Toronto Privacy Lawyer, Gil Zvulony was a panelist at the Telematics Canada Conference 2014. Read more
Canadian Privacy Lawyer, Gil Zvulony, recently discussed potential privacy concerns regarding the use of tracking devices used by some auto insurance companies. The devices involved are called “Telematic” devices that can measure such things as a car’s location and speed. Such devices, raise several questions such as:
- How is the consumer’s consent obtained?
- Is the consumer’s consent fully informed?
- Is consent obtained for other drivers who are not customers of the insurance company?
- Who owns the data collected?
- Can a consumer access the data?
- Can a consumer share the data?
- Can a consumer modify the data?
- Is the data portable? I.e. Can the data be shared with a new insurance company?
- What security measures are in place to protect the data?
- Can the data be accessed by police?
- Is the data discoverable in civil proceedings?
by our Toronto Personal Injury Lawyer
All drivers in Ontario must be insured and all insurance policies provide for Accident Benefits, which are meant to provide car accident victims with quick access to certain necessities, such as medical treatment and income replacement for unlucky individuals who cannot return to work following a car accident. These benefits are generally available to all car accident victims, regardless of who caused the car accident, hence the term “no fault”; it does not matter whose fault it is, nearly all car accident victims can make a claim for these benefits.
In a perfect world, the Accident Benefits claim system was meant to be user friendly, and accessible to the public without the need for legal representatives to serve as go-betweens for victims and insurance companies. However, if you take a look at the Statutory Accident Benefits Schedule, you’ll see a big gap between the vision and the reality; the claims system can be complicated and a qualified legal professional – a lawyer or paralegal – can serve as a trusted guide to guide you through the claims process.
This article will set out the various types of benefits included in a Standard Automobile Insurance policy, as well as the policy limits – how much money is available – under each heading. You should know that auto insurance policy holders can change their policies by making it easier to access certain benefits or increasing the amount of benefits. They may elect to pay a higher monthly premium to bump-up the policy limits or amount of weekly benefits payable. If a heading has a asterix (“*”) next to it, you’ll know that policy holders can enhance or change these benefits. What we will discuss here is the standard baseline benefits available to all eligible claimants.
Income Replacement*, Non-Earner, and Caregiver* Benefits
A person who cannot return to work as a result of a car accident may be eligible for income replacement benefits (IRBS), which pay accident victims 70% of their gross income up to a maximum of $400.00 per week. Generally speaking, this benefit is only available to people who were employed on the date of the accident or were working at least 6 of the 12 months immediately preceding the accident. This benefit is payable so long as an accident victim is unable to return to their own job. However, two years after the accident, the benefit will only be payable if a person is unable to return to any job. Otherwise, the benefit is payable indefinitely, with adjustments made as claimants reach age 65.
A person who was not employed at the time of the accident, but who nonetheless suffers a complete inability to carry on a normal life as a result of the car accident may be entitled to a non-earner benefit of $185.00/week. This benefit is not payable until six months from the date of the car accident. So long as a claimant qualifies for this benefit, it remains payable, with certain adjustments made as claimants reach age 65.
Finally, primary caregivers unable to care for their children may be eligible for caregiver benefits, which will reimburse claimants for expenses they incur hiring others to care for their dependents up to a maximum of $250.00/week for the first child and an additional $50.00 for each subsequent child. Under a standard auto insurance policy, this benefit is only available to people who have suffered a catastrophic impairment. This benefit is payable for two years following the auto accident, following which time, it is only payable if the caregiver suffers a complete inability to carry on a normal life, in which case it may be payable for the duration of an accident victim’s entire life.
Lost Educational Expenses
An insurance company may pay up to $15,000.00 to reimburse car accident victims for tuition, books, equipment and room and board if they have incurred these expenses as part of an education program that they can no longer participate in as a result of the car accident.
Benefits for Damage to Personal Property
Standard policies include provisions that reimburse accident victims for reasonable expenses incurred to repair or replace personal items such as clothing, dentures, hearing aids, prescription eye wear, and any other items a person was wearing that were damaged in an accident.
Attendant Care* and Housekeeping* Benefits
Car accident victims unable to carry out personal care activities, such as grooming, bathing, meal preparation, etc., may apply to have the car insurance company pay for expenses incurred to hire an attendant to assist accident victims with these activities. In order to qualify for this benefit, car accident victims must (1) suffer more than a mere “Minor Injury”; and (2) have an occupational therapist assess a victim’s attendant care needs and submit an assessment and accompanying form to the auto insurance company.
Under standard automobile insurance policies, car accident victims who have not been catastrophically impaired may be entitled to up to two years worth of attendant care benefits of $3,000.00 a month and not more than $36,000.00 in total. Catastrophically impaired claimants may access up to $6,000.00 a month for incurred expenses relating to attendant care up to a maximum of $1million for the duration of their life.
Housekeeping benefits provide reimbursement for expenses incurred for housekeeping services rendered to car accident victims who are unable to complete their pre-accident housekeeping duties. Under standard policies these benefits are only available to car accident victims who have suffered a catastrophic impairment. In that case, the auto insurer may be obligated to pay up to $100.00/week for incurred housekeeping expenses.
Medical and Rehabilitation* Benefits
Car accident victims are entitled to payment of all reasonable and necessary medical and rehabilitation expenses not covered by a private health plan or OHIP. This may include physiotherapy, massage, chiropractic, or psychiatric treatment; a gym membership and sessions with a personal trainer; occupational or vocational therapy; assistive devices such as long handed brooms, shower stools or adjustable beds; and generally any other good, service or treatment that may be reasonable and necessary to reduce or eliminate the effects of an accident related disability or to facilitate a car accident victim’s reintegration into his or her family, society and the labour market.
The Ontario government has determined “most persons injured in car accidents in Ontario sustain minor injuries” and have therefore passed the Minor Injury Guideline (pdf), which limits medical rehabilitation benefits to $3,500.00 for all victims who have sustained a “Minor Injury”, as defined in the Guideline.
Car accident victims that sustain more than a Minor Injury, or are able to convince the insurance company that they are not bound by the Minor Injury Guideline, are eligible to receive up to $50,000.00 in medical and rehabilitation benefits. Catastrophically impaired accident victims may have access to $1 million in medical rehabilitation benefits over the course of their lifetime.
Death and Funeral Expenses
Sadly, car accidents sometimes cause fatalities. When they do, eligible spouses may be entitled to a lump sum payment of $25,000.00. Dependents of the deceased may be eligible to receive lump sum payments of $10,000.00 each. The auto insurer may also contribute up to $6,000.00 towards a funeral.
Insurers may repay reasonable and necessary expenses incurred by (immediate) family members, including grandparents and grandchildren, to visit the accident victim. Generally, this benefit is only payable for the first 104 weeks following an accident, unless the victim has been catastrophically impaired.
Sounds Simple, right?…
In this article, an attempt was made to make Accident Benefits as simple as possible to understand. In reality, the claims process is not so simple. Accident victims must first fill out initial applications and make elections with respect to what weekly benefits they may claim, if any, often without knowing much about the process.
Next, submitting claims and receiving repayment for incurred expenses is complicated and takes time, and often, a claimant has already paid money out of pocket and is waiting weeks if not months (or years!) for the insurer to pay them back. More complicated still are the insurers rules regarding proof that expenses are incurred; in the case of housekeeping, caregiving and attendant care, claimants must first be eligible for the benefit (i.e. have purchased enhanced benefits or convinced the insurer that they have more than a Minor Injury), and then have to meet a whole other set of qualifying rules too complex to discuss here.
Similarly, claims for medical and rehabilitation expenses must be made on approved forms prior to receiving any goods, services or treatment. Once submitted, insurers have a right to scrutinize the applications and send claimants for assessments to determine whether the requested goods or services are reasonable and necessary. Then, once claims are denied, car accident victims must navigate the dispute resolution process, which involves mediation and then arbitration or lawsuits, if necessary.
Put simply, there’s rarely anything simple about the claims process and an experienced car accident lawyer can help explain the process to you and provide valuable assistance and advocacy in the event that the insurance company denies any of your claims.
Our Toronto Personal Injury Lawyers give free consultations to anyone in Ontario. Simply Ask your question by completing the form and an experienced Toronto personal injury lawyer will call you to answer your question.
Technically speaking, “no-fault” automobile insurance describes a system of insurance where an accident victim is injured or their car is damaged, and they make a claim to their own insurance company; regardless of who caused the accident. In Ontario, accident victims can make no-fault claims (also called “first party” claims) for property damage and accident benefits.[/caption]
Entitlement to Benefits Despite Causing the Accident
As an example, imagine a driver fails to stop at a stop sign, drives into an intersection, and gets into an accident with another vehicle causing damage to both vehicles and personal injuries to himself and the other driver. Assuming he has collision insurance, our driver – whom we’ll call Dennis – can make a property damage claim to his own auto insurance company to repair his vehicle. He can also make a claim to his insurer for accident benefits, which includes, among other things, payment for medical and rehabilitation expenses and income loss. Dennis is entitled to make these claims despite the fact that he caused the accident.
Being at Fault For An Accident Can Raise Your Insurance Premiums
No-fault insurance permits Dennis to make a claim for benefits, but Dennis is not completely off the hook, as insurance companies always determine who is at fault for an accident, whether partially or completely. After each party reports the accident to their insurance companies, their insurers will investigate the accident and make a determination as to who was at fault or responsible for the accident using the “fault determination rules”, which set out common accident scenarios and describe how to attribute fault in each scenario. Unless he has accident forgiveness as part of his policy, Dennis’ insurance premiums will likely go up when it is time to renew his policy. Next time Dennis is shopping for auto insurance, he’ll certainly remember to ask how an accident may affect his premiums (and you should too).
In addition to his premiums going up, Dennis is now exposed to a possible negligence claim for pain and suffering, loss of income and other damages brought by the driver he hit. Assuming he was not in breach of his policy and cooperates with his insurance company, the insurer will hire and pay for lawyers to defend him in this action, and the insurance company will ultimately pay the claim out, subject to the liability limits on Dennis’ policy.
In this lawsuit, the fault determination rules are irrelevant. The other driver’s lawyer will have to prove anew that Dennis was a negligent driver. Of course, under these circumstances, there is little doubt the accident was his fault. However, the other driver may have contributed to her own misfortune; she may have not been wearing a seat belt or had her signal on. If so, this is called “contributory negligence”. You can be sure that Dennis’s lawyers will do their utmost to find instances of contributory negligence, which would reduce the amount of money Dennis’ insurance company would have to pay the other driver.
In sum, no-fault insurance means that regardless of fault, an accident victim – even a person who causes an accident – may have access to certain benefits from their own insurance company. The issue of fault remains relevant both with respect to a person’s insurance premiums, and the rights of others to sue an at-fault driver for damages.
While insurance companies will often tell you that they are there for you when you need them most, the plain truth is that if you are involved in a car accident and sue the at-fault driver, an insurance company will nearly always step in to defend the claim. In these circumstances, the notionally friendly insurance company becomes your adversary. Put simply, the insurance company is not always your friend. This is a fact you should always bear in mind when sharing information and pictures with your “friends” on Facebook, Twitter and other social media sites.
The case of Kourtesis v. Joris serves as a good example of how insurance companies may “creep” on a plaintiff’s Facebook profile to troll for information to use against you at trial.
Fotini Kourtesis, was one of the plaintiffs in Kourtesis. She was involved in a car accident as an 18 year old high school student. She was hit from behind and there was no question that the defendant driver was at fault. The main issue at trial was whether Fotini sustained sufficient injuries to warrant an award for damages for pain and suffering and loss of enjoyment of life.
As a result of the accident, Fotini claimed to have suffered injuries to her neck and shoulders as well as memory and concentration problems. As a result of these injuries, Fotini said, her social life had been ruined.
Facebook Photos Used in Court
In the middle of the trial, the defendant’s lawyers gained access to pictures of Fotini that she posted on Facebook. Possibly, the lawyer gained access through a Facebook friend of Fotini’s. The Defendant’s lawyers then got an order from the Court allowing them access to more pictures on Fotini’s Facebook account. The pictures showed, among other things, Fotini partying on St. Patrick’s day three months before the trial.
Fotini was given an opportunity to address the photos at trial and she provided an animated and detailed account of the times and places of the events depicted. The Court found that the pictures contradicted her allegations regarding her social life being ruined, and that her testimony with respect to the pictures completely undermined her claim to have suffered memory and concentration problems. Her claim for damages for pain and suffering was dismissed. In sum, the pictures and her explanations of those pictures sunk her case.
Insurance Company Access to Facebook Photos Not Automatic
Following the decision in Fotini’s case, insurance companies’ lawyers’ requests to access accident victims’ Facebook profiles have been met with mixed success. On the one hand, the Court will not likely ever permit an insurance company full access to a plaintiff’s Facebook profile as much of the information is private and not relevant to the law suit. On the other hand, Courts are willing to conclude that there are likely relevant documents or pictures on a private Facebook account based on the nature of the services Facebook provides.
It seems that a plaintiff in a lawsuit has an obligation to disclose and produce relevant photos and documents on a Facebook account. Photos of a plaintiff sitting next to a pool, for instance, are irrelevant because they don’t prove anything one way or another. On the other hand, photos of an accident victim at the top of Mount Everest or finishing a marathon would certainly be relevant.
What does all this mean to accident victims and what lessons are there to be learned?
First and foremost, if you are the type of person who keeps a public profile, posts updates for the world to see and tends to live tweet every moment of your life, there is very little to learn; the insurance companies will have access to your public profiles and will search for anything useful to reduce the damages on your case. So, the first lesson is, if you are going to use social media, to keep all of your social network profiles private and viewable only to your “friends” – and not “friends of friends”, which is what caused Fotini all that trouble.
People involved in personal injury lawsuits should certainly be aware that what they post online may end up as evidence in court and, therefore, should be careful not to make statements that are inconsistent with the photos they post online; don’t say you can’t walk for long periods of time and then post pictures of yourself finishing the most recent Tough Mudder or Iron Man competition.
The easiest way to make sure social media doesn’t complicate your case is to unplug from Facebook and other social media sites until your case is over.
Ultimately, the best way to protect your interests as a plaintiff in a personal injury lawsuit is to be truthful about your limitations and consistent in your actions.
Our Toronto Personal Injury Lawyer gives free consultations to anyone in Ontario. Simply Ask your question by completing the form below and our Toronto personal injury lawyer will call you to answer your question.
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Toronto Insurance Dispute Lawyer
Insurance polices are purchased for peace of mind. If you have purchased an insurance policy, paid the premiums and experienced a loss (i.e. your car is stolen or a fire at your home), an insurance company should indemnify you for your loss (assuming the loss is within the ambit of what is covered in the policy).
This sounds simple and pretty straightforward, and while many insurance claims are paid without incident, at times, individuals find themselves in a situation where their insurance company is denying their claim or unduly delaying payment. Once a claim is denied, you essentially have three options. Specifically, you can: 1) walk away; 2) settle for whatever the insurance company has offered, even if it is considerably less than what you are entitled to; or 3) challenge the decision and commence legal action. Few individuals have the financial resources to challenge an insurance company’s decision to deny a claim, irrespective of the merits of such a decision. The insurance company knows this. When assessing the validity of your claim an insurance company has a duty of good faith and fair dealing. An insurance company has a right to investigate your claim, but they must do so fairly and diligently. Failure to do so and subsequently denying a claim without sufficient evidence may amount to bad faith and a breach of their obligation of good faith and fair dealing. At the same time, some claims can legitimately be denied and their denial will not amount to bad faith. For example, if there is evidence that a material misrepresentation was made at the time you applied for insurance or if there is evidence to support an allegation of arson or fraud.
Recently, the amounts that courts have awarded for punitive damages against insurance companies who have acted in bad faith have increased considerably. These recent awards reflect the growing trend to hold insurance companies accountable for their bad faith conduct in refusing to pay out legitimate claims, where there is no evidence of any wrongdoing. At the same time, if, at the end of the day there is insufficient evidence to sustain the insurance companies’ denial of a claim, but the insurance company was reasonable in its investigation of the claim and the rational behind its decision to deny the claim, they should not be exposed to a claim for punitive damages.
In Whiten v. Pilot Insurance Co.  S.C.J. No. 19, the Supreme Court of Canada reaffirmed the trial jury’s award of $1,000,000 for punitive damages against the insurance company. The facts are fairly straight forward. In January, 1994 a fire totally destroyed the Whiten home and its contents. The insurance company denied the claim and alleged that the Whitens were guilty of arson. After a lengthy trial, this allegation was proven to be entirely without merit. The local fire chief, the insurance companies own expert investigator, and the insurance companies own initial investigator all said there was no evidence of arson. Despite this, the insurance company refused to pay and denied the claim. The jury awarded the Whitens compensatory damages and punitive damages in the amount of $1,000.000.00. Punitive damages are imposed only if there has been “highhanded, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour”. The Court of Appeal reduced the amount of punitive damages to $100,000. The Supreme Court of Canada reaffirmed the jury award for punitive damages in the amount of $1,000.000.
In its decision, the Supreme Court stated “the denial of the claim was designed to force her to make an unfair settlement for less than what she was entitled to. The conduct was planned and deliberate and continued for over two years, while the financial situation of the appellant grew increasingly desperate. The jury evidently believed that the respondent knew from the outset that its arson defence was contrived and unsustainable”. The Court went on to further comment on the message the jury was sending to the insurance company with such a large award, “the jury decided a powerful message of denunciation, retribution and deterrence had to be sent to the respondent and they sent it. The obligation of good faith dealings means that the appellant’s peace of mind should have been the respondent’s objective and her vulnerability ought not to have been aggravated as a negotiating tactic”.
In awarding $1,000,000 in punitive damages, the jury in the Whiten case sent a powerful message to the insurance company. Namely, if you choose to deny a legitimate claim without any evidence to support the denial and engage in bad faith conduct you risk punitive damages being awarded against you. The insurance industry should take note.
Lawyers in Toronto, Canada
Zvulony & Co. P.C., Toronto, Ontario, Canada