Insurer entitled to partially deduct Part 7 medication expenses from cost of care award

Insurance law – Automobile insurance – Statutory Accident Benefits Schedule – Damages – Special damages – Future benefits

Xu v. Balaski, [2021] B.C.J. No. 2037, 2021 BCSC 1850, British Columbia Supreme Court, September 22, 2021, K.W. Ball J.

The insured brought a claim for damages against defendants in three motor vehicle accidents. Liability was admitted in all three actions and the trial proceeded on damages. The insured was awarded $280,000 for cost of future care.

The insurer applied to deduct $217,017.50 from the cost of care award pursuant to s. 83 of the Insurance (Vehicle) Act and its regulations.

The court was unable to determine on the basis of the affidavit evidence what the insurer had paid to the insured by way of accident (Part 7) benefits. The court therefore deducted Part 7 benefits that the insured would be entitled to after her private medication plan was exhausted. She had 80% coverage and therefore the court deducted the remaining 20% from the $217,017.50 that was available in total medication expenses, which totalled $43,403.50.

This case was digested by Cameron B. Elder, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Cameron B. Elder at celder@harpergrey.com.

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