About half of all motorcycle accidents in Canada are the result of the other driver in a passenger vehicle. Additionally, injuries to those on motorcycles tend to cost 10 times more money and are six times more severe than those in larger vehicles. If you have been injured, depending on the severity of your injuries, you may be able to sue the other driver directly. The following will outline that process and how it works. We will also go over what you should do after being involved in a serious motorcycle accident.
Understanding Ontario’s No-Fault Insurance
Every driver on the road is required to carry auto insurance. Ontario’s no-fault system covers expenses related to your injuries regardless of whether you or the other driver caused the accident. However, in cases where there has been a serious injury or death, a driver can file a lawsuit against another provided that his or her injuries are severe enough. Additionally, those who lost loved ones in serious traffic accidents can also file a wrongful death lawsuit against the at-fault driver.
Understanding When an Injured Motorist can Sue
Under Ontario law, a motorcyclist involved in a traffic accident can sue the other driver provided that the other driver is at fault and the motorcyclist has suffered some permanent impairment, disfigurement, or the loss of a bodily organ. In addition to whatever your insurance covers, you may be able recover damages for:
- Pain and suffering,
- Lost wages and earning capacity,
- Health costs related to the accident, and
- Housekeeping and home maintenance.
In wrongful death claims and serious injury claims, your surviving spouse and children may be able to recover damages related to their emotional grief, loss of economic support, loss of moral support and guidance, loss of consortium, and funeral costs.
In Ontario, there is a strict auto accident timeline that must be followed. Failure to follow it may result in the loss of your ability to pursue a claim.
- Within seven days you must have informed your insurance company that an accident has occurred.
- Within 30 days an accident benefit application must be filed.
- Within 120 days you must inform the at-fault driver of your intent to sue.
- Within two years you must file the lawsuit.
Understanding Fault in Traffic Accidents
Even when fault is not considered as part of the payment of benefits through insurance, insurance companies will always investigate the accident and determine which driver was at fault and to what degree. This is not an all-or-nothing evaluation. Two drivers can each be assigned some of the liability if both were either violating a traffic law or otherwise contributed to the accident. In these cases, the insurance company will charge the at-fault driver a higher monthly premium. These laws can be found in The Insurance Act.
Understanding How Insurance Works in Traffic Accidents
Ontario has one of the most convoluted systems of auto insurance the world has ever seen. Essentially, when a car accident occurs you file one claim with your insurance company and a second claim seeking damages for repairs to your vehicle. Additionally, if you intend to sue the at-fault driver for damages related to a permanent impairment that resulted from the injury, then you are engaged in a third cause of action.
The claim on your insurance policy is an accident claim case and it pits you against your insurance company in multiple ways. Suffice it to say, your insurance policy covers you for certain injuries up to a certain amount. This, of course, depends on how much insurance you have purchased.
During the process of filing a claim on your own insurance, you make a number of claims for damages that you believe should be awarded to you. The insurance company can rebuff these claims, say your injuries are not as bad as you say, and otherwise frustrate any attempt to receive compensation.
In addition to the frustration there, you are also subject to deductibles on your policy or spending caps for rehabilitation from your injuries and benefits related to your loss of work. Even accident victims who are forced to sue their insurers to recover the money they are rightly owed under the terms of their contract are subject to deductibles in their jury awards.
How did this happen? Well, insurance companies were able to write the laws and wrote them in such a way that they enjoyed the maximum benefit.
For instance, if your lawyer mentions the fact that any award for pain and suffering is subject to a $38,000 reduction, the judge will declare a mistrial and slap a very large fine on your lawyer. This, of course, is a special law that only pertains to insurance companies.
Why do I Have to Sue My Own Insurance Company?
Regardless of who is at fault in a car accident, the first thing that you have to do is file a claim with your insurance company on your insurance policy. These include medical expenses in excess of what would be covered OHIP, attendant care benefits, home maintenance benefits, income replacement benefits, death benefits, and more. Additionally, rehabilitation benefits may differ depending on whether or not the insurance company decides that your injuries are minor or major. Your insurance company may decide that you are not entitled to benefits to which you claim you are entitled. In this case, your own personal injury lawyer would be required to file a lawsuit against your insurance company to force them to pay the benefits that you claim you are owed.
Insurance companies are for-profit businesses. The more money they pay out, the lower their profits. At the same time, they are expected to act in their policyholder’s best interests. Ontario does not resolve this conflict of interest in a way that benefits the accident victim. Most of Ontario’s laws give insurance companies broad powers to act as judge and jury over their own policy claims. Those who feel like they are being cheated have no other recourse than to hire a personal injury lawyer to litigate the claim.
The Other Driver Did Not Have Insurance
Another common reason that accident victims end up in litigation with their own insurance companies is when the other driver did not have insurance. You may sue this driver directly, but if the driver cannot afford to pay for your damages through his or her insurance coverage, then it is unlikely that the driver is going to have any assets worth pursuing. In this case, you have to file your claim against your own insurance policy with your insurance company acting as the adversarial party against you.
What to do After a Motorcycle Accident
Your first order of business is to call the authorities. The police will come to the scene, make sure everyone is okay, talk to witnesses, and call ambulances if necessary.
Depending on the severity of your injury, you want to get as much information from the scene as possible. This includes taking pictures of your bike, the other vehicle, and witnesses. This is not always possible, however. Even if your claim does not end up in litigation or your injuries are not that bad, you do not want an accident on your record if you can avoid it. Preserving the scene to the extent possible severely limits what an at-fault driver can say if they try to blame you for the accident.
After the accident, you should:
- Go to the hospital: Even if you think you are fine, you might not be. Concussion symptoms may not be obvious until several hours or even days after the accident. During this period, the risk to you is great. A second concussion during the period when the first has not healed produces inordinate brain swelling which can be fatal. If a doctor says that you have experienced a concussion, stay off your bike until it is fully healed.
- Report the accident to your insurance company within seven days: Unless you are still recovering from serious medical injuries, you have to report the accident within seven days. If you do not report the incident within seven days and are deemed able to have done so, your insurance company may deny your claim. This is true regardless of whether or not the accident was your fault. Even if you had 0% fault in an accident, you must report it within seven days (provided you are able).
- Call a personal injury lawyer: Depending on the severity of your injuries, how much time you will be missing from work, and whether or not there will be a sustained period of rehabilitation, a personal injury lawyer can take much of the pressure of dealing with the insurance company off your shoulders. This is particularly true in cases where your insurance company seems unwilling to honour your claim or is otherwise giving you a hard time.
- Fill out your OCF claims reports: If you think that because you have been in an auto accident, money is going to suddenly rain from the sky, you are more than a little bit wrong. Insurance companies will fight tooth and nail to avoid honouring claims against their policies. The first part of the process for you is to request these claims (within 30 days) of the accident. If you have a personal injury lawyer, they can help you through this process.
How an Ontario Personal Injury Lawyer can Help After a Motorcycle Accident
Due to Ontario’s convoluted laws, most individuals who have just been in traffic accidents are not exactly sure what they are supposed to do. In these cases, there is a procedure to follow and even when it is followed precisely, it can result in frustrating responses. Your insurance company may not seem to want to honour your claim for rehabilitation because they have determined that your injury does not qualify as “serious.” It certainly seems serious to you. You cannot go back to work, you are in considerable pain, and your doctors are telling you that there is a timeline for your recovery.
In these situations, your personal injury lawyer will negotiate with the insurance company, follow up with your doctors, and ensure that all the proof you need will leverage the insurance company into paying out a fair settlement.
In cases in which you have suffered a permanent impairment, a personal injury lawyer can also sue the at-fault driver and attempt to recover damages related to your injuries. These damages are in excess of any money that you receive from your insurance company.
Forms Related to Claims Benefits
After you have notified your insurance company of the accident, you will need to fill out a considerable amount of paperwork related to your injuries. These include:
- OCF-2: For income replacement benefits. If you cannot work for a period of time, your insurance will reimburse you a specific amount weekly for your injuries.
- OCF-3: For disability benefits. Here you list what your injuries are, how they impact your life, and what your timeline for recovery is.
- OCF-5: Is a consent to release your medical records to the insurance company. Tread lightly here because the insurance company can claim that your injuries were the result of a prior accident and not the current accident on which you’re filing the claim.
- OCF-6: For out-of-pocket expenses. Be sure to keep any receipts related to your expenditures.
- OCF-10: Income replacement for dependents.
- OCF-18: Benefits related to physical therapy and rehabilitation.
- OCF-19: This form is to apply for catastrophic injury status.
Preszler Law Firm can Help You After a Motorcycle Accident
It is no secret that those who ride motorcycles are at increased risk of becoming severely injured. In these cases, having a skilled personal injury lawyer manage your claim reduces stress for you and your family and ensures that the insurance company does not try to use the confusing claims system against you.
For many policyholders, making claims against their insurance policy is unnecessarily difficult and stressful. Insurance companies rely on their superior position of knowledge and the many laws that have been written to favor them to settle claims for less than they are actually worth.
Preszler Law Firm acts as your advocate in these cases, securing the proper evidence, ensuring all the proper forms have been completed, and getting you back on the road to recovery. Contact us today for a free consultation.