Entries Tagged 'Canada Personal Injury' ↓

[Note: The screening of Hot Coffee will no longer be on Feb 16th. A new date, likely March 30th, is being confirmed. Please check back soon for full details. Thank you.]

On Feb 16th, 2012, Hot Coffee, the documentary feature film Variety magazine calls an “Eye-opening indictment of the way big business spins the media”, will be screened for the first time in Vancouver at the Ridge Theatre.

The screening is sponsored by Cross Border Law, US Lawyers in Vancouver, with all proceeds from ticket sales going to the StreetoHome Foundation. Tickets are by donation with a suggested minimum of $5.

The film starts at 7pm and will be followed by a panel discussion of legal experts discussing the topics covered in the film and how they relate to Canadian residents and the law.

Registration and tickets are available here: http://crossborderlaw.eventbrite.ca

By Mark Belanger

The next time you assist an American citizen involved in a motor vehicle accident that occurred in British Columbia, you should note that PIP liens are not recoverable in British Columbia.

Say you manage to settle a client’s BC mva claim for $25,000 all inclusive, with a subrogation lien of $5,000 by your client’s PIP insurer;  the insurer is not entitled to recover the PIP benefits they paid to your client.

In British Columbia, the deemed release provisions contained in s. 83 of the Insurance (Vehicle) Act state that an out-of province insurer may not recover through the courts in British Columbia accident benefits it has paid.

Out-of-province insurers can have no greater rights than the person who obtained those benefits, and the insured is deemed to have released the claim to the extent of those benefits.

See Schaffer v. McPherson (1997), I C.C.L.I (3d) 88 (B.C.S.C.), and Matilda v. MacLeod (1997), I.C.C.L.I (3d) 94 (B.C.S.C.), both affirmed on appeal 2000 BCCA 1.  A deemed release applies whenever the accident benefits paid by the out-of-province insurer are provided under a contract or plan of automobile insurance and are similar to the benefits paid under the appropriate Regulation in British Columbia.   See Gurniak (Guardian ad litem of) v. Nordquist, 2003 SCC 59.

So the next time you settle a claim that happened in British Columbia, you can save your client from surrendering thousands of dollars of their own money and protect yourself from a potential malpractice claim.

This blog entry is a continuation of my previous post comparing personal injury law in Canada and the US.  The types of damages recoverable are largely governed by the laws of individual states and provinces.  While the lawyers at Cross Border Law are licensed in Washington State and British Columbia, the legal principles expressed in this article are generally the same throughout the two individual countries.

WRONGFUL DEATH DAMAGES

In British Columbia, the estate of a person killed by the negligent conduct of another, whether by a careless driver or negligent surgeon, is limited to recovering survivorship benefits for the decedent’s beneficiaries (in addition to modest funeral and testamentary expenses)—in other words, the spouse and children can recover any amounts that the decedent would have contributed to the household for living expenses.  The estate would be unable to recover damages for the decedent’s pain and suffering or lifetime earnings.

In Washington, a decedent’s estate can recover for many different elements of damages, including pain and suffering before death, fear of imminent death and lifetime earnings less consumption.  Immediate family members present at the time and place of injury can also recover emotional damages under the tort of “outrage”.  Unlike in BC, where the economic damages are limited to the decedent’s contributions to the household, the Washington decedent’s estate can recover the entire amount that the decedent would have earned over his lifetime less what he would have consumed, reduced to present day value in a lump sum.   For an average, middle-aged worker with a college degree, this is easily a seven figure claim. Continue reading →

In both the US and Canada, personal injury law, a subset of the law of Negligence, is based on the English system of Torts.  While much of the procedural law governing personal injury litigation, including the types of damages recoverable, is controlled by the laws of individual states and provinces, the two countries share much of the same substantive law.

Notwithstanding there are some cases governed by strict liability (which will be discussed in a future blog), the law of Negligence requires a showing that a defendant owed a DUTY to someone to behave in a particular way, that the defendant BREACHED that duty by failing to act in that particular way, that such breach CAUSED someone to be injured, and that the person thereby incurred DAMAGES, either to his person or to his property.  These four elements must be proven in every civil lawsuit involving personal injury, whether the lawsuit proceeds in the US or Canada.

For example, Driver Alan is proceeding down Broadway and crosses Pine Street on a green light.  As he drives through the intersection, Driver Barbara, proceeding in the opposite direction down Broadway, suddenly turns left in front of him, causing Alan to smash his vehicle into her, and causing Alan himself to lurch forward, striking his head on the windshield in front of him.  Alan suffers a brain injury and is no longer able to work as an accountant.

Whether on Broadway and Pine in Vancouver, BC or the same intersection in Seattle, WA, the elements which Alan must prove are the same—that Barbara owed other drivers a DUTY to heed the rules of the road, including yielding the right of way to a “favored” (US) or “dominant” (CDN) driver; that Barbara BREACHED that duty by turning her vehicle directly into the path of the oncoming driver; that, as a direct and foreseeable consequence of her action, Barbara CAUSED Alan to be injured and his vehicle damaged; and that Alan suffered DAMAGES, in this case including loss of enjoyment of life, lost wages, medical expenses and property damage.

QUESTION:

I’m a lawyer facing a forum non conveniens challenge from a bicycle manufacturer based in Connecticut, about a Canadian resident who was injured during a Seattle bike race, when the frame of her bike fell apart and she lost control, severely injuring herself.  The company is saying that the case should be tried in Vancouver, BC, where she lives and where all of her doctors and therapists are.  Of course, the liability witnesses are all located in Seattle and Connecticut.

ANSWER:

Thank you for posing your question on our blogsite.  In the interest of responding to your inquiry in a way that will benefit all of our readers, I’d like to direct you to an article, Extending American Products Liability Jurisprudence to Canadian Plaintiffs – Lessons from a Seven Year Battle,  we published in 2004 which extensively discusses the issues you’re facing, regarding Choice of Law and the doctrine of “forum non conveniens”. The article tracks the procedural history of our case, Tepei v. Uniroyal, et al, which resulted in a $9.1 million verdict in Lewis County, Washington.  More importantly for your purposes, the article discusses how the Michelin Tire Company applied (unsuccessfully) to have our case removed to British Columbia on the very same basis that your bike manufacturer is alleging.

A second article, Wrongful Death and Survival Actions in Washington State: Comparing Benefits from a Canadian Perspective, also addresses Choice of Law and fnc issues in our discussion of the Brooks v. Cytodyne case, which arose from an accident which occurred just north of the border, but involved a defective product (health food supplement causing psychosis) manufactured in New York and sold in Kirkland, WA.

On a selfish note, I have twice been called as an expert in such cases, to assist the court with a comparison of the laws on both sides of the border, and that may be appropriate in this case.  I will contact you directly.

In a subsequent blog, I’ll tackle Americans Injured in Canada.  In this piece, I’ll discuss how a claim for a Canadian is different when it proceeds in the US.

Most BC drivers assume that everyone around them is insured.  When they travel in BC, they know that other drivers cannot register their vehicles or obtain license plates without proof of insurance, and the minimum third party liability coverage is $200,000.  However, the very small difference in premiums for $1,000,000 in third party coverage means that most people opt for the million.  Along with that third party coverage, every ICBC policy includes $150,000 in Part 7 no-fault medical expenses (known as PIP or “personal injury protection” in the US), provision for TTD (temporary total disability) payments to compensate for wage loss and $1,000,000 coverage for UMP (underinsurance, known as UIM in the US).

Not so in Washington State.  There, the minimum legal level of third party liability coverage is only $25,000, and many drivers operate a vehicle without any insurance at all.  It is a very rare policy that affords coverage of $1,000,000.  That’s why one of the first things that a Canadian should do if involved in an accident in the US is find out how much insurance the defendant driver has.  If you have a serious injury and expect to be off work for some time, you may find that the defendant cannot adequately compensate you for your injuries.  Assuming he or she does not have personal assets besides the insurance, you may be forced to pursue ICBC under the UMP provisions of your own insurance policy.

Unfortunately, ICBC can force you to pursue your claim Continue reading →