Motor Vehicle Accident Benefits vs Tort Claims

Motor Vehicle Accident Benefits vs Tort Claims

Moussa Sabzehghabaei

Personal Injury Lawyer

 

Accident Benefits and Tort Claims

In Ontario, an injured person can be compensated through two sources, accident benefits and a tort claim. It is important to know the extent of your rights under these legal schemes and what to do when you’ve been injured in a motor vehicle accident.

Accident Benefits and Tort ClaimsThe first type of benefit is known as Accident Benefits (AB). In Ontario, we are fortunate to have a no- fault insurance regime, which means that these types of benefits can be available to all injured persons regardless of the fault.  You can apply for the benefits through your own automobile insurance policy, or if you do not have a vehicle, through the insurance policy that you are a listed driver of, and if not from the insurance policy, then from any other vehicle involved in the accident. Accident benefits are available to all individuals involved in a motor vehicle accident.

What type of Accident benefits can I receive?

Your benefits can be split into the standard levels benefit and other, optional benefits.

Medical Treatment

Accident benefits from the automobile insurance company can cover all “reasonable and necessary expenses” incurred as a result of the accident. These can include, but are not limited to:

  • Costs for medical, surgical, and dental procedures
  • Chiropractor, physiotherapist, and psychotherapist fees
  • Medication and medical aids

In some cases, transportation costs related to medical treatment sessions and medical assessments may also be covered. Please consult a personal injury lawyer for more information on the maximal allowed rates and expenses that can be claimed.

Benefits are also provided for those who suffer traumatic injuries. These injuries often require a significant amount of ongoing therapy and care to assist with rehabilitation. The goal of rehabilitation is to return the injured person to some semblance of a normal social and work life. Permissible expenses should also be “reasonable and necessary”, and include, but are not limited to, life skills training, family and financial counselling, employment counselling, and vocational or academic training. Home, vehicle and workplace accommodations are also covered under this section.

If you are a driver, passenger, or pedestrian involved in a motor vehicle accident, you may claim:

  1. Income replacement benefit: equivalent to 70% of your gross income up to a maximum of $400/ week. The most common type of benefit, this type of benefit essentially compensates you for lost income during the time you miss off work due to injury or recovery. It will cover up to 70% of your gross income up to a maximum of $400 a week. Alternatively, if you were not working you may be eligible to receive non- earner benefits. This benefit compensates you for the loss of daily life functions. Claimants who are completely unable to perform their daily activities, such as housekeeping, shopping, driving, or other activities, as a result of injury can qualify under this section. This benefit is generally limited to $185 a week, lasting for up to two years. There is some variance with respect to the amount you are entitled to, and the duration of the period to which these benefits are paid, so please consult a legal expert.
  2. Child care benefit: $250 a week for the first child, and $50 for any additional child (this is an optional benefit, requiring an additional insurance premium to be paid)
    Duration: lasts up to 104 weeks after the accidents unless claimants demonstrate that they suffer from a complete inability to carry on a normal life. There are some exceptions, so please see a lawyer for clarification.These benefits are mutually exclusive, which means that claimants cannot receive child care benefits if they are receiving income replacement or non- earner benefits.
  3. Attendant care benefit: up to $3000/ month, and in the case of “catastrophic injury”, up to $6000/ month
    These benefits are related to expenses for hiring an aide to help catastrophically injured victims with their day to day care needs. The benefits can also cover stay in a long term health facility.
  4. Rehab benefit: these are the most common of all the benefits available to accident victims
    Claimants are entitled to “reasonable and necessary” medical and rehabilitation treatment in order to help them return to society.
  5. Housekeeping benefit: $100/week (optional benefit as well)
    These benefits are available to catastrophically injured claimants. These cover the costs of housekeeping and caretaking needs.
  6. Lost educational expense: up to $15000
    These are expenses lost due to not completing a course in elementary, secondary, post- secondary or continuing education, provided that the person was enrolled in the program at the time of the accident.
  7. Visitor expenses are benefits that cover travel expenses for certain close relatives to visit the plaintiff.
  8. Miscellaneous expenses can also be claimed including damage to clothing, glasses, hearing aids, and other similar expenses for replacing items.
  9. Death and funeral expenses are also covered up to $25000 paid to a spouse and $10000 to every qualifying dependant. In addition, funeral benefits up to $6000 are also available under auto policies.

Optional benefits are available to purchase under the SABS. These provide additional benefits to the basic benefits covered, and must have been purchased prior to the accident or injury. Always consult a lawyer to help determine what extent of optional benefits you may be entitled to.

Claiming accident benefits against insurance companies can be an arduous and complicated process. It is important to consult a personal injury lawyer to assist you with the process of filing for accident benefits. At Grillo Barristers we have over 30 years of experience dealing with such issues and have helped tens of thousands of clients like you recover money for expenses, losses, and treatment.

Tort claim

In many cases, you may be entitled to further compensation in a motor vehicle accident. Beyond the basic insurance benefits, an important aspect of the law is tort damages and recovery.
Torts refer to a wrongful act committed by a party that has resulted in some sort of physical, emotional, or financial injury. Under these circumstances, you may have standing to commence a tort claim against the responsible party for further compensation.

The purpose of a tort claim is to help recover damages to make the victim whole again. As a result, tort law is important for achieving justice for victims and protecting them from social injustices. Tort claims are different from criminal cases!

Intentional vs. Unintentional tort

Another important distinction in tort is the difference between intentional and unintentional offences.
A tort is considered unintentional when the wrongdoer is just careless to the surrounding circumstances, and their failure to take care leads to physical injury for the plaintiff. In these cases, the court would ask whether the person was negligent or not. Motor vehicle accidents, since they are accidental, will fall under this category.

A tort is considered intentional when one party intends to harm or cause injury to the other party. A good example of this would be battery.

It is important to note that just because the wrongdoer did not intend to injure you, it does not prevent you from recovering money to the full extent of the law! Just because it was an accident does not mean that you as a victim should not be compensated! The courts will look at a variety of factors and often case wrongdoers will be found liable because they failed to take the necessary standard of care in their activities.

Consult a lawyer to determine the potential for your tort claim.

The law of torts can be complicated and you may not know the full extent of your entitlement to damages under the law. It is important to contact an experienced lawyer for assistance. At Grillo Barristers we have over 30 years of experience dealing with motor vehicle accidents and have helped recover compensation for thousands of clients like you.

How car accident settlements work in Ontario

How car accident settlements work in Ontario

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.

Car Settlements First Step

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.

Settlement

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 claim

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?

  1. Pleadings
    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.
  2. 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.
  3. 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.
  4. Mediation
    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.
  5. 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.
  6. 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!

10 things to do after being involved in a car accident

10 things to do after being involved in a car accident

10 things to do after being involved in a car accident

  1. 10 Things to do After a Car Acciden_02Stay at the Scene
    Never leave the scene of the accident, even if you are convinced that you may have caused the accident. If possible, move the vehicle off the road to a safe location. Stop the car, turn off the engine, and turn on the hazard lights. Leaving the scene of the accident can be a criminal offence!
  2. Call 911
    Always call 911 as soon as possible in order to get medical assistance and police assistance. Explain the situation clearly and calmly to the operator.
  3. Exchange Information
    If possible, locate the other party and exchange drivers license, plate number and insurance information with them. Also take down additional information such as phone numbers and a visual description of the vehicles involved.
  4. Take Pictures
    Picture evidence is your friend! In many cases where liability for the accident is in dispute, having a good document of pictures can help your case! It is also important to have pictures to gauge the extent of the vehicle damages and any visible personal injuries.
  5. Seek Medical Care
    If necessary, go to the hospital to treat any injuries. Make sure to keep all relevant documents and receipts for medical purchases and prescriptions. They will be critical for determining if you are entitled to further medical and rehabilitation expenses.
  6. Start Making a Record
    When you or a relative or friend are able to do so, make a record of the accident location, possible witnesses, the speed at which the vehicles were travelling, and information that was exchanged.
  7. Contact your Insurance Company
    When safe to do so, call your insurance company. There will be an adjuster in charge of your file; answer all questions honestly and to the best of your knowledge.
  8. 10 Things to do After  Car-Acciden_01Report the Accident
    The insurance company may require you to report the accident in person to the nearest collision centre. As usual, keep records of all documentation, including all paperwork, the collision centre number and police officer number.
  9. Keep Documentation
    The importance of an organized and full file must be emphasized. A well-kept file of documents can help your case immensely in dealing with opposing parties and insurance companies. Also take note of any witnesses that can testify on your behalf. When you are ready, present these documents to your lawyer.
  10. Contact a law firm that specialises in personal injury law such as Grillo Barristers
    The experience of being involved in a motor vehicle accident can be harrowing and stressful. You may feel overwhelmed and unsure of what to do. It is important to speak with legal experts to determine what your rights and options under the law are. Fortunately, here at Grillo Barristers we have over 30 years of experience in dealing with these matters and have helped thousands of clients just like you recover millions of dollars for their injuries. Call us today at 416-614-6000 for a free consultation!

Things To Do Following a Car Accident

Things To Do Following a Car Accident

  1. Stay Calm – As much as you want to scream, yell and/or cry, staying calm is the best option for your own safety and for your health. The moments following a car accident are important for gathering key information and getting the help you need.
  2. Check yourself, your passengers and on the other party(s) – Make sure you and your passengers are not visibly injured or in any immediate danger. If you are able to exit your vehicle, check on the other driver(s) involved and let them know you are calling 911.
  3. Call Police/EMS and follow their instructions – Although you may not appear to be injured, studies have shown that for the first 24 hrs, your body is in a state of shock. Adrenaline and endorphins are running through your veins which can mask pain and injury. This is why it is important to seek medical attention as soon as possible. If you are not going to a hospital right away, see your doctor as soon as possible.
  4. Get all the information of the other party(s) – A smartphone can be a great tool to capture the information needed to begin the claims process. Take a photo of the driver’s licence, insurance card and license plate of the driver and note the make, model and color of the vehicle. Also take some photos of the scene and damage to both vehicles. Remember that you MUST exchange information with involved parties and report all collisions where damages exceed $1000.00 as per Ontario law.
  5. Notify your insurance company – Within 7 days, you must notify your insurance company even if you do not plan on making a claim regardless of who is at fault. Failure to do this can result in a denial of benefits you may be entitled to.
  6. Call US! – With our years of experience handling motor vehicle accidents, you can rest assured knowing our team will complete all the paperwork and get your claim moving, including any specified benefits you are entitled to.

Call us for your no obligation consultation!