Executive Summary: Key Legal and Evidentiary Issues

• The appellant alleged that his insurance broker failed to properly advise him about optional excess underinsured motorist protection (UMP).

• Central legal issue was whether the broker met the standard of care owed to clients under established case law.

• The trial court found that the broker did explain the optional coverage and the appellant declined it.

• On appeal, the appellant argued that the trial judge misapplied the legal standard of care by not requiring a recommendation to purchase.

• The appellate court held that the duty to advise did not extend to actively recommending optional coverage.

• Appeal was dismissed with no reversible error found in the trial judge’s factual or legal conclusions.

Facts and outcome of the case

The case arises from a motor vehicle accident that occurred on July 9, 2016, on the Sea-to-Sky Highway near Squamish, British Columbia. Mark Carriere-de-Davide, the appellant, was a passenger in the accident and suffered serious injuries. The at-fault driver had only basic third-party liability insurance of $200,000, which was insufficient to cover the full extent of Carriere-de-Davide’s damages. As a result, he relied on the underinsured motorist protection (UMP) available under his own ICBC Autoplan policy.

The appellant had only the basic $1 million UMP coverage, although he could have purchased an additional $1 million in excess UMP coverage for $25. He sued Westland Insurance Group Ltd. and its agent, alleging negligence in failing to advise him properly about the availability and value of the excess coverage. At trial, the appellant claimed that if he had been adequately informed, he would have purchased the additional protection.

In the Supreme Court of British Columbia (2024 BCSC 686), the trial judge rejected the appellant’s claim. The judge accepted the testimony of the insurance agent, who stated that she had followed standard procedures, including offering and explaining excess UMP coverage, and that the appellant declined the option. Supporting documentation, including the appellant's initials confirming “No Excess UMP purchased,” reinforced the defense. The judge held that the broker met the applicable standard of care and that the appellant had not proven either breach or causation. The judge did quantify potential damages at $2,217,500 but made no award due to the dismissal of the claim.

On appeal, the appellant argued that the trial judge erred in law by misunderstanding the duty of care and failing to consider relevant facts in applying the causation analysis. He claimed the duty should have included a recommendation to purchase the excess UMP. The British Columbia Court of Appeal disagreed, finding that the trial judge properly applied the legal test and appropriately assessed the evidence. The appellate court emphasized that the duty of care must be determined based on context, including the appellant’s past history of declining excess UMP, familiarity with the process, and lack of specific inquiries.

The Court of Appeal held that the broker’s duty was to offer and explain the optional coverage, not to recommend or encourage its purchase. The court found no reversible error and dismissed the appeal. No damages were awarded, and although costs are not expressly mentioned in the decision, standard practice would result in costs favoring the successful party—the respondents.