Personal Injury

Courtroom is a 'great leveller' between victims, insurers

In a series of radio interviews on Bell Media, Ottawa personal injury lawyers Howard Yegendorf and Najma Rashid share their expertise on how accident victims with occupiers liability, motor vehicle and long-term disability claims can best level the playing field when battling an insurance company.

Occupiers liability, explains Yegendorf, a founding partner with Howard Yegendorf & Associates LLP, “is an act in Ontario that essentially means that if you’re an owner of property, you have obligations to people coming onto that property.”

Yegendorf points to one example of a social host liability case, where his client attended a high school graduation party, and ended up leaving with a person who was driving while impaired. The driver lost control of the car and the client was catastrophically injured.

In addition to suing the driver and owner of vehicle, Yegendorf and his client also sued the owners of the property under the Occupiers Liability Act. They contended that the owners were responsible for the actions on their property, given that many of the partygoers were underage and had only class G1 or G2 drivers licenses.

While the insurer for the homeowner brought a motion for summary judgment on the basis that a previous Supreme Court of Canada decision rejected the argument of social host responsibility, Yegendorf and his client won the motion and the case was subsequently settled with the insurer for the homeowner.

Occupiers liability is also an issue that affects owners or operators of commercial premises, says Rashid, a partner with the firm.

In another case, she says, a woman fell down the basement stairs in a restaurant and was seriously injured. She ended up suing the owners of the building and the tenant restaurant, as well as the City of Ottawa for negligent inspection of the premises, and the architect of the basement staircase plans.

Over the four-year litigation, the firm hired medical experts, as well as an accountant, a vocational assessor, and structural engineering experts to analyze the staircase, in order to build the case in negligence against the parties.

The victim was ultimately left with money to take care of her for the rest of her life, including her loss of income needs, long-term healthcare needs and for her family members.

Yegendorf explains that his firm works on a contingency basis, funding litigation on behalf of clients, with no payment until, or unless, the matter is resolved.

In a motor vehicle accident situation, Yegendorf and Rashid tell listeners that there are significant rights and recent legislative changes that victims and their families need to be aware of.

“In a motor vehicle accident, there are two streams of insurance that are available. One is called tort insurance, which applies to the individual that is responsible for the accident, and the other is accident benefits, or what we would commonly call no-fault benefits,” says Rashid.

It all comes down to the definition of catastrophic impairment, says Yegendorf — and in cases that involve a very significant benefit payment, the victim’s own insurance company is going to look at whether they meet the criteria or not.

Also, says Rashid, only victims with a "permanent and serious impairment" with injuries assessed at more than $30,000 can sue a responsible party.

“In cases where it’s not clear, the insurance company has a clear incentive to say this person is not catastrophically injured,” adds Yegendorf. Oftentimes, battling against that decision, he says, will involve medical, forensic accounting, and vocational experts who base their findings on known facts. Lawyers also turn to other experts who look at anecdotal evidence about what a person’s future looked like in their career, their loss of current and future income.

The landscape with respect to accident benefits has also recently changed, Rashid says in the interview, with funding cut from $50,000 for medical rehab and $72,000 for attendant care, to a combined limit of $65,000 for non-catastrophically injured victims. For catastrophic victims, funding has been slashed by 50 per cent, to a combined $1 million for medical rehab and attendant care.

Yegendorf and Rashid also discussed how long-term disability claims can prove tricky for those with a disability or illness that cannot be picked up on an X-Ray or CT scan — mental health claims or chronic fatigue syndrome, for example.

“The reality is, for individuals who are suffering from mental health issues, or chronic pain issues, the type of treatment that they need is not necessarily covered by OHIP. So a psychologist is privately funded, for example. Medication is privately funded. So if you do not have income replacement through your long-term disability insurer, you don’t have the money to pay for treatment. So, some people might get cut off, they’ll try and go back to work, and it becomes a vicious cycle, because their symptoms become 10 times worse,” says Rashid.

Ultimately, says Yegendorf, it comes down to having highly skilled lawyers on your side, with the expertise to present a compelling case, and level the playing field against the insurance companies.

“The courtroom is the great leveller,” he adds.

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