Personal Injury

Changes to auto insurance a good start: Hoffman

By Paul Russell, AdvocateDaily.com Contributor

The Ontario government’s plan to modernize and streamline the auto insurance industry is a good start, but more needs to be done, says Toronto personal injury lawyer Jennifer Hoffman.

“I’m cautiously optimistic about what may come up over the next few years, and the proposed changes are a step in the right direction,” says Hoffman, founder of Hoffman Law P.C.

According to a BNN Bloomberg story, the province is planning to introduce legislation to allow insurers to provide less expensive coverage if drivers agree to use “preferred providers for auto repair or health-care services.”

In addition, there will be pay-as-you-go insurance plans and higher monetary limits for cases handled through simplified court procedures, according to the story.

“I am very interested in changes to the simplified procedures,” Hoffman tells AdvocateDaily.com, praising the government for proposing to raise the cap that can be claimed under that system to $200,000 from the current limit of $100,000.

“Because of this relatively low cap, many lawyers are hesitant to commence an action using simplified procedures, since they don’t want to prejudice their client’s claim by capping it at $100,000,” she says.

“If the cap is increased to $200,000, or even $300,000, that’s going to take a high volume of cases out of the regular judicial system and put them into the simplified procedures stream, which will ease the backlog in the courts,” Hoffman says.

The story notes that the proposed changes would eliminate juries for trials in the simplified procedures stream, as well as limit the number of experts that can be called.

“Those changes will be good for plaintiffs, who can wait upwards of five years now for their case to be heard,” says Hoffman.

“There’s a real backlog in the regular stream right now, mostly because criminal and family law cases justifiably take priority over personal injury and civil litigation, so those cases keep getting pushed back.”

In the simplified procedures stream, everything is kept to a reasonable minimum, she explains. “You don’t have the same length of examinations for discovery or testimony, and much of the information is given by affidavit, so it’s not necessary to have an expert walk through every piece of evidence. Calling expensive experts to explain the evidence will be less critical with a judge-alone trial, versus trying to educate a jury on complex evidence.”

Hoffman says she’s pleased that the limit for catastrophic injuries is set to return to $2 million after the previous Liberal government lowered it to $1 million.

"After all, these are the people with the most severe injuries that could require life-long treatment or care."

She also likes the idea that people will have more options when they purchase insurance, “with the premiums increasing or decreasing based on the type of insurance that you customize for yourself.”

Hoffman says she’s disappointed that the province did not address the $37,983.33 premium that insurance companies withhold from any damages award given to compensate for pain and suffering and loss of enjoyment of life.

“The kicker here is that at trial, personal injury lawyers are not allowed to inform the jury about this almost $38,000 deductible,” she says. “If a jury determines that you should be compensated that amount for your injuries, you will be left with nothing, yet most people don’t know that.”

Hoffman notes the government failed to address the threshold or the level where someone has to prove they’ve suffered serious and permanent injuries that have substantially impacted their lives.

“Some insurance companies have taken very aggressive positions, suggesting that anyone able to return to work does not meet this threshold,” she says. “Maybe the injured person has dependents and has to fight back the pain so they can support their families. Some insurance companies have taken the position that they are back at work, and therefore, ineligible for any payments.”

Hoffman opposes the “Care, not Cash” proposal, which is to be grandfathered into all standard automobile insurance policies, preventing injured individuals from settling their accident benefits claim for a lump sum.

“I think that poses a very serious problem with respect to access to justice,” she says.

Hoffman wonders if insurance companies will inform policyholders that they can opt out of this coverage, which is expected to be the default position with insurance policies.

“Do we want to put our faith completely in these insurance companies to tell people they can opt out? Or that they'll deal fairly with injured individuals who are trying to access the very benefits they paid premiums for?” she asks. “I’m certainly going to be opting out of those options, and I would advise everybody that I know to do the same.”

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