Toronto Injury Lawyer Blog
Personal injury cases are never as simple as they might appear to be.
The case of an apparently simple slip and fall, just isn’t so simple.
On the surface, the case is very easy to summarize. A person is walking on a private walkway. The walkway was not properly maintained for the winter. The person slips, falls, and breaks their ankle. Ouch!
On the surface, the Plaintiff would sue the private property owner. That makes total sense. The dynamic of the litigation would be a single Plaintiff against a single insurer acting on behalf of the private property owner.
But that’s not what actually happens.
The private property owner is not a single entity. The property is owned by three different corporate entities (that’s three different defendants). All of these Defendants may have different insurers for the loss, or they may have the same insurer under one policy. Your personal injury lawyer can find this out once the litigation proceeds.
The property owners inform your personal injury lawyer that there was a property management company. That’s an additional Defendant to add to the mix, with a different insurer altogether.
Now that the property management company is added, they inform you that there was a winter maintenance contract in place. That’s a 5th Defendant to the mix.
The winter maintenance contractor informs you that they subcontracted the job for the period of time to a difference winter maintenance contractor. So, this winter maintenance subcontractor needs to be added to the claim as well. If you are keeping score at home, we are now up to 6 Defendants for what appeared to be a simple slip and fall case.
That’s 6 potential Defendants. 6 potential insurers. 6 potential defence lawyers all having to respond to the slip and fall case.
The mechanics of the fall itself speak for themselves and are quite straight forward. But what needs to happen behind the scenes is far from that. It’s these behind the scenes issue which slow down and complicate the personal injury case as it tries to creep forward.
What will happen behind the scenes is that all 6 Defendants will try to sort our coverage and indemnification issues. They won’t fully concentrate on liability or damages until these coverage and indemnification issues are sorted out. Basically, the 6 Defendants argue amongst themselves which Defendant will be responsible for the Plaintiff’s damages. Sometimes a single Defendant is entirely responsible. Other times, the apportionment of liability is split between multiple Defendants.
These discussions can take weeks, months, or even years. Even harder for the innocent accident victim to grasp is that the Plaintiff is not privy to these behind the scenes negotiations between defence lawyers. What’s happening behind the doors of the insurance defence lawyers is entirely outside of their control. This can be very frustrating, particularly as the case drags on.
While coverage and indemnification issues are being sorted out, there will likely be no offers made of any significance to a Plaintiff. The case won’t settle for any meaningful amount because none of the insurers are prepared to assume responsibility for the accident itself. They are still playing a game of litigation hot potato, where they are trying to pass the buck to another party.
None of this is fair to the Plaintiff. But life isn’t fair. And the way that personal injury law works certainly isn’t fair. This is a hard concept for many Plaintiffs to grasp. How can the law not be fair? There are plenty of examples of laws not being fair.
Were laws which discriminated against people of colour and visible minorities fair?
Were laws which discriminated against women fair?
Were laws discriminating against LGBTQ people fair?
Laws do not have to be fair. Laws are laws, whether they are fair or not. There are plenty of examples of laws which negatively impact innocent accident victims which aren’t fair. But that’s how the law works. And the legal framework is all a Plaintiff has in order to get the best outcome which they can under the law.
Back to our seemingly uncomplicated/complicated slip and fall case. One Defendant may assess the case at $100,000. Another Defendant may assessment case at $50,000. Another Defendant may assess the case at $10,000. There may be backroom discussions not only about who is responsible to pay, but how much the case is worth. Those discussions will impact how much money will be available to a Plaintiff in an out of court settlement. If a Defendant who ha a greater responsibility to pay, yet has a much lesser assessment of the value of the case; the result will be not as much money on the table to a Plaintiff before trial.
The last issue will be what takes place at Examinations for Discovery, and potentially at trial. All 6 Defendants are entitled to examined the Plaintiff for discovery. That means that all 6 of their lawyers get to ask the Plaintiff questions, under oath. It’s not a fun process to begin with. That process is made even more difficult with more lawyers seemingly ganging up on the Plaintiff to defeat his/her claim.
At trial, there may be moments when the Defendants are beating up on each other. They are doing the Plaintiff’s job for the Plaintiff. But inevitably, all of the Defendants will all come together to try to defeat a Plaintiff’s claim. Sometimes, this is a very effective tactic. Other times, the tactic backfires as the Plaintiff is able to draw the sympathy of the Judge and/or Jury given the barrage of legal attacks which s/he is under. It doesn’t seem like a fair fight having 6 Defendants gang up a single Plaintiff. The optics sometimes don’t sit right and it favours the Plaintiff.
The final point is the money itself. A Plaintiff does not care if the money comes from 1, 2 or all 6 Defendants. So long as the money comes in, and the amount is right. Sometimes, it works to a Plaintiff’s advantage having more pockets to collect from. A $100,000 settlement might seem like a lot for a single party. But if the award is divided in some way between 6 Defendants, the settlement might be greater given the financial burden on each Defendant is reduced. $20,000 x 6 Defendants = $120,000 This is why a Plaintiff won’t care from which insurer the money comes, so long as it comes in.
