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Driver Making Phone Call After Traffic Accident

Why making distracted driving a breach of insurance coverage would be a bad idea

Earlier this month, Attorney General David Eby publicly called on Insurance Corporation of BC (ICBC) to investigate voiding drivers’ insurance policies if they are involved in a crash as a result of distracted driving. The idea stems from an ongoing case at a small claims court in BC involving a driver who insists she had not been drinking before she crashed her car, but rather she had been texting which caused her to go off the side of the road. She is suing ICBC for refusing to honour her insurance claim. The insurer is standing by its belief she was impaired by alcohol at the time of the collision. The case highlights the fact that although drunk driving is enough to invalidate a person’s insurance cover, distracted driving is not.

Taking a tough stance against distracted driving is an attractive idea for Eby. The Attorney General is facing growing public pressure to reduce distracted driving crashes, partly brought on following ICBC claims that these types of incidents were a major factor in its rising claims costs. The problem is the policy would have some disastrous knock-on effects.

Making distracted driving a breach term would add extra pressure on the courts and ICBC

The idea being floated by Eby raises a great many questions. For one, how will ICBC determine a crash was the result of distracted driving? Unlike drunk driving where a breathalyzer can prove a driver was impaired after a crash, distracted driving relies on such evidence as testimony given by a witnessing officer or cell phone records leading up to a crash.

“The problem is the bar for distracted driving is set incredibly low”

Distracted driving does not appear in the Criminal Code of Canada but here in BC, amendments to the Motor Vehicle Act added in 2010 prohibit the use of electronic devices, including cell phones, while operating a vehicle. There are plenty of other actions, however, that come under the umbrella of distracted driving.

“Where does ICBC draw the line?” Roy Ho, a lawyer at Acumen Law, said. “Will it just be about cell phones? What about people driving and eating? Driving and putting on makeup? Are these going to be breachable offences as well?

He added: “There are many different ways drivers can be distracted. That’s the broader reason why this will be a bad idea.”

“[ICBC] might have to come up with its own scheme of a legal test to assess distracted driving. Relying merely on the Motor Vehicle Act or the fact they got a ticket is not enough.

“There are a lot of kinks and nuances to be worked out.”

Mr Ho went on to say if Eby’s idea did eventually come into effect, there would be a greater burden on the courts. “There are bigger issues at stake, he said. “It’s not just about points or a fine.

“A person’s work might require them to drive. If they can’t get insurance, this creates another motive for people to dispute the distracted driving allegation.”

If the number of distracted driving tickets that are handed out is anything to go by, disputes could flood the legal system. Police in BC are being directed to specifically target distracted drivers. During a blitz on offenders last month, police on the North Shore ticketed 74 drivers in a two hour period.

“The problem is the bar for distracted driving is set incredibly low,” according to lawyer Casey Goodrich, of Acumen Law.

“There would be a lot of people losing their insurance coverage. It’s a slippery slope and it seems overly harsh.”

Mr. Goodrich added although it is possible to challenge driving tickets in traffic court, he believes people who are unhappy with the decision in traffic court would be more likely to seek a judicial review in a BC Supreme Court.

Why does insurance exist in the first place?

With the intense political pressure to take a hard line on distracted driving, it’s easy to lose sight of why auto insurance exists for distracted driving.

Mr Ho said: “Why do we get insurance in the first place? One of the reasons is to protect ourselves and others from careless acts.

“As a matter of principle, it makes sense to include distracted driving as part of your coverage because you are being careless.”

What to do if you have a distracted driving ticket?

The consequences for distracted driving are currently much less severe than they are for drug and alcohol-related driving offences. Driver’s who receive a single distracted driving ticket can expect to pay a $368 fine and have four penalty points added to their driver’s record.

Under new government rules, your premiums could increase by $740 if you get multiple distracted driving tickets in a three-year period. The total amount of premiums and fines could cost up to $2,000.

The bar is set low for proving distracted driving. Evidence can be based on a police officer’s subjective account of what they saw. That’s why it is important you seek the help of a lawyer to make sure the Crown has to prove its account beyond a reasonable doubt. Proving someone was actually distracted behind the wheel is difficult and cases like these are winnable.

If you have received a distracted driving ticket in BC during this recent blitz, give us a call for a free consultation.