Carfra Lawton LLP | Victoria BC

Coverage forfeited after Cellphone Records Contradict Plaintiff’s Evidence

The plaintiff in Winterbottom v. ICBC, 2018 BCSC 1638, sought insurance coverage for his truck, which he claimed had been stolen. ICBC refused coverage, arguing that the plaintiff was either involved in the theft or could not prove it had been stolen.

The plaintiff had reported his truck stolen to the police and ICBC. He claimed that he had attended a pub with some friends, became very drunk, lost his truck key, and then went home to sleep off the alcohol. He returned to the pub the next morning to find his truck missing. The truck was found a few days later in a remote location, destroyed by fire.

At trial, ICBC called a witness who was able to roughly trace the plaintiff’s whereabouts on the night of the alleged theft, based on cellphone records and the cell towers in the vicinity. The cell phone evidence showed that the plaintiff was not at the pub where he had claimed to be and, in fact, his call history placed him in the vicinity of where the burned-out truck was located. This not only meant that the judge could not rely on the plaintiff’s evidence to prove that a theft occurred but also that the plaintiff had given false statements to his insurer, which forfeited coverage under his insurance policy. As such, the plaintiff’s claim was dismissed.

Case law summary provided by Andrew Buckley