Why It Can Be A Mistake To Settle Your Accident Claim Too Quickly
Car accidents aren't fun. If you're like most people, you'll have a natural inclination to put the whole thing behind you, including dealing with the insurance company, the adjusters, and the medical assessments.
However, a quick settlement of either your accident benefit claim or your bodily injury claim is rarely recommended. Here's why:
Not all Injuries Reveal Themselves Immediately
The extent of many injuries is often not known for months or even years. This was the case with Sophie, a 40-year-old woman who recovered from her initial accident-related neck and back injury rather quickly, but was still suffering from some knee pain when she came into our office.
At that time, no one could figure out what the pain was. One doctor told her it was a sprain or strain, while another suggested it was a rare birth defect that was completely unrelated to the accident. In the beginning, this looked like a case to settle quickly because it seemed like her accident-related injuries were largely gone.
Fortunately, a third doctor finally took the time to perform more significant diagnostic testing on Sophie's knee which revealed a damaged meniscus resulting from the accident that required surgery. We settled this case (both accident benefits and bodily injury claims) for three times the amount we would have settled if we had not waited for the appropriate diagnosis.
If you haven't returned to work after your injury, or if you're working less than you did before the accident, you should definitely not settle your claim unless you are certain you have reached maximum medical recovery (MMR). In Ontario, where pain and suffering damages are capped, often the 'loss of income' claim makes up the largest component of a settlement.
If you don't know your final medical prognosis, how will you calculate your loss of income? When will you go back to work? When will you be back full-time? All of those questions will be unresolved. You can be certain that the insurance company will not make assumptions about your return to work that will increase the amount of your settlement.
Because of this reality, the insurance adjuster is likely going to pressure you to settle your claim earlier than you would like. If this is the case, simply tell the adjuster that you cannot reasonably settle before you have reached maximum medical recovery unless the adjuster is willing and able to provide you with all of the insurance available under the policy.
Investigating Liability Takes Time
Sometimes it's clear that another person is at fault in an accident. Usually, there will not be a big issue of liability when you are a passenger. However, if you were a driver or a pedestrian, there may be a question of liability or contributory negligence. The fact is that it can take months for liability reports to be prepared.
When we represented Sue, a woman in her 50's who was involved in an accident with a pedestrian, a railway crossing and a transport truck, the police force responsible for the roadway took 18 months to complete its review and assessment of the accident site. None of the insurance companies involved were going to even start a settlement discussion until this report was available. So, even though the client's injuries had stabilized, no discussion was possible because that report was not complete.
Adjusters Love to Rush You
Many, many adjusters make time sensitive offers to settle accident benefit or bodily injury claims. After the time expires, the adjusters will 'close their file'. Be aware: As long as the limitation period has not expired, your rights cannot be affected by the adjuster closing their file.
Most motor vehicle accident bodily injury claims made on behalf of an adult must be started within two years of the date of the accident. This is the 'limitation period'. To preserve your right to pre-judgment interest, however, you are required to give a form of notice to the drivers against whom you may claim.
If it is a child who is injured, the limitation period extends until their 20th birthday. However, waiting until that time to consult a lawyer will make it difficult to collect evidence which may be ancient history by the time the matter goes to trial. In may also impact your chance to claim damages on behalf of family members who have been affected by the child's injuries.
There is strategy involved in negotiating as the limitation period gets closer. Your best bet to staying on the right side of the notice and limitation periods is to get legal advice.
You might be surprised to know that even if you are in negotiations with the insurance company, if the limitation period passes and you have not started a claim, you could be "statute barred", meaning your right to compensation is gone.
You should also know that many lawyers will not accept a case on the eve of the limitation period. Because lawyers generally get paid on a contingency fee basis (no win- no fees), the lawyers must investigate the claim to determine if it is winnable before they accept the case. Without time to conduct due diligence, many lawyers will regretfully decline your case.
By: Brenda Hollingsworth and Richard Auger
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Brenda Hollingsworth and Richard Auger are lawyers representing accident victims in Ontario, Canada. Their law firm is Auger Hollingsworth, located in Ottawa. They are the authors of "An Injured Victim's Guide to Fair Compensation" and "Crash Course: A Savvy Woman's Guide to Ontario Car Accident Claims" To get free copy of these books, contact www.personalinjuryottawa.ca ; email info@personalinjuryottawa.ca or call 613.233.4529.
