Michael Ford (post until Oct. 31/19)
Legal Suppliers, Personal Injury

BICO legal cost protection helps secure $800,000 for injured man

An Ontario court has awarded $800,000 in damages — 25 times more than the defendant initially offered — to a 45-year-old injured man after his lawyer obtained BICO legal cost protection and levelled the playing field between the plaintiff and the defendant's insurance company, says BridgePoint Indemnity Company chairman and CEO John Rossos.

“This case gives an excellent example of how a lawyer artfully used legal cost protection, or what is otherwise considered 'new technology' in a way that created a massive shift in the fortunes of his client,” he tells AdvocateDaily.com

Lawyer Roman Baber represented the plaintiff, who was initially injured in a car crash. He was the driver of a vehicle that collided head-on with the defendant vehicle after the defendant vehicle made a left turn in front of him. The man suffered soft tissue injuries to his neck and back, headaches and a post-concussion syndrome causing dizziness and vertigo. Four months after the accident, the man suffered from vertigo and fell down a set of stairs, fracturing his heel and left him in severe pain and with mobility issues.

The man, who has a wife and two children, later brought an action to seek recovery for the injuries he suffered.

BICO was asked prior to trial to provide an indemnity for both adverse costs and disbursements.

In January, the man won $800,000 in damages after a three-week jury trial.

Baber, lead counsel with Taylor, Baber and Associates, says the case came down to whether the concussion from the car crash caused the man’s fall down the stairs, which left him unable to continue working at the same job he did prior to the fall.

Baber says he would not have taken the case to trial without first securing legal cost protection from BICO.

“But for our ability to continue to trial and prove our case to a jury of his peers, we would not have been able to incur the risk and resolve for an amount not anywhere near where the damages were assessed by the insurer,” he says.

“Of significant importance is that the plaintiff was an able worker and the injury made any prospect of physical labour virtually impossible down the road, resulting in considerable loss of future income capacity.”

Baber says the jury accepted that the man is going to be stationary for the rest of his life and awarded him $600,000 for the loss of future income capacity.

Baber says BICO’s legal cost protection changes the bargaining power of the plaintiff in such matters.

“Accident victims, especially those who are not impecunious, have very little appetite for risk,” he says. “Many plaintiffs forego enforcing their legal rights because of the considerable exposure to costs. In that sense, legal cost protection levels the playing field. As well, strategically, even without going to trial, a defendant insurer may be more amenable to settlement and will pay more to avoid trial risk if they believe that the prospect of going to trial is greater. The prospect of a better outcome is certainly greater if they know that the plaintiff’s lawyer has taken the risk for the client out of the equation.

“Often, even the prospect of going to trial yields a much better result.”

Without BICO’s legal cost protection, Baber says he would have been exposing his client to a cost award that may have put the man’s house at risk. 

“Legal cost protection is particularly important for cases where you have a potentially large variance in the prospective results,” he says. 

Baber says he would recommend this type of indemnity protection if there is a risk to the client that the matter may go to trial. Further, he says the availability of such funding is more important than ever before in Ontario.

“Various legislative changes in Ontario over the last six or seven years has made recovery for accident victims significantly tougher,” he says. 

“The pendulum has swung in favour of the insurers and I’m saddened that many accident victims are unable to access not only damages but monies for medical rehabilitation required to improve their condition. Lawyers acting for accident victims are looking for any available tool to improve what these days seems to be a one-sided playing field.”

Baber says it’s widely known that very few cases go to trial and therefore general settlement value, in his view, is artificially low because insurance companies don’t perceive the risk of trial in view of how few cases are actually tried and heard on their merits.

“Legal cost protection enables lawyers to take many more cases to trial and get the results their clients deserve — something I am of the view that is much overdue,” he says. 

Rossos says BICO is proud to have worked on this matter in order to achieve the positive result and most importantly, is very pleased for the client. 

He highlights how lawyers are increasingly advising all clients of the existence of legal cost protection and purchasing protection firm-wide for all clients to address the uncertainty of litigation. 

“When I discussed Roman’s success with a lawyer at one of the largest Toronto law firms, he told me that he purchases a lower base amount of protection for all files to enable his clients to obtain peace of mind and focus on their recovery," he says. "He informed me that his professional obligations require him to disclose the risk of litigation to his client and offer a solution that best meets their needs. He was also quick to add that he has not yet had a result like Roman's but was hopeful that he would soon have similar success.

“This case shows, tangibly, how when we work collaboratively with counsel good things happen in terms of the outcome that clients benefit from. We offer law firms a very flexible solution for their clients, giving them the opportunity to purchase a smaller base amount up front with very little cost and the flexibility to add more protection later without further underwriting. This allows lawyers like Roman to manage his clients’ claims much more efficiently while ensuring they are not forced to settle for cents on the dollar."

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