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Serious Accident? Insurance matters!

In tort law, one of the first and most important things lawyers are taught is to sue a Defendant with deep pockets and an ability to pay out a Judgment.

The only remedy in a personal injury case is money.

There is no ticker tape parade for the victor of a lawsuit. The Court cannot order the Defendant apologize, or be your servant for as long as it takes a Plaintiff to recover from his/her injuries. All which a Judge or Jury can do is order that the Defendant pay you compensation for your injuries and damages.

If a Defendant does not have the ability to pay the Judgment, it doesn’t mean that they go to jail. It also doesn’t mean that they can’t drive a car, work, or otherwise have their freedoms taken away. If a Defendant doesn’t pay, and doesn’t have the assets to pay a Judgment; then the Plaintiff is out of luck. The Judgment is without any real monetary value. While it may be satisfying or vindicating for a Plaintiff to have “won” the case; if the Defendant doesn’t have the ability to pay the Judgment the Plaintiff won’t get any compensation.

This is why it’s so important for a Plaintiff to sue a Defendant who has the ability to payout on a potential Judgment. This is why insurance matters.

These issues frequently arise in dog bite or dog attack claims and in assault claims. Why?

To be a dog owner, one does not need to have any form of insurance protection. There are no financial or legal barriers to dog ownership. A billionaire business tycoon can own a dog the same way that a homeless person on ODSP can own a dog.

When a billionaire’s dog attacks you, there will be a pocket to recover from. When a homeless person’s dog attacks you, there will likely be no pockets to recover from.

More often that not, dog attack cases are covered by the owner’s home insurance, or rental insurance. If the dog owner does not own a home, rent a home, or carry property insurance then there will likely be no coverage there.

Unlike a car accident case where your own insurer jumps into the shoes of an uninsured driver to indemnify the policy holder on the claim; there is no such coverage in dog bite cases. If the dog owner has no assets and no forms of insurance protection, then the Plaintiff might be out of luck to get compensated for their claim.

This is not to say that they don’t have a meritorious claim. As previously stated, the case may succeed. But, if a Defendant cannot pay the Judgment, winning the case is of no monetary value. In fact the Plaintiff may loose money after “winning” the case needing to pay legal fees and disbursements on an hourly rate retainer model.

When dealing with assault cases, it’s important to keep in mind that there is no insurance which will cover a criminal activity or an intentional act of violence. If a Plaintiff is struck by a Defendant in a fight; there won’t be any insurance coverage to pay out on a potential lawsuit against the Defendant for their violence and the ensuing injuries which s/he has caused.

This is why personal injuries lawyers joke that if you are going to get assaulted; make sure that the person who does the assaulting is rich! If they are without assets or impecunious, the injured Plaintiff won’t be able to collect on his/her judgment. The Plaintiff will likely win their case, but it will be nothing but a moral victory because trying to collect from a judgment proof Defendant is a futile exercise.linkedin-2-300x300

Often we use the example of getting assault by a homeless person (who is without any tangible or monetary assets). How can a Plaintiff possibly hope to collect. No doubt they will win their case on liability and damages; but collecting on that Judgment simply isn’t going to happen. You can’t get blood from a stone.

Please keep in mind that money coming from Ontario Works or ODSP to a Defendant can be garnished for the purposes of a personal injury law suit. So don’t get too far ahead of yourselves when it comes to thinking about these things. You may have heard stories of Ontario Works and ODSP payments being garnished for support orders in Family Law cases. That is correct! In Family Law, there are some situations where Ontario Works and ODSP payments can be garnished. But these payments cannot be garnished for personal injury cases; even when a Plaintiff gets judgment against a Defendant whose only asset is Ontario Works or ODSP. These Defendant are for all intents and purposes Judgment proof.

Insurance also matters in car accident cases. Often we see people driving without car insurance. This is illegal. But it doesn’t mean that the Defendant driver is going to jail for not driving with car insurance. All it does is create some potential coverage issues. There are a number of variables when sorting out which insurance company has to pay out on a claim. But, as a rule of thumb; if the Defendant driver does NOT have any car insurance then the Plaintiff’s car insurer will jump into the shoes of the at fault Defendant driver and defend them. It creates an odd situation whereby the Plaintiff’s own insurance company is fighting against their own insured; but this is how our Insurance Laws in Ontario work.  Even if the Plaintiff was a pedestrian, if they had their own car insurance, their own insurer will be named in the lawsuit. This is why it’s a good idea to have car insurance.

In situations were a Plaintiff has no car insurance (like a pedestrian or a cyclist) and the at fault driver was operating his/her vehicle illegally without car insurance; then and only then will the Ontario Motor Vehicle Accident Claims Fund respond to the claim. The problem there is that the policy limits for the claim will be capped at just $200,000. A standard car insurance policy in Ontario is 5x greater at $1,000,000. This also explains why it’s a good idea to have car insurance as you will have access to greater protection should things go wrong on the road.

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