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Personal Injury Cases: Why does Insurance Matter?

People get injured in all sort of ways.

Right now, as you are reading this instalment of the Toronto Injury Lawyer Blog; you probably aren’t thinking that something bad is going to happen to you or a loved one. That’s normal. And that’s why when these sort of terrible or catastrophic events happen; they are called accidents; because they are out of the blue, and unexpected.

When the injuries are catastrophic in nature, having your lawyer establish the nature and severity of those injuries might be the easiest part of the case. A Defendant would look rather foolish attempting to suggest that catastrophic injuries (paraplegia, quadriplegia, or a traumatic brain injury) aren’t very serious, life changing injuries which should be discarded are minor and of no significant consequence.

What can be more challenging for a Plaintiff and his her personal injury lawyer is finding the insurance to pay out for the lawsuit.

Insurance in Car Accident Cases

There will always be insurance there in a car accident case. The Compulsory Automobile Insurance Act makes it a requirement for all motorists to have car insurance when they drive. Some people break the law and drive their cars without any car insurance. Or they are driving their cars without knowing that their car insurance has expired.

Not to worry.

The insurer of last resort is the Motor Vehicle Accident Claims Fund, which covers innocent accident victims who have been involved in a car accident with a motorist who did not have car insurance.

The nice thing is that there is car insurance for the Plaintiff to claim upon when a Defendant is driving illegally without car insurance.

The bad thing is that the maximum available to a Plaintiff in these Claims Fund cases is only $200,000. If the Defendant (or the Plaintiff) had proper car insurance, then the minimum available under the policy would be $1,000,000; with the potential for more depending on the insurance policy.

Insurance in Dog Bite and Dog Attack Cases

In this example, a Plaintiff is viciously attacked by a dog, and sustains very serious cuts and lacerations which require surgery and stitches. Just like in the car accident example above, the injuries are not the issue.

The issue here is finding insurance and a source of payment to compensate the Plaintiff for his/her injuries.

Unlike operating a car; there is not legal requirement to have any sort of insurance to own a dog.

If your dog attacks someone; your homeowner’s or tenant insurance will cover the legal costs of defending a claim; and will also pay out on any potential award. If you don’t have any homeowner’s or tenant insurance, then there is no insurance coverage available to you.

This is important to a Plaintiff. A Plaintiff cannot get blood from a stone. If there is no insurance coverage there; then a Plaintiff may have a successful case at law. But if a Defendant dog owner does not have the means to pay out on a Judgment, the Plaintiff’s Judgment is unenforceable and only as valuable as the paper upon which it is written.

This is why we tell people that if they are going to get attacked by a dog, make sure that the dog owner is either rich, or is a home owner. Suing a Defendant dog owner who is a renter on ODSP or who lives in a rental apartment (without tenant insurance) is a road to nowheresville in terms of getting the Plaintiff compensated.linkedin-2-300x300

It should be noted that a Plaintiff cannot garnish monthly ODSP payments to a Defendant.

Insurance in Assault Cases

In this example, a Plaintiff is at the grocery store, walking on the street, or in line at a fast food restaurant when they are attacked by a stranger. Or perhaps the Plaintiff gets in to a fight trying to defend themselves from attack. In both examples the Plaintiff sustains very serious injuries and wants to sue the attacker.

The Plaintiff can no doubt sue. And in each scenario, they are on the right side of the law. They have done nothing wrong and have sustained very serious injuries.

The question is whether or not they will be able to collect on any potential judgment.

There is no insurance product which will insure a person for his/her criminal acts, or acts of violence. This means that there is no insurance out there which will cover a person for acting violently and hurting someone.

So, just like in the dog attack example above, a Plaintiff needs to sue a Defendant who had deep pockets, and the ability to pay out on a potential judgment. The odds of this are rare, because even the wealthiest people can be judgment proof. Their assets may in the names of different legal entities (their spouses, children or holding companies). There may be mortgages or liens on their assets. They may be operating a cash business making garnishment a difficult challenge.

It’s for these reasons that in assault cases we see many personal injury lawyers add the owner or the premises where the assault took place or the security company in an attempt to find some sort of coverage. The allegations are that the owner knew or ought to have known that their premises was dangerous to invitees and did not have adequate security or didn’t do enough to protect innocent patrons. The same sort of allegations apply to the security company which didn’t do a good enough job to prevent the assault, or failed to have proper security checks and thereby allowed for weapons to enter the premises.

Finding insurance in these assault cases can prove to be very difficult. But it does happen. We see it a lot in restaurant/bar assaults involving over serving bar patrons, or the excess use of force by security guards or bouncers.

A Plaintiff can have the worst injuries ever seen. And those injuries can be attributed 100% to an at fault Defendant. But if there is no insurance there to compensate for those injuries, then the personal injury case will be of next to no real monetary value for a Plaintiff if they cannot collect on a Judgment.



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