ICBC’s application for a rate hike has included as a rationale for the required increase, the increased rate of legal representation of claimants, which they attribute to lawyer advertising. In their application last year they also pointed to increased legal representation as one of the reasons for increased costs. The BC Utilities Commission in its 2015 decision allowing the increase, encouraged ICBC to “explore all possible ways to address controllable as well as external factors that may lead claimants to seek legal representation”, noting that if appropriate steps were put in place the rate of legal representation could return to pre 2011 levels that existed prior to the acceleration in rates of legal representation. The panel did not accept ICBC’s explanation for the reasons for increased legal representation stating as follows:
…we view perceived lawyer benefits as at least in part a function of the treatment that claimants believe they are likely to receive at the hands of ICB in the absence of legal representation.
The panel called for a follow up customer satisfaction survey to be conducted by ICBC to help it identify what in its processes was driving claimants to hire lawyers rather than deal directly with ICBC on their claim. The 2014 survey that was conducted by ICBC identified a number of reasons that claimants were seeking legal representation including perceived lawyer benefits, lawyers increasing the chances of a better settlement, reducing the hassle of dealing with ICBC, providing access to more treatment and enabling claimants to more fully focus on their recovery. Claimants also identified hiring a lawyer as giving them a greater sense of control by having an expert fully on their side.
ICBC over the last few years has spent a significant amount of money on advertising with an aim to decrease the rate of legal representation in ICBC claims. I have previously written on this and the problems I saw with our public insurer using policy dollars to discourage claimants from hiring counsel. Leaving aside the question of why ICBC wants to prevent claimants from having legal representation, I disagree with my policy dollars being spent on advertising. ICBC does have within its control many things that can be done to decrease the number of people that hire lawyers like myself for their car accident claims. More often than not, when I am hired I will hear complaints from the claimant about the treatment that they have received at the hands of ICBC prior to hiring me. They have been unable to get timely communication and decisions from ICBC, ICBC has not been clear in either their decisions or the reasons for it, ICBC is pressuring them to do one thing or another, or ICBC is preventing the claimant from getting the type of treatment that has been recommended. It is these factors primarily in my experience that lead to claimants hiring a lawyer to assist with their claim.
I have also over the years that I have handled ICBC claims on behalf of claimants seen changes which have served to increase the costs to ICBC associated with the litigation. ICBC has stripped adjusters of authority resulting in cumbersome procedures and delays in settlement discussions. ICBC routinely seeks jury trials which add at least one full day to the length of a jury trial. ICBC disregards legal precedent and seemingly the advice of the lawyers that they have hired in deciding settlement strategy, resulting in either a lack of presentation of offers that are within the range of potential outcomes at trial or delaying providing those types of offers until very close to trial. ICBC also often refuses to deal seriously with a file or seriously consider settlement offers until very close to trial, again significantly increasing the costs of litigation. All of these factors are within the control of ICBC. ICBC has the power and ability to reduce the rate of legal representation, all that they have to do is deal fairly, reasonably and compassionately with complainants once a claim is filed. ICBC has the power and ability to reduce the litigation costs associated with files. If they provided their experienced adjusters with the authority to handle files in a way that reflects the economic realities of the file, including proportional spending of defense costs based on the size of the file, and provision of timely settlement offers prior to litigation costs escalating. For ICBC to suggest that they do not have control or influence over either the rate of legal representation or the cost of their litigation is disingenuous.