Automobile Accident Law FAQ

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      Automobile Accident Law FAQ

      Get answers to your frequently asked questions on accident benefits law.

      Understanding Accident Benefits

      What are accident benefits?

      If you’ve been involved in an accident and are injured, you are may be entitled to financial benefits that will help support your recovery. Accident benefits provide compensation if you, passengers, or pedestrians are injured in an accident regardless of who is at fault.

      If you are in an accident, report your injuries to your insurer within seven days of your accident. After you report your injuries, your insurer will send you an Application for Accident Benefits package. This must be completed within 30 days from the time you receive it. If you don’t complete it within 30 days, you have to provide a reasonable explanation regarding why the form was not completed. It is important to retain a lawyer early to help with the application for Accident Benefits to make sure that your claim is properly documented and submitted to the insurer. There are numerous benefits available under the policy and the insurance company will not go out of its way to help you secure all the benefits that you are entitled to. A lawyer will also review your policy to confirm the level of coverage that you have. Furthermore, accident benefits claims become adversarial as insurance companies employ strategies so that they stop paying your claim. A lawyer will let them understand the significance of your injuries and how they affect your daily life, including your ability to work. Our lawyers will fight for your income continuation to make sure that you can continue to pay your bills even though you have been seriously injured in an accident and cannot work.

      What if the person who caused the accident has no insurance?

      In situations like these, where an at-fault driver has no insurance, or you were a victim of a hit and run, you have access to the uninsured motorist coverage provided by your insurance policy.

      The Ontario Insurance Act section 265 legislates that all people must have uninsured coverage. This means that every insurance contract or policy must have coverage for injuries caused by uninsured and unidentified drivers.

      If a situation arises where the other driver is uninsured, or you are involved in a hit and run and the at-fault driver is unknown, your insurer steps into the shoes of the uninsured or unidentified driver and the amount recoverable is normally limited to $200,000.00.

      In addition to the uninsured and unidentified coverage at $200,000, most people have purchased underinsured coverage, known as the Family Protection Endorsement, or OPCF 44R. This endorsement will ensure that you have the limit of the liability coverage that you purchased even if the at fault motorist has less. This addition to the automobile coverage protects you if you are involved in an automobile accident with someone who does not have enough insurance coverage to satisfy your claims for damages. Our firm has significant experience in these matters. It is the role of the personal injury lawyer to find coverages and money to help compensate those who have sustained serious and catastrophic injuries.

      What if I was driving my car without car insurance and was involved in an accident?

      Ontario law requires that all motorists have auto insurance.

      If you are found driving without valid auto insurance, you can have your driver’s license suspended and your vehicle impounded. You may also be charged and fined.

      If you are convicted of driving without valid auto insurance, your next insurance company may consider you a “high-risk” driver and charge you higher premiums or refuse to sell you insurance altogether.

      If you are injured in an accident while driving an uninsured vehicle:

      • you may not be entitled to receive income replacement and/or non-earner benefits; and
      • you may not be allowed to sue the at-fault driver for compensation as a result of injuries received in the accident.

      More importantly, if you are found to be at fault for an accident causing injury or death to another person, you may be held personally responsible for that person’s claims for damages for their injuries.

      What if the person who is injured can’t make a decision due to mental incapacity?

      Unfortunately, our firm has seen this numerous times. Sometimes, injured people with serious brain injuries or psychiatric injury are unable to manage their own affairs, pay their bills, retain and instruct a lawyer or enter into any contract. There are special tests to determine if someone has capacity. Ultimately, if the person lacks capacity, our laws protect that person and require that a Guardian be appointed to handle the person’s affairs. Usually, this is a family member who has the person’s best interests at heart in any event. If no family member consents to act as a Guardian, the Public Guardian’s Office will be appointed and handle the person’s affairs. Once a Guardian is appointed, then the Guardian can instruct us to settle a claim, but this is also subject to Court Approval, where a Judge will determine if the settlement is in the best interest of the injured party. In situations like this, it is absolutely imperative that you retain an experienced personal injury lawyer like us to handle this aspect of your matter as it is complex and requires advocacy skills that only few personal injury lawyers actually have.

      I have been asked to complete many complicated insurance forms. Will someone help me complete my accident benefits form?

      We don’t recommend completing the insurance forms on your own as they are complicated and should be completed by an experienced professional to make certain there are no errors or omissions of critical information. Our lawyers are experienced in accident benefits and will ensure that your forms are filled out correctly to make certain that your rights are protected. Over the years, we have seen many mistakes made by people who filled their accident benefits application forms on their own, which prejudiced their claims with the insurance company right off the bat. Retain a personal injury lawyer before the forms are filled in to make sure that you are properly protected from the beginning.

      What are the Benefits that are Available from my Insurance Company?

      There are three levels of Medical, Rehabilitation and Attendant Care benefits, but we will deal with the top two levels.

      Non-Catastrophic Benefits:

      For the non-catastrophic level of medical, rehab and attendant care benefits you are entitled to up to $65,000.00 for expenses for up to 5 years. In terms of attendant care, the maximum is up to $3,000.00 per month which reduces the $65,000.00 limit. In terms of income replacement, you can receive 70% of your gross income, up to $400.00 per week. You may have optional benefits that increase your income replacement up to $1,000.00 per week. It is important that you know what coverages you have and make sure that you retain a personal injury lawyer to confirm your coverages. If you are not earning an income, you can receive up to $185.00 per week as a non-earner for up to 2 years after the accident. If death occurs, there is coverage for funeral benefits of up to $6,000.00, while a spouse and dependents are entitled to further benefits of $25,000.00 and $10,000.00 respectively.

      Catastrophic Benefits:

      For catastrophic injuries you are entitled to up to $1, 000, 000.00 combined for medical and rehabilitation expenses and attendant care. In terms of attendant care benefits, you can receive up to $6,000.00 per month. There is also coverage for housekeeping of up to $100.00 per week, and visitor expenses for life. Additional benefits include caregiver benefits, income replacement benefits, non-earner benefits, death benefits and funeral benefits. You also may be entitled to rehabilitation case manager services. Again, you may have optional benefits that increase the limits. This could be significant, so it is imperative that a personal injury lawyer review your coverages to ensure that you are actually getting what you paid for by premium.

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      What forms of compensation are available from the person who caused the accident and what is the process?

      The person who caused the accident is responsible for paying compensation for all losses and expenses that you have experienced. These expenses and losses may include pain and suffering, loss of income, lost working years, medical and rehabilitation costs, attendant care, housekeeping, medical device and medication expenses, as well as family member compensation for loss of care and their expenses associated with your accident. This claim is referred to as a tort claim, whereby your personal injury lawyer will file a lawsuit in Court asking for damages. Your tort claim will proceed with a timetable which will include documentary discovery and then an examination for discovery where you will be asked a series of questions from the lawyer for the at fault insurance company. Then you will normally have a Mediation where you will likely be able to settle your claims with the insurance company. It is extremely important that your personal injury lawyer has properly identified and quantified your various claims for damages. Normally, this will be done with expert evidence from doctors, engineers, accountants, and economists, who write reports to set out your claims and document the extent of the injuries. Most cases will settle at Mediation, but if it cannot, then your case moves on to pre-trial and trial. It is important to make sure that you retain lawyers like us who have trial experience so that your claims for damages can be maximized if the case goes to trial. The goal is to settle outside of trial, but sometimes matters do have to be tried, so it is very important that your lawyer has trial experience like we do.

      What should I do if the insurance company refuses to pay accident benefits?

      This will happen inevitably, as insurance companies do not want to pay claims. They only pay when they have to or are forced to. When they refuse to pay accident benefits, you will need to have a personal injury lawyer file an arbitration to resolve your dispute at the Licence Appeal Tribunal, where a government arbitrator will decide if the benefit should be paid. The arbitrations can be like trials and are adversarial. You have to make sure that you have evidence to support your position that the benefit is payable. Likely, you will need to engage expert evidence to do so. You will also need an experienced lawyer who has arbitration experience like we do to help you through the system and get your matter resolved.

      What if my injuries prevent me from working?

      You can claim loss of income in a lawsuit against the at fault party and receive income replacement benefits from your own insurance company right after the accident, which will pay 70% of your loss of income up to a maximum of $400.00 per week. You may have optional benefits that will increase this weekly income benefit to $1,000.00. You may also be eligible for short-term and/or long-term disability benefits, as well as a disability pension through the Canada Pension Plan, or Ontario Disability Support Plan. At our firm, we understand that an injury will affect your ability to work and pay your bills. We will thoroughly determine what income continuation you may be entitled to so that financial stressors can be taken away so that you can turn your mind to recovering from your accident.

      "The law isn't justice. It's a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be." ~Raymond Chandler

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      Himelfarb Proszanski is a leading law firm with full service personal injury lawyers. We have been recognized by Best Lawyers and have the highest rating, AV Preeminent, from Martindale-Hubbell.  We provide a combined century of trial experience which has led to the successful settlement of over 10,000 cases with combined settlement value in excess of 3/4 billion dollars. And finally, we’re the only firm to offer you the HIMPRO Advantage™.

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