$4M crash award, with $100,000 for surrogacy
Nanaimo’s Mikaela Wilhelmson, 27, was the sole survivor in a crash that killed her boyfriend, Jarrett Swackhamer, 21, his friend and the driver of the other vehicle. Wilhelmson, who was permanently and severely injured, was awarded a precedentsetting $100,000 for surrogacy as part of a $4-million settlement.
A Nanaimo woman who was the sole survivor of a high-speed, head-on collision has been awarded a precedent-setting $100,000 for surrogacy as part of a $4-million settlement from the Insurance Corp. of B.C.
Mikaela Wilhelmson, 27, was permanently and severely injured in the crash on Highway 10 in Surrey on the early morning of Aug. 13, 2011. Her boyfriend, Jarrett Swackhamer, 21, and his friend, Jovan Salapura, 52, were both killed when the driver of the other vehicle, Jason Dumma, slammed into them. Dumma, 37, was driving at more than 150 kilometres per hour on the wrong side of the divided highway. He also died at the scene.
Wilhelmson was airlifted to Vancouver General Hospital with life-threatening injuries. She was kept in a medically induced coma for four weeks and spent 39 days in the acute-care unit, undergoing 10 surgeries. The crash left her with severe internal injuries. She is able to get pregnant, but unable to safely carry a child.
During the civil trial last fall, her family physician compared Wilhelmson to “a shattered vase that was able to be glued back together after being dropped. Even if all the pieces were fitted together with the finest techniques available and the vase could still fulfil many of the functions it did before being shattered, it would never be the same.”
On April 13, after a six-year battle for compensation, Justice Neena Sharma awarded Wilhelmson $882,066 for the cost of her future care, including $100,000 for surrogacy fees for two pregnancies.
Sharma also awarded Wilhelmson the maximum of $367,000 for pain and suffering and $2.4 million for loss of capacity to earn income.
“I’m happy that I will have the opportunity to have a child and I just hope this does help other women in my position. It doesn’t bring Jarrett or Jovan back, but at least something positive has come from something so tragic,” Wilhelmson said Tuesday.
Wilhelmson’s lawyer, Conrad Margolis, said the award is unique and the first of its kind in Canada.
“It’s entirely appropriate in the circumstances,” Margolis said.
“If anyone reads the judgment carefully, it will become apparent how bad the internal damage is for Mikaela and there was very clear expert evidence that for Mikaela to have biological children, the only realistic option for her is to hire a surrogate.”
In Canada, it’s illegal for women to be paid to carry another woman’s eggs and act as a surrogate. However, many Canadian women receive the service in the U.S.
During the trial, Margolis asked for a specific award to cover surrogacy fees, which ICBC lawyers contested.
“The judge agreed with our position that because it is legal for a Canadian citizen to go to the U.S. and hire a surrogate, compensating for that is not illegal,” Margolis said. “It’s the right option for Ms. Wilhelmson.”
Forty witnesses testified at the sevenweek civil trial, including 20 experts and 20 family members and friends.
Sharma’s 84-page judgment describes the courage, grit and determination of Wilhelmson, who has pushed herself to get better. After the collision, she had to relearn how to eat, breathe and walk.
“I find her to be, quite simply, an extraordinary young woman — her resilience is remarkable,” Sharma said.
The collision robbed Wilhelmson of the “joys, excitement and formative experiences that people in their 20s enjoy as they discover the adults they will become and the life they will pursue. Ms. Wilhelmson’s life will be nothing like what she or anyone else envisioned it would be before the accident,” said the judge.
The collision killed the love of the young woman’s life just as they were beginning to plan a life together, said Sharma.
In 2015, Wilhelmson started a new relationship and she became pregnant in early 2016. But doctors advised her to terminate the pregnancy because her injuries made carrying a child too dangerous.
“It is difficult to imagine a more agonizing situation facing a young woman who wants to have a family,” Sharma wrote.