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Brian Goldfinger on the misfortune of two or more accidents (Ontario)

In the world of Plaintiff personal injury law, it’s not uncommon for cases to last a year,  to multiple years. Depending on the severity of the injury, the complexity of the case, the number of parties involved in a case, along with the willingness (or lack thereof) of the parties to settle, personal injury cases can take a lot of time.

From the time your case is issued, up until the time the case is ultimately resolved by way of trial or settlement, a lot can happen. We call this period of time the litigation period.

During the litigation period, it’s unfortunate, although not uncommon for Plaintiffs to get involved in a second, or even a third accident. Regardless of fault, or whether or not the Plaintiff choses to litigate, this second or third accident will be significant and can totally change the dynamic of the personal injury case at hand.

Here are a few examples discussed by personal injury lawyer Brian Goldfinger the principal of Goldfinger Injury Lawyers of how a second or third accident during the litigation period can have a negative impact on a personal injury case.

Stacking deductibles for car accident claims: Attached to each car accident, the Defendant insurer is entitled to statutory deductible or secret credit. Your personal injury lawyer is NOT allowed to discuss this secret credit with the jury or at trial. It’s automatically deducted from any award you win. The secret credit or deductible currently sits at just under $40,000 and is set to go up on January 1, 2020 with the cost of inflation.

Deductibles stack. That means that for each accident, a deductible is credited to the insurer against your award. For one accident the Plaintiff is dealing with one $40,000 deductible. For two accidents, the Plaintiff is dealing with 2 deductibles ($40,000/accident x 2 accidents = $80,000). Three accidents and you’re looking at just shy of $120,000 in deductibles! That means for your personal injury lawyer to even recover one dollar on your behalf, a jury must award you greater than the value of stacked deductibles in your case. This makes for a very tricky endeavour. You can appreciate that with each subsequent car accident during the litigation period, you are essentially losing $40,000 per accident.

But Brian: what happens if I don’t elect to sue in relation to the second or third car accident? Good question.linkedin-2-300x300

The Theory of Passing the Buck: One of the favourite tricks of insurance companies is deflecting blame from their insured, and passing it along to another insurer. The insurance defence lawyer from accident #1 will invariably find out about accident #2. How? They have their ways. Police record searches. Driver record searches. Insurance claim checks. Notations in the clinical notes and records of your family doctor out other therapists. Notations in your OHIP summary. Asking you questions under oath at an Examination for Discovery (you can’t lie under oath). Insurance companies are very good at getting dirt on people and finding out information to best suit their needs. Once they are alerted to the second (or third) accident, they will attempt to deflect the blame for any (or all) of your injuries to the other accident. If you don’t opt to pursue an action for the second accident, they can always bring the Defendant of that second accident in to the mix by way of Third Party claim or even a completely separate action to be tried together with the main action to seek a set off of damages from the second Defendant. In this situation, the Defendants will be blaming each other for the Plaintiff’s damages. Or, they may team up together to show that the Plaintiff sustained zero damages or injuries in relation to both accidents. Either way, it makes for an uphill and more complicated battle for the Plaintiff and his/her personal injury lawyer.

The passing the buck theory gets even more complex where the Plaintiff was negligent in causing accident #2. In such a case, the Defendant in accident #1 will argue that the Plaintiff was the author of their own misfortune in causing accident #2 which has led to the bulk of their alleged damages and injuries.

Multiple accidents slow the pace of play: With two more more accidents, you are likely dealing with two or more different insurers along with two or more different defence lawyers. Each defence lawyer and insurer has a different approach to handling cases. Getting all of the lawyers and insurers on the same page in order to achieve a settlement can be difficult particularly where one insurer is taking a hard line “zero payment” approach and forcing a Plaintiff’s hand to trial, while the other insurer is seeking to negotiate a settlement of their perceived fair share of the case. Asking a Plaintiff to assess the impact which one accident had over another, and then quantifying that impact is often difficult. The insurer for the non settling Defendant will often state that the settlement fell under market value and that the settling defendant did not pay their fair share. This can create additional conflict in resolving a personal injury action.

One must also consider the logistics of scheduling when multiple parties are involved in litigation. Getting lawyers along with their clients and insurance reps in the same room on the same day, at a mutually agreeable location is like herding cats. Assistants and law clerks are paid big bucks to do this sort of thing. Ask any legal assistant out there how difficult scheduling can be for two parties, let along three or more. This is why good law clerks and legal assistants are worth their weight in gold.

Insurers team up to beat down a Plaintiff: Dealing with one multi billion dollar insurer is hard enough. But when two or more insurers pool their resources and team up to defeat a Plaintiff’s claim, it can be over bearing. The Rules of Civil Procedure and Courts of Justice Act allow insurers to conduct surveillance and compel Plaintiffs to attend at multiple defence medical examinations. Each Defendant has the right to conduct their own surveillance and send the Plaintiff to their own Defence Medical Examinations. This can amount to tens of hundreds of hours of surveillance against a Plaintiff, along with multiple Defence Medical Examinations on behalf of each Defendant insurer. Not fun for a Plaintiff and will require a series of costly rebuttal reports on the Plaintiff side.


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