2004 BCCA 498 Planidin v. Insurance Corp. of British Columbia

Before:	The Honourable Madam Justice Southin
	The Honourable Mr. Justice Hall
	The Honourable Mr. Justice Lowry

T.L. Napora and B.P. Trainor	Counsel for the Appellant
M.J. Hewitt and J. McDaniel	Counsel for the Respondents, Insurance Corp. of British Columbia and Norman Sear
Place and Date of Hearing:	Vancouver, British Columbia
September 20, 2004
Place and Date of Judgment:	Vancouver, British Columbia
September 30, 2004

Written Reasons by:

The Honourable Mr. Justice Lowry

Concurred in by:

The Honourable Madam Justice Southin

The Honourable Mr. Justice Hall

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[1] Evelyn Planidin appeals from an order made on January 29, 2003, striking out the pleadings for her claim against the Insurance Corporation of British Columbia ("ICBC") and one of its adjusters, Norman Sear, arising out of an incident of damage to her automobile which occurred while it was in the care of repairers.

[2] She sued the repairers as well as the municipality and its employee who were involved in the accident that caused the damage, but she also sued ICBC and Mr. Sear for damages. The damages claimed against them include aggravated and punitive damages attributable to their acting in bad faith, failing to act in good faith, and breaching contractual, statutory, and fiduciary duties in dealings with her, all of which she has maintained stem from the fact that she had purchased collision coverage from ICBC for her automobile.

[3] The sole issue now is whether it was open to the judge who made the order to dismiss the action by striking out the pleadings against ICBC and its adjustor (paragraphs 16 to 21) under Rule 19(24)(a) of the Rules of Court as disclosing no reasonable claim. It is well established that it was open to him to do so only if it was plain and obvious the action was bound to fail: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.

[4] The judge disposed of the matter on the basis that Ms. Planidin's claim against the repairers engaged their repairer's liability insurance that was placed with ICBC; Ms. Planidin's collision coverage was not involved. The claim against ICBC and its adjustor was seen as no more than an attempt by Ms. Planidin, as a third party, to make a bad faith claim on the repairer's liability coverage which cannot be done: Joe v. Insurance Corp. of British Columbia (1984), 55 B.C.L.R. 118 (C.A.).

[5] On this appeal any claim based on a breach of fiduciary duty has been abandoned in the course of argument. The claim Ms. Planidin seeks to advance against ICBC and its adjustor has been confined to the contention that, while she has a valid claim against the repairers for the damage to her automobile, she has an independent claim against ICBC for not advising her when she first reported the damage that she could make a claim directly against the insurer on her collision coverage. That, it is said, would have afforded her a choice as to how best to maximize her recovery, although it is unclear on what basis Ms. Planidin could have recovered more by making a claim on her collision coverage than by pursuing a claim against the repairers. It is not suggested that Ms. Planidin sought any advice in this regard from ICBC or that she was in any way mislead, but the fact that the insurer did not advise her that she could make a claim against it is nonetheless said to be a failure to exercise good faith that caused her unspecified loss, damage, and expense.

[6] We are informed that Ms. Planidin has settled the claim for the damage to her automobile and that she now seeks only to recover the aggravated and punitive damages claimed against ICBC and Mr. Sear. Whether it is open to her to maintain a claim for damages of that nature alone has not been contested.

[7] Given that the claim is now confined to one of a failure to exercise good faith, no purpose would be served in setting out the much broader allegations contained in the several impugned paragraphs of the pleadings as did the judge who ordered them struck out. I consider it necessary only to consider whether, if properly pleaded, the case as now put could succeed.

[8] The suggestion that an insured person may look to an insurance underwriter to advise on coverage is not to be found in the authority cited on this appeal. Insurance brokers and lawyers advise on coverage; underwriters respond to such claims as they are contractually bound to pay. The relationship between insured and insurer is contractual. Contracts of insurance contain obligations to indemnify in return for the premium paid, not obligations to advise on claims that could be made.

[9] It is not said that ICBC offers to provide advice on coverage to those it insures, nor is it said that there is any statutory or contractual provision requiring it to do so. Adopting the suggestion that ICBC is obliged to give advice on coverage to those it insures would be to impose an obligation having no contractual basis.

[10] Contracts of insurance have long been recognized to be governed by the principle of uberrima fides. The exercise of good faith is required of both insurer and insured. Broadly expressed, the insured must be forthright in disclosing the risk to be underwritten and the insurer must respond in like manner to a claim when it is presented, having due regard for the interests of the insured and indemnifying the insured to the full amount to which there is entitlement for the premium paid. But, in my view, there is no basis in law on which it can be said that the insurer's obligation to act in good faith carries with it an obligation to give advice on coverage — on the claims that can be made against it — particularly where no inquiry in that regard is made and no service of that kind is said to be offered.

[11] It appears to me to be plain beyond question that, at least in the circumstances of this case, ICBC had no legal obligation to give Ms. Planidin advice about the coverage she had. That being so, her claim against the insurer and its adjustor is bound to fail.

[12] I would dismiss the appeal.

“The Honourable Mr. Justice Lowry”

I Agree:

“The Honourable Madam Justice Southin”

I Agree:

“The Honourable Mr. Justice Hall”

Citation:	*Planidin v. Insurance Corp. of British Columbia,*
	2004 BCCA 498