YOUR MOTOR VEHICLE ACCIDENT CLAIM

The Way it Works – Understanding Your Claim

There have been many changes to auto insurance in the last decade.   It is an extremely complex patchwork of rules and regulations.   We will walk you through it all.

Put simply, with most car accidents which are not your fault there are two sources of compensations wallets:  (1) the at-fault driver and (2) accident benefits.

The insurer of the at-fault driver
Where you are not to blame for the accident, we will start a lawsuit against the driver who is responsible.  His or her insurance company will then appoint a lawyer to defend its interests or may attempt to settle the matter just between our firm and their insurance adjuster.

You can sue the other driver for the following types of compensation:

1. pain and suffering; and
2. past and future loss of income or economic losses generally
3. future loss of housekeeping abilities

There are limits, however.  These limits were put in place in order to discourage minor claims from reaching the courts. 

First, you can only sue for pain and suffering if you have suffered either a permanent and serious impairment or a permanent and serious scarring or disfigurement.  Often we won't know whether we meet this test until some time after the accident.

Example #1: Your only injury is a strained knee ligament.  You suffer a limp which goes away within 6 months.
Result: You will not be able to claim monies for pain and suffering because you have not suffered a permanent impairment.

Second, unless we can prove that your pain and suffering damages are worth $100,000.00 or higher, any award of compensation for pain and suffering must be reduced by a deductible of $30,000.00.

Example #2: Your only injury is a permanent soreness to your neck which flares up from time to time but does not impact significantly on your life.
Result:  The court may award you perhaps $40,000.00 in damages at the most.  From this must be deducted $30,000.00, making this part of the lawsuit not worth the effort.

Third, as far as your economic losses are concerned, you may only sue for 80% of your net wages up to trial (and for 100% following trial).  This is meant to encourage early settlements.  However, if you have received any weekly accident benefits from your insurance company (see below), these must be deducted; in other words, you cannot collect twice for the same loss.

Accident Benefits:
Your own insurance company (or, if you don’t have insurance, the insurer of your spouse, or of a parent on whom you were dependent or of the driver of a car involved in the accident)  is required to pay certain benefits to you as long as your injuries call for them.  These include:

1. all reasonably necessary medical and rehabilitation expenses (such as your chiropractor, physiotherapist, etc.)
2. weekly loss of income benefits if you were working at the time of the accident, equal to 80 % of your net income to a maximum of $400.00, so long as you cannot for reasons of health return to work
3. housekeeping benefits to a maximum of $100.00 per week
4. attendant care (or nursing) services provided to the injured person (your relative would qualify for this)
5. other benefits best discussed on a case by case basis

We might not see eye to eye with the insurance company as to whether an expense is reasonable or whether you are able to return to work.  We don't have to accept whatever the insurance company says.  We can ask for further medical assessments and if necessary go to the Ontario Insurance Commission in order to either mediate (ie:  negotiate - usually by phone) a settlement or to argue our case before an arbitrator.  In most cases, going to the Ontario Insurance Commission is exactly what we do on behalf of our clients.

Example: The insurance company says that your back and neck injury has healed and they notify that your income replacement benefits will be terminated.
Response: We ask for an assessment by a team of professionals (at the insurer's expense); depending on the results of the assessment, we may accept them or go to the Insurance Commission and insist on continued payments.

Sometimes clients get tired of the hassle with their own insurance company.  Many times we negotiate a lump sum settlement of the accident benefits.  In other words, you "sign off" of your rights to certain accident benefits in exchange for a one time lump sum settlement and the insurance company gets to close its file.

It will not be enough
I guarantee you one thing:  no matter what the settlement reached with the at fault driver or your insurance company, it will not be enough.  With many lawyers, I don't believe that Canadian courts award enough compensation and I don't believe that the accident benefits system now in place is generous enough.   Please appreciate this at the outset and you will keep your frustration to a minimum.

I love the practice of law and my home life as much as I am sure you enjoyed your life prior to your accident.  If I was forced to work with chronic headaches or back pain that won't go away, if I could not put in the kind of hours at work that I am used to, if I was irritable because of my injuries, if I

could not go camping or play ball with my kids the way I could before the accident - well, no amount of money would compensate for all these losses.  If I was paid $80,000.00 for pain and suffering, it would not be enough.  If I was paid an additional $80,000.00 as a "guesstimate" of the loss of my future income, it would not be enough.  We must work within the compensation system we have, however.

Pushing the File:
We push your file at all times.  We issue the claims as soon as possible, assemble all relevant documents, arrange for examinations for discoveries, set up medical examinations, etc.  There is much behind the scenes work of which you are not aware.  Call us if there are any questions at any time.  Please use our voice mail if necessary - we do check it.

Doctors and Examinations:
To obtain the best settlement, we will in most cases need our own specialists to examine you and prepare reports.  The other driver's lawyer will ask you to submit to medical examinations as well.  Finally, your own insurance company will have the same right.

I guarantee you that you will find these examinations to be tedious, repetitive and in general a hassle.  They are essential to the court process, however and it is best you know and appreciate this at the outset.