Clients frequently believe that because a car accident happened, and they’re not at fault, that they’re automatically entitled to compensation for pain and suffering.
That might have been the case in the 1960’s or 1970’s during the “auto-lotto“, but that’s certainly not the case in Ontario anymore.
Lawyers refer to those times as the “auto-lotto” because just being involved in a car accident, no matter how minor, likely resulted in some form of recovery for the Plaintiff.
The laws have changed dramatically, and because of these changes, insurers are looking to different factors in their assessments to claims.
Having over a decade of experience representing accident victims in helping them get the compensation they deserve, our lawyers have observed several trends which insurers look to in assessing the value to car accident claims. These little things aren’t things which people normally think of; but which insurers place a lot of weight on.
With this latest edition of the Toronto Injury Lawyer Blog, we will examine what those sometimes overlooked factors are which insurers place a lot of weight on; which people tend not to give much thought about.
1. Where liability is not an issue; such as in a rear-end collision; an insurer will overlook fault. The way that the law is presently structured, liability in many cases is an after thought. The real issue is what are the injuries and whether or not the injuries sustained in the motor vehicle accident will surpass the threshold. Regardless of whether or not the accident was 100% the Defendant’s fault, if the Plaintiff’s injuries don’t surpass the threshold, or aren’t enough to get over the $30,000 deductible for motor vehicle accident claims; it won’t make any difference HOW the accident happened to an insurer.
2. What was the property damage done to the car in the accident? So you get hit by a drunk driver. The car accident wasn’t a major collision as it happened at very low speeds. The other guy was clearly at fault. The insurer will first overlook fault because his guy was clearly in the wrong. The next thing they will examine is the speed of the collision and the damage done to both vehicles. It’s possible that major injuries can occur in vehicles at low speeds; but this takes significant convincing to a jury. It also takes significant convincing to a jury that catastrophic injuries were the result of a car accident where there was no damage to Car #1, and just a $500 repair job to a bumper in Car #2. Compare the property damage to that accident vs. a highway accident at high speeds of 100km/hr where both cars are crumpled into accordions following the collision and have to be written off after the car accident. The images of those crumpled cars resonates with a jury and causes them to think that this was a very serious accident resulting in very serious injuries. But, the images of the vehicles in the low speed, low impact collision don’t have the same impact on a jury and causes them to think that the accident was just an innocent bump which could not have caused injuries of any significant consequence. The images of the vehicles and the property damage file to the vehicles post collision can be very compelling evidence in a car accident case which insurers like giving weight to.
3. The Plaintiff’s level of pre-accident functioning. Was the Plaintiff on disability before the accident or were they gainfully employed? Was the Plaintiff taking loads of medication prior to the car accident for pre-existing chronic pain; or was the Plaintiff healthy like a horse and hadn’t seen their family doctor in years because there was no need to do so? Has this car accident given the Plaintiff incentive to “milk it” or has it genuinely ruined the Plaintiff’s life? Insurers place a lot of weight in the accident victim’s level of functioning and the drop off which the accident may, or may not have caused.
4. What level of treatment and how much medication is the Plaintiff taking as a result of the car accident? If a Plaintiff is complaining about chronic pain, depression, anxiety, stress and headaches as a result of injuries sustained in a car accident, what are they doing about it? Are they seeing their family doctor on a regular basis? Have they been referred to a analyst such as a chronic pain doctor, psychiatrist or spine analyst? Are they taking or have they been prescribed medication? Are they actively getting treatment for their injuries such as physiotherapy, occupational therapy, psychological counselling or working with a social worker in an attempt to get better? An insurer will make the illogical jump that a Plaintiff who is NOT getting such treatment CANNOT be as hurt as he/she is claiming to be if they’re not taking medication or engaging in such treatment. I don’t agree with this illogical conclusion; but it’s one which EVERY insurer our law firm has dealt with makes. It’s also a conclusion which lawyers for insurance companies try to persuade upon juries. If you’re injured: you take meds and get treatment. If you’re healthy: you don’t take meds and there’s no need for you to see your doctor. This is Courtroom logic which gets adhered to more often that I’d like to see.
5. What’s the age of the accident victim? Chi Ali once said “Age ain’t nothing but a number“. Unfortunately, at law, age is much more than that. Insurers think about the age of the accident victim because it’s a figure for exposure. If the accident victim is a teenager, then their life expectancy is LONG. With a long life, comes many years of future income loss and many years of future care which translates in to MORE MONEY for the claim. This is called exposure. Now take the case of an 88 year old accident victim. Their life expectancy is much shorter than that of a teenager. Even if they life to 95, that’s still umpteen less years to manage than dealing with the average life expectancy of a teenager. And here’s the kicker. If the old age accident victim DIES while their case in on-going, it creates a definite time period for the insurer to work with. There are no longer any future care needs which need to be taken in to consideration. If liability or damages are an issue, the Plaintiff also can’t testify at trial because they’re dead. There goes star witness #1. If the senior citizen dies on account of medical complications or a pre-existing condition; which is often the case with the elderly, than the insurer will argue that the accident wasn’t the primary or the secondary cause of death. There are a lot of potential outs for the insurer to examine in such cases. That’s why the age of the accident victim is always an important consideration when placing a value on a personal injury case.
6. What collateral benefits, if any, are available to the Plaintiff? Every dollar in LTD benefits, pension benefits, or health/medical benefits available to an accident victim presents a potential set off for an insurance company to reduce their potential exposure. If you have a great benefits plan, that’s fantastic. But that very same fantastic benefits plan may act as a shield for an insurance company to pay less money on a personal injury claim when assessing care claims and income loss claims. The mantra of “no double dipping” applies here, and is one which gets overlooked by accident victims but scrutinized very carefully by accident victims.
The common thread we see in all of these examples is that insurers do their best to take the emotion out of these car accident cases. For them, it’s a business. But for you, it’s your life and life is emotional and ever changing. Getting an insurer to understand that is never easy.
Enough law talk? Sure. Care to chat about Toronto’s sports franchises? Toronto’s hockey team is a joke with players missing meetings on account of time change issues. Toronto’s basketball team is the definition of bi-polar. And Toronto’s baseball team can’t seem to stay healthy: and the regular season hasn’t even started yet! Not much to talk about if you’re a Toronto sports fan.