If you have been seriously and permanently injured in an automobile accident, you are entitled to damages for your pain and suffering. If your case goes to trial, the members of the jury are usually not told about two important things which can have a significant impact on whether you receive fair and just compensation. First, they are usually not told that there is a deductible which reduces the award of damages. Second, they are not told that the person who caused your injuries probably has insurance which pays for his or her lawyer as well as any judgment for damages.
In Ontario, insurance companies have successfully lobbied the Provincial Government to enact legislation which takes pain and suffering money away from seriously injured accident victims and gives it to insurance companies. This is known as a “deductible” on your pain and suffering.
For accidents that occur on August 1, 2015 or later, the deductible is $36,540. Unfortunately for accident victims, in most cases the jury is not told about this deductible. Therefore, if a jury believes that a fair and just award of damages for pain and suffering is $40,000 dollars, the accident victim receives only $3,460. If the jury thinks that a fair verdict is $35,000, the victim will receive nothing. Jurors usually have no idea their verdict will not be respected.
At the trial, the car accident victim’s lawyer is not permitted to tell the jury that the at-fault party’s case is being defended by an insurance company and it is the insurance company that will pay the damages; not the person who caused the accident. The jury does not know that the at-fault party’s lawyer is actually an insurance company lawyer.
Although the amount of damages is only supposed to be decided based on what is fair compensation for the accident victim, due to human factors, a juror may also be concerned about what would be fair for the person who caused the accident (mistakenly believing that the at-fault party has to pay personally).
For example, assume the at-fault defendant is a likable person of modest means, such as a student or single parent. If fair damages are $50,000, the jury may let emotions creep into the equation and worry about what impact a $50,000 judgment might have on the defendant. To lessen the blow to the defendant and not knowing the judgment will be paid by an insurance company, the jury may consider that $35,000 would be fair for both the plaintiff and the defendant. Under this circumstance, the innocent accident victim would have his or her entire pain and suffering award reduced to zero because of the deductible. The only winner would be the insurance company.
In the recent Ottawa personal injury case Corbett v. Odorico, 2016 ONSC 1964 (CanLII) the plaintiff Sarah Corbett was seriously injured in a car accident. The accident was 100% the fault of the defendant, Eva Odorico. Ms. Corbett’s injuries included a chronic pain syndrome along with symptoms of depression.
The jury was not told that Ms. Odorico’s lawyer was paid by her insurance company and that her lawyer regularly handles claims for insurance companies. The jury was not told that it would be an insurance company that would pay the amount of any judgment ordered against Ms. Odorico. Lastly, the jury was not told that there would be a $36,540 deductible applied to Ms. Corbett’s damages for pain and suffering.
Upon hearing all of the evidence in the case, the jury decided that a fair and just amount of compensation for Ms. Corbett’s pain and suffering was $33,000. After the jury made its decision, the judge applied the $36,540 deductible, which meant that Ms. Corbett’s award of damages for pain and suffering was reduced to $0.00.
It is important for accident victims to understand the insurance company friendly laws built into the system before they start their claim and take it to trial. Not only are these laws unfair, but in most cases they are also kept secret from the jury deciding your case.
If you believe laws such as the deductible are unfair, you are encouraged to contact your local MPP to express your views. Here is a list of MPP’s in Ontario: Ontario MPP’s.
If you have been seriously injured in a motor vehicle accident and wish to discuss your case with an experienced personal injury lawyer, contact Sean Giovannetti: