathalyzer demand before Mr. Thornber had a chance to return home and consume more alcohol. The Court of Appeal noted that there was a reasonable basis on the evidence from which an inference could be drawn that Mr. Thornber’s alcohol consumption may have been a causative factor in the accident. The evidence of alcohol consumption alone may not have been sufficient to permit ICBC to deny Mr. Thornber’s insurance coverage. Had Mr. Thornber remained at the scene, there would have been additional evidence with respect to whether alcohol caused the accident. Since there was evidence indicating that alcohol played a role in the accident, and Mr. Thornber deprived ICBC of additional evidence on this issue by leaving the scene of the accident, the Court of Appeal concluded that ICBC was prejudiced.

The appeal was allowed, Mr. Thornber’s action was dismissed, and ICBC was awarded the costs of the trial and the appeal.

To stay current with the new case law and emerging legal issues in this area, subscribe here.