How car accident settlements work in Ontario
Fact scenario: Mrs. A is a 63 year old woman living in Toronto, Ontario, and has just been involved in a serious car accident. She was rear- ended while driving along Highway 401 causing her vehicle to be thrown into the guardrail. She suffered a fractured hip and leg, concussion symptoms, and whiplash.
She comes to a law firm wondering what her legal options are and what the process for filing a claim is.
As mentioned in an earlier article, claims for motor vehicle accidents can fall either into the accident benefit (AB) category or the tort claim, or both. Because of Ontario’s driver insurance scheme, everyone is entitled to some basic accident benefits through their own auto insurer.
Accident benefits and tort claims are often claimed together. In Mrs. A’s case, she and her family are rightly concerned that there will be some long-lasting limitations as a result of her accident.
The first step in dealing with the insurance company involves reviewing the insurance contract to see what extent of benefits may be available to Mrs. A, and also making the proper filings to receive all reasonably necessary accident benefits to which she is entitled. If successful, she will receive compensation for “reasonable and necessary” medical treatment and rehabilitation costs, help with care as well as some basic benefits for compensation of lost income. Most accident benefits policies only cover up to $400/week in in income replacement benefits which is why it is important to have an experienced lawyer to help you recovery any shortfall in lost income and future losses by pursuing your rights for all losses through a tort claim against the at fault motorist.
During this process, the insurance company and the law firm will work on getting records and assessments on the state of the injury and damages claimed. Let’s say that the medical records and expert assessments indicate that Mrs. A will suffer from difficulties with mobility due to the injuries to her leg and is diagnosed with chronic pain. After these assessments, the insurance company will pay out benefits which are commensurate to these injuries and her need for ongoing care.
It is important to hire a law firm to also do help you obtain any necessary second opinions or responding assessments, especially if you feel that the insurance company’s records are inaccurate or too limited. The legal team at Grillo Barristers can help you find leading medical experts qualified by the courts that can fairly review and report on your case.
What is a settlement? At some point, both the insurance company and the injured plaintiff will want to agree on a settlement, or a lump sum payment that resolves the current claim. The law in Ontario says that you must wait one year before settling your accident benefits claim.
Many insurers are hesitant to settle their claims, because they want to see the plaintiff use their benefits and assess on that behalf to have a clearer understanding of the diagnosis, prognosis for recovery. Insurers may agree to longer term benefits or be more inclined to compensate you for a variety of factors, especially if they do not want to have to specially medically your recovery and claim. In the case of settlement, the insurance company would pay out up to the remainder of the available benefits in your policy in exchange for a release from liability.
Tort claims are claims or law suits against the at-fault motorist and their insurer. A tort claim is available to you if you have sustained serious and permanent injuries. As well, any shortfall in the benefits provided by your accident benefits insurer along with any expenses and costs incurred from the accident can be recovered as part of the tort claim. If you have additional needs above and beyond what the basic insurance will cover, you may have grounds for a tort claim and should speak to a lawyer.
Tort claims can cover a variety of heads not covered under accident benefits claim including:
- Pain and suffering
- Loss of income
- Loss of competitive advantage
- Loss of opportunities
- Delayed entry into work
- Loss of handyman/working capacity
- Loss of guidance
- Care and companionship
- Loss of interdependent relationship
- Housekeeping expenses
- Medical care and expenses.
Efforts to settle
A lawyer will advise you on the best legal direction for you. It is best for you and your medical practitioner and treatment providers to determine the optimal treatment and recovery scheme for you.
When a settlement is made, you must also sign a release. The release is consideration for the settlement cheque and essentially releases the insurance company forever, from further payout and/ or further legal liability or claims related to the current injury. In return you will get a lump sum payment. Settlement of an accident benefits claim will cover the remainder of your policy up to 5 years for your accident, unless your injuries are deemed catastrophic. Settlement of your tort claim is meant to cover your for all loses for the remainder of your life.
Some exceptions apply, where there is further aggravation of the injury (related to the initial tort), or where another claim is made against a new tortfeasor. For more information on this, please speak to a legal expert.
The process of recovering damages can be long and therefore it is important to have an experienced and dedicated legal team on your side, with ample resources to advocate on your behalf and facilitate an early and just resolution. Further, a strong firm will have established relationships with insurers and claims managers and strong references to leading experts and specialists who can help prove your claim. Here at Grillo Barristers we have over 30 years of experience and a proven track record in achieving the best results for our clients.
What is the process for my legal claim?
Let’s say Mrs. A chooses to file a tort claim for further damage. What would the process look like?
The legal claim or law suit is commenced when our firm helps Mrs. A file a Statement of Claim with the appropriate court. These will also be served (delivered) to the defendant party. In response, the defendant will deliver a Statement of Defence.
- Discovery (Documents)
At this point, the parties will exchange evidence and documents. Grillo Barristers, with Mrs. A’s permission, would file all medical and financial documents in order to prove her injuries, her prognosis, and the financial losses she suffered as a result.
- Examination for Discovery
The defendant’s lawyer may question you on the accident and your injuries. Grillo Barristers will have worked with Mrs. A to properly prepare her for questioning and will be present throughout the whole process. At this point, we may also cross examine the defendant.
At this point, cases proceed to mediation, where the parties meet with a neutral third party to try to reach a mutually agreeable settlement. Many cases settle at this point and if appropriate, mediation can result in the best results while avoiding further costs of trial.
- Pre- Trial Conference
Let’s say that the settlement of terms are unreasonable and insufficient for Mrs. A’s injuries. If this were the case Grillo Barristers may recommend that the case go to a pre- trial conference stage and trial. The parties meet with a judge who tries to help them reach a settlement. The purpose of this conference is to clearly set out the positions and issues of each party. The judge also reviews the case and sets out some expectations for trial.
While cases rarely proceed to the trial stage, there remains the possibility that some unique cases will proceed to this stage. At this step, Mrs. A’s case will be determined before a judge in the courts on a balance of probabilities. Grillo Barristers as a team of experienced trial lawyers who will be ready to advocate for you.
How can Grillo Barristers help you?
It is highly recommended to choose an experienced law firm like Grillo Barristers, as we can advocate on your behalf and arrive at a settlement that is right for you and your family. We will help you navigate through the legal process every step of the way and retain any necessary experts to prove your claim. We will not charge any legal fees unless you get paid.
Do not hesitate to call us today!