Monday, March 3, 2014

Do it yourself - Suing for accelerated vehicle depreciation in BC Small Claims court

BC Injury Law shares how to sue for accelerated vehicle depreciation

Written by personal injury lawyer Erik Magraken of  MacIsaac and Company.
800-663-6299 or 250-381-5353

As I’ve previously written, when a vehicle is involved in a crash and is then repaired it is generally worth less than it would be had it not been damaged.  The reason for this is quite simple, when a buyer is looking to purchase a used vehicle, those that have previously been damaged and repaired carry a stigma.  This stigma generally results in a lower resale value.   You can click here to watch CBC’s Marketplace investigation highlighting this reality.

Although Defendants often are reluctant to acknowledge such a loss, the law in BC recognizes this lost value.  If your vehicle was damaged due the the actions of others you can sue to recover your damages for “accelerated depreciation“.

Often times the cost of hiring a lawyer to advance an accelerated depreciation claim can outweigh the amount of the recovery making it an unrealistic option.  So what can you do?
In BC the Small Claims Court has a current limit of $25,000.   This ceiling is adequate to cover all but the most serious of accelerated depreciation claims.  If you did not suffer a personal injury in your crash and your only loss is accelerated vehicle depreciaton bringing a self represented action in Small Claims Court is a viable option.
The Provincial Court has a useful website explaining the basics of starting a lawsuit.  You can click here to access information about filing your claim.

In addition to this, here are some of the key points to be aware of before getting started:

1.  The claim needs to be against the at-fault party.  The insurance company of the at-fault driver (such as ICBC) is the wrong party to sue.  Typically the action is brought against the driver of the at-fault vehicle along with the registered owner who is ‘vicariously liable‘ for damage caused by people who operate their vehicle with their consent.

2.  The Notice of Claim must describe a ’cause of action’.  In other words you have to sue for a recognized wrong.  Typically car crash   cases deal with ‘negligence’ that is, the at fault motorist caused the crash by careless driving.

3.  The resulting harm needs to be caused by the negligent action.  The Pleadings should reflect that the accelerated depreciation was caused as a result of the at-fault driving of the Defendant.

4.  The loss needs to be proven with admissible evidence.  It is not good enough to baldly suggest that a vehicle sustained an accelerated depreciation.  Some vehicles do not sustain any loss in value following a collision.  It is a good idea to retain a qualified expert to examine the vehicle, the repairs done and to then comment on what the vehicle’s lost value is compared to its natural depreciation at the time of the collision.  The expert should be prepared to come to court to testify as to his opinion and the expert’s report needs to be served in compliance with the Rules of Court.   While it does cost money to retain an expert it is worth keeping in mind that the Small Claims Court does have the discretion to order reimbursement of reasonable disbursements if the claim is successful making such expenses a worthwhile investment.
5.  You must bring your lawsuit in time.  If you wait beyond the applicable limitation period before starting your lawsuit the claim will be dismissed.

6.  If you have personal injuries but fail to sue for these and only claim for accelerated depreciation you may be barred from bringing a personal injury action later.  It is important to claim damages for all losses resulting from the crash.