Two types of claims are possible following a car accident in Ontario that results in an injury. These claims are no-fault accident benefits and tort claims. Different processes exist for these claims, though either may be settled at any stage during these processes. The basis of each process will be discussed in this blogpost along with how and when these types of claims usually settle. When you hire a personal injury lawyer in Oshawa or Whitby at KSB Law, we can advise you about your particular accident claim.
ACCIDENT BENEFITS CLAIMS AND THE SETTLEMENT PROCESS
No-fault accident benefits are provided by your own auto insurance company. The minimums for these benefits are set out in the Ontario Statutory Accident Benefits Schedule. These policies provide coverage for medical treatment, attendant care, and income loss. You may also be eligible for benefits as a non-earner or caregiver.
Anyone injured from a car accident is entitled to accident benefits, regardless of fault. If you are a passenger or a pedestrian and you do not have auto insurance, you should apply for accident benefits through your family member’s insurance policy (provided you live at the same address) or otherwise the policy of a driver in the accident. An experienced personal injury lawyer in Oshawa or Whitby can assist you with the application for benefits.
The process for accident benefits is different than a tort claim. First, you submit the standard Ontario Claim Forms (OCF) and apply for the benefits to your own insurer. Your insurer will either approve or deny the claim. You will be eligible for benefits while the insurer continues to approve the claim and you may be required to submit additional forms as you require additional treatments or other benefits. In most cases, your insurer will eventually deny your entitlement to treatment, income replacement or other benefits.
While the accident benefits claim is for specific benefits, (physiotherapy for example) an offer to settle is usually a one-time payment in lieu of continued benefits. This means that your claim is considered complete and your file will be permanently closed. If an Oshawa or Whitby personal injury lawyer at KSB Law is assisting you with your accident benefits claim, you will be informed about any offer from your insurance company and advised on how that offer compares to the continued benefits and settlements offered to injured people in similar situations.
TORT CLAIMS AND THE SETTLEMENT PROCESS
The other type of claim following an accident is a tort claim. Injured passengers, pedestrian and drivers, who are not 100 percent at-fault for the accident, are eligible for a tort claim. A tort claim is with the insurer for the at-fault driver or drivers involved in an accident. If the at-fault driver does not have insurance, is unknown or has inadequate insurance, you may bring a tort claim against your own insurer.
A tort claim is primarily for compensation for the pain and suffering sustained from the accident as well as other costs that may not have been covered by the accident benefits policy, such as additional medical treatment, rehabilitation, income loss or out of pocket expenses.
In general in Ontario, nearly all civil litigation cases settle and in personal injury cases that number may be even higher. How and when you should settle your claim depends on the facts of the case and the evidence you have supporting your claim.
The tort claim process starts with a notification to the insurance company of the at-fault insurer. Depending on the circumstances, your lawyer may advise you that it is best to register the claim formally with the court right away, or enter into negotiations with your insurer prior to registering the claim with the court.
Prior to and after filing your claim with the court, your lawyer should provide the insurer with documents that show you were not at-fault for the accident and corroborate your description of your injuries such as medical records, the police report, accident benefits file, etc.
After filing the claim, the next step is usually an examination for discovery, where the insurer’s lawyer will ask you questions about the accident, your injuries, any treatment, and how the injuries have impacted your life. After the discovery, the insurer may wish to engage in settlement discussions. If the matter does not settle, a mediation often occurs, followed by a pre-trial conference with a judge if the matter is not settled in mediation. These are often excellent opportunities for the parties to discuss settlement. Even matters that get to the trial stage, sometimes a settlement is negotiated just before court starts.
Just as with the accident benefits settlement, to settle a tort claim, the insurer will likely offer a one-time lump sum settlement in exchange for closing your claim. Your personal injury lawyer will advise you whether this settlement is comparable to what a judge or jury would likely award and how it compares to what other similarly situated injured persons have received.
COSTS CONSEQUENCES OF FAILING TO ACCEPT A REASONABLE OFFER TO SETTLE
It is important to follow your lawyer’s advice regarding offers to settle. If you fail to accept an offer to settle and receive a lower award at trial, you may be responsible for some of the defendant’s legal costs.
In Magnone v. Dawson, the plaintiff Ms. Magnone became injured in an accident where the defendant admitted fault. Prior to the trial, the insurer offered to settle the matter for a total of $135,000 for Ms. Magnone’s pain, suffering and lost income, plus a contribution to her legal fees. Ms. Magnone did not accept this offer, however, and a jury awarded much less at trial. In consequence, the judge ordered Ms. Magnone to pay $100,000, which was a portion of the insurer’s legal fees for having to proceed to court.
CONTACT KSB LAW FOR A CAR ACCIDENT LAWYER IN OSHAWA OR WHITBY
If you or a loved one have been injured in a motor vehicle accident, you should contact a personal injury lawyer at our Oshawa law firm to get help in obtaining fair compensation for your personal injury claim. At KSB Law, we have over 30 years of experience in personal injury law and you don’t pay any legal fees until we achieve compensation for you. Contact us today at 905-579-5302.