We get a lot of questions from the readers of the Toronto Injury Lawyer Blog. Some serious. Some silly. This will be a mailbag installment of our blog whereby personal injury lawyer Brian Goldfinger will respond to those questions.
Please note that answers to your questions to do constitute a solicitor-client relationship, nor are they intended to form a full legal opinion as we have only received a small sample size of your case/question. The answers are general in nature, and are not intended to be former legal advice. For proper legal advice, consult with, and retain your own personal injury lawyer who will have a full understanding of your case. Every personal injury case is fact driven, and fact specific. Your case will likely have its own unique facts which will drive it in its own direction, different from other cases and different from the answers to questions below.
If you have questions for the mailbag section of the Toronto Injury Lawyer Blog, please tweet them to @Goldfingerlaw or email them to email@example.com and reference “Blog MailBag” in the subject line. Please mention your name, and the City/Town where you reside, so we can refer to it in future posts.
Thank you in advance for your questions and queries. Funny ones certainly make us smile!
Rick in Thornhill Asks: You speak a lot about the $36,920 deductible for pain and suffering in car accident cases. Where does that money go?
Goldfinger: That money vanishes. Nobody knows. The insurer essentially doesn’t have to pay it out. But I’m not sure if they can report it as a loss or business expense for tax purposes. Suppose that an insurer is ordered to pay a gross award of $100,000. But, after the application of the $36,920 deductible, it’s a net payout of $63,080. Does the insurer report the $100,000 as a loss or business expense; or is it just $63,080? I suppose I answered your question, but my answer triggered another question best put to an accountant who works in the insurance industry. Should Justin Trudeau, Bill Morneau and Kathleen Wynn now crack down on insurers not paying their fair share? Another question!
Esther in Cambridge asks: Are slip and fall accidents subject to the $36,920 deductible?
Goldfinger: No! Only motor vehicle accidents are subject to the deductible. Doesn’t seem right that Defendant property owners, Defendant dog owners, Defendant individuals in assault claims aren’t afforded the same protections as Defendant drivers who may be 100% at fault for a car accident. Even a drunk driver, a distracted texting driver, or a driver with no driver’s license or a suspended driver’s license is afforded the luxury of a $36,920 monetary cushion in the form of the deductible.
Debbie in Middlesex County asks: After you win a case, who pays the award? Does the Defendant have to pay?
Goldfinger: The first rule of personal injury litigation is make sure you’re suing someone who can pay out on the award. It can take years to get a case resolved. But, if the Defendant does not have the ability to pay out on a judgment, then that judgment has no value and all of your work and energy will not be rewarded with any financial compensation. Most, if not all of the cases which our law firm deals with have insurance companies which act on behalf of the Defendants which we sue. Insurers have the ability to pay out on these awards. The Defendant personally does not have to pay out on the award if they are insured, and if they have proper coverage for the act giving rise to the claim. However, once an award is paid out by the insurance company, they then have the right to pursue the amount which they paid out on the claim from the individual defendant, should they wish to do so. This is called a subrograted interest, or subrogation. In most cases, insurers do not seek out subrograted payments from individual Defendants, particularly for honest mistakes. That would just be a bad business practice for their reputation. However, when there are egregious acts of negligence or wrong doing (drag racing causing accident, texting while driving, multiple drunk driving offences, one person driving without insurance, or simply refusing to co-operate with your own insurer’s investigations), it’s not out of the ordinary for an insurer to come back and then seek out their subrogated interest against an individual Defendant. But, just like the first rule of personal injury litigation, the insurer can’t get blood from a stone. So if the individual Defendant has no assets, then there is really very little for the insurer to gain from this exercise.
Thomas is Peterborough asks: Are you the Doogie Howser of lawyers?
Goldfinger: No. Don’t let the fresh face fool you. I’ve been practicing law for longer than you would think (articled in 2003 in Toronto, called in 2004), and my law firm Goldfinger Injury Lawyers will be celebrating its 10 year anniversary in 2018. But I’m certainly no Doogie Howser. A decade of serving accident victims, families and their loved ones. Can’t believe it’s been 10 years of running my own law firm. Wow! Doogie Howser was also far more intelligent and witty than I could ever be. I mean, let’s look at Doogie’s credentials:
He earned a perfect score on the SAT at the age of six, completed high school in nine weeks at the age of nine, graduated from Princeton University in 1983 at age 10, and finished medical school four years later. At age 14, Howser was the youngest licensed doctor in the United States.
I can’t compete with that. Doogie 1 Brian 0
Sarah from Toronto asks: How often are you in Court?
Goldfinger: That’s tough to say. While 99% of personal injury cases settle without going to trial, that doesn’t necessarily mean that they don’t see the inside of the Courtroom. Our lawyers routinely bring motions before Masters or Judges for such things as Amending the Statement of Claim, 30.10 Motions for Third Party Productions, WAGG motions for the complete unedited police file, motions to compel attendance of parties to attend or re-attend at Examination for Discovery, motions for Undertakings/Refusals, motions for substituted service or to extend the time to serve the Statement of Claim. These motions are routine and are a large part of the job as a personal injury lawyer. Fortunately, I have a great team of lawyers and clerks working with me to prepare these materials and to attend at Court when I’m not available.
It should also be noted that some people confuse Court time with time in front of a panel or administrative tribunal. Our lawyers routinely appears before the Social Security Tribunal for Canada Pension Plan Disability Appeal Hearings; the Criminal Injuries Compensation Board, and the License Appeal Tribunal for accident benefit disputes. Some people see these appearance as “Court Time“, when it’s not before the Superior Court of Justice.