Toronto Injury Lawyer Blog
When I was a young personal injury lawyer, an odd case appeared on my desk.
The Plaintiff was an older automobile executive, who broke 3 vertebrae, torn his rotator cuff and fractured his skull in a car accident.
The injuries were quite significant. They prevented the client from returning to work, or engaging in his usual personal care and recreational activities. His life would be forever changed as a result of the car accident.
What was odd was that the car accident was a single car accident. The client was a passenger in the vehicle. The driver had lost control, drove the car off the shoulder of the road, and flipped the vehicle into a ditch along a deserted country road. I imagine that the car accident could have been even more serious had there been more vehicles involved.
So, in that case, the passenger would sue the driver for having lost control and flipped over the vehicle.
In this case, the driver was the client’s own daughter.
Isn’t that strange. A father, needing to sue his own daughter for his personal injuries arising from a car accident. It’s not like the daughter intentionally tried to flip over the vehicle. It was, by all accounts; an accident.
But how does that work, and what are the ramifications of a father, having to sue his own child for damages in a personal injury case? Can the daughter go to jail? Will her credit rating be ruined forever? Does she need to hire a personal injury lawyer to defend her claim? Will she need to go to trial and square off against her own father in open Court? Will this father/daughter personal injury case get really nasty such that Dad will take away Daughter’s TV and cell phone privileges?
Here’s what you need to know for these sort of cases.
Daughter had car insurance. She was insured under her father’s policy. So, she will not need to go out and hire a personal injury lawyer to defend the claim. Nor will she need to pay out of pocket to retain a lawyer, or to pay out on any potential award in the case.
While Father names his own Daughter as a Defendant in the claim, it’s really not the Daughter who pays for anything at all. It’s the insurance company who writes all of the checks. It’s the insurance company that does all of the litigation strategy behind the scenes. It’s the insurance company who calls all of the shots with respect to how the claim is handled and defended throughout the course of the litigation. The daughter Defendant, for all intents and purposes, really plays no role whatsoever in any of the legal matters. She is only a named party, with no say and no real power, authority or influence in how the claim proceeds, or is defended. She is a vessel for the insurance company’s strategy and defense. Even if she disagrees with their tactics, she really has no other choice but to go along with what’s happening.
You see, from a strategic standpoint, while Father has named his Daughter as a Defendant, the real target is his own insurance company which was insuring Daughter a the time of the accident. By naming Daughter as a Defendant, it triggered the insurance company to step in to her shoes and to defend the claim. There is no other way. Father cannot simply name the insurance company as a Defendant in this case. In order to get to the insurance company’s coverage/money, Daughter needed to be named as a Defendant in the case. While that might sound strange, that’s just how the law works. It’s nothing personal, even though having the name your family member as a Defendant certainly sounds very personal.
What about the worry about Daughter’s insurance premiums going up as a result of the claim against her?
That’s a good question.
The reality is that the accident was a serious one. The car was a write off, and long before any personal injury claim was issued, the family reported the car accident to their insurer because the damage was so bad. The fact that a personal injury claim was commenced later is irrelevant. What triggered any potential increase to their coverage was the reporting of the car accident in the first place, which they had to do because it was such a bad accident (the vehicle was flipped over and was a write off). Police, ambulance and fire had to attend at the scene. Do you really think you can hide that sort of thing from an insurer? There is absolutely no strategic advantage in doing so, not to mention it’s against the law.
Let’s say that there is an accident, and the car insurance premiums go up by 5%. The average car insurance in Ontario is $1,744. If your rates go up 5% because of a car accident, that’s an increase of just $87.20. That cost is nothing compared to paying a lawyer thousands to defend a claim, or to pay out on a Judgment against you. It’s important for accident victims, and those who have caused accidents to see the forest through the trees.
The final reality is that approximately 99% of personal injury cases settle without ever going to trial. The likelihood of an insurer making the strategic decision to put a loving family member of the Plaintiff up on the stand in the hopes that their testimony helps the Defence’s case and not the Plaintiff is a very risky decision. That strategy likely won’t work. The Defendant will likely empathize and take the side of the Plaintiff when it comes to liability, damages and causation. When the Defendant is on the Plaintiff’s side, it doesn’t make for a very good defence in a personal injury case. The only people who will likely support the Defendant insurer’s position are their medical experts, who are paid by the insurance company to advocate on their behalf. The optics for that sort of defence don’t resonate or present well.
