Woman claims she wasn't drinking before crash — she was texting

Call it the lesser-of-two-evils defence: a B.C. woman is fighting the Insurance Corporation of British Columbia's refusal to honour her insurance claim by arguing that she was texting, rather than drinking, before she crashed.

As a result, a Kamloops provincial court judge hearing a pretrial application has ordered Angela Seeley to divulge both her weight, to help determine if she was impaired, and her cellphone records to the insurer.

"At issue is a single vehicle accident in which Ms. Seeley was the driver and sole occupant. At the time, she evidently gave two different versions of what happened leading to the accident," Judge Stella Frame wrote in her ruling.

"The one she stands by is that she was texting. [ICBC's] theory is that Ms. Seeley was impaired at the time of the accident and was incapable of driving her vehicle in a safe manner."

Ordered to divulge her weight

Seeley launched her small claims suit after ICBC refused to pay out for damage to her 2013 Hyundai Santa Fe. The accident happened on Valentine's Day 2016.

She is suing for $25,000, the maximum allowable in a suit at the small claims level.

In response, ICBC says Seeley forfeited her right to indemnity, because she was "operating a vehicle while under the influence of intoxicating liquor or a drug or other intoxicating substance."

The judge said the company claims she made false statements by saying she had nothing to drink before the accident.

The insurer has filed a counterclaim of $6,388.77 to recover the cost of a B.C. Hydro pole that was sheared in half as a result of the accident.

The trial is set for June.

Lesser of 2 evils?

The case centres around an issue that could have huge consequences for ICBC and B.C. drivers, as the insurer looks to cut costs propelled by a spike in claims due to distracted driving.

Texting is not an offence that would cause a breach of insurance, but a criminal code conviction for impaired driving is an automatic breach.

And even if it's not accompanied by a conviction — ICBC says impaired driving may still also be a breach.

ICBC is currently facing a $1.3 billion shortfall, which has led B.C. Attorney General David Eby to announce changes to insurance in the coming years, including placing caps on claims for pain and suffering on minor injury claims.

But the idea of making texting a breachable offence is not part of the raft of proposals currently on the table.

Distracted driving now claims more lives on B.C. roads than impaired driving. ICBC says 78 people are killed a year due to distracted driving compared to an average of 66 fatalities due to impaired driving.

Seeley has not been charged with impaired driving. Her lawyer declined to comment on the case.

How much did she weigh?

Frame ruled on a series of applications this week concerning evidence sought by ICBC — including Seeley's weight.

"While Ms. Seeley has responded to some of these questions, her answers are sufficiently vague that [ICBC]'s blood analyst is unable to determine Ms. Seeley's weight on the day of the incident, the food she ate that day or what time she ate it," ICBC said.

The judge has now ordered Seeley to produce a statement saying how much she weighed, along with what she ate and when she ate it on the day of the accident.

Seeley also has until next month to produce cellphone records for the time in question.

Frame said she wasn't satisfied Seeley had made "appropriate efforts" to confirm that the dates and times of her text messages are unattainable" from Telus or that she has searched for them in her own records.

But the judge refused to grant ICBC an order permitting the insurer to interview the B.C. Ambulance attendants who observed her after the crash. That's, in part, because it wouldn't fit with the spirit of small claims proceedings, which are supposed to be "speedy, inexpensive and simple."

The judge noted that the type of orders and information that ICBC wanted risked turning the action into the type of proceeding that belonged in Supreme Court.