Entries Tagged 'Personal Injury' ↓

By Greg Samuels

A review of historical Washington judgments and settlements reveals that some Vancouver and lower mainland residents hire Seattle personal injury attorneys for their cross border claims.   While some of the Seattle lawyers were probably retained from recommendations by local British Columbia counsel, the ease of internet “searchability” allows a prospective plaintiff to find a lawyer in any location.  The search engine Google actually tracks the words used to search for lawyers, and remarkably, “Seattle personal injury attorney” is used by British Columbians to find lawyers suited to their cases throughout Washington.

Unlike British Columbia, where a personal injury lawsuit can be commenced in any registry throughout the province (most likely the one convenient to the lawyer), Washington law requires that the lawsuit be started in either (1) the county where the conduct causing the injury occurred, or (2) the county where the person causing the injury resides.  Therefore, when searching on the internet for a Washington lawyer, one could simply add the county of injury or county of defendant’s residence to the list of search terms to find a lawyer close to the courthouse where the action has to be commenced.

Of course, the reason that “Seattle” is being used as a search term has more to do with the assumed expertise of counsel than to the lawyer’s proximity to the courthouse.  But big city does not necessarily mean good lawyer.  There are good personal injury lawyers in Seattle and not so good personal injury lawyers in Seattle.

When a BC resident is searching for a Washington lawyer to handle his or her personal injury or wrongful death claim, these are the factors which should influence that decision:

• Does the lawyer spend the majority of his or her time dealing with personal injury claims?
• Does the lawyer have an established track record of significant settlements and judgments?
• Is the lawyer familiar with the subtle nuances and procedures unique to Canadians in Washington courts?
• Can the lawyer deal with both ICBC and the American insurance company in resolving the claim?
• Is he or she qualified as a personal injury lawyer in both British Columbia and Washington State?

Likewise, a proper search would include such terms as “Canadian, American, Cross Border, Personal Injury, Wrongful Death,  ICBC and Washington”.

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.

Ten-Minute Course
Avoiding Legal Malpractice Claims in Canadian P.I. Cases
(or Can You find the Missing $865,000?)

By Greg Samuels*

The Fact Pattern:
John Smith is a Washington resident, insured by GEICO, who was catastrophically injured as a passenger in a motor vehicle accident in Vancouver, B.C. The Defendant, Jane Doe, also a Washington resident and determined to be 100% responsible for the accident, is insured by Farmers’ with a minimum $25,000 third party liability policy. Mr. Smith has PIP coverage of $10,000 and UIM of $100,000 with GEICO. His future medical expenses alone will exceed $2 million. You have determined that Ms. Doe is insolvent, and you are now in a position to settle Mr. Smith’s case with the various insurance companies. How much do you settle for? Disregarding exchange rates, if you said $135,000, do yourself a favor and buy more malpractice insurance.

The Proper Analysis:
The Insurance Corporation of British Columbia (“ICBC”) provides minimum third party liability coverage to every B.C. driver of $200,000. ICBC also grants $150,000 in no-fault medical and rehabilitation benefits (“Part 7 Benefits”), as well as $1 million in UIM or “UMP” coverage, subject to certain deductions. Owing to a certain Power of Attorney and Undertaking (“PAU”) which Farmers’ filed with the Canadian Council of Insurance Regulators (“CCIR”) on September 26, 2002, Farmers’ is obligated to increase the minimum limits offered to its policyholders for all classes and kinds of coverage, whenever one of its policyholders is involved in an accident in British Columbia. These classes and kinds of coverage include tort, PIP and UIM.

In other words, you can disregard Mr. Smith’s and Ms. Doe’s limits of coverage and look instead to ICBC’s minimum limits. You should settle Mr. Smith’s tort claim with Farmers’ for $200,000 plus an additional $150,000 for PIP or “Part 7 benefits”. You should then settle Mr. Smith’s UIM claim with Farmers’ (and possibly GEICO) for $650,000 ($1 million less amounts received in tort and Part 7, as well as any other applicable deductions). Continue reading →

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.

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 →

Personal injury awards are governed by the law of Negligence, which always includes several basic elements—Duty, Breach, Causation and Damages—but one cannot look to a national set of awards to determine what an appropriate range of damages might be for a specific case.  This is due to the fact that stare decisis, the common law principle that every case is determined by the law developed from  cases that preceded it, requires a judge to give greater deference to a decision from his or her own state than one from a different state.

Even that explanation ignores the fact that most personal injury awards made at trial in the U.S. are determined by a jury.  Still, one must look to other personal injury awards in the state and in the particular county in which the case will be tried to determine the appropriate range of damages.

Jurors from King County, Washington (Seattle) may have a completely different set of values than jurors from Riverside County, California (Palm Springs) or even from Whatcom County, Washington (Bellingham).  Such factors as age, level of education, job, political bent, the economy, one’s own unique personal circumstances, and many other factors all contribute to the range of potential damages awarded for “pain and suffering”.  Different lawyers’ abilities to tell their clients’ stories also contribute to this range.

How does one determine which county the case is likely to be tried in?  The laws of “Personal Jurisdiction” and “Venue” require that the lawsuit be started in either the county where the accident occurred or the county in which the defendant resides.  However, if started in the county where the defendant resides, the defendant could apply to the court to have the litigation transferred to the county where the accident occurred, particularly if that would be more convenient to the non-interested witnesses involved in the case (eyewitnesses to the accident, medical personnel on the scene, ER doctors and nurses).

In Washington State, one useful tool for attorneys is a publication called “Jury Verdicts Northwest”, which lists trial awards and settlements by type of injury, state and county, and even principal lawyers and experts.  Determining appropriate settlement amounts for a particular injury is then more of an “art” than a “science”, as there are many factors that influence a settlement.  First and foremost, as discussed in our blog entry of April 2, 2009 (Colossus Adjusting Software), is the type of adjusting software the defendant’s insurance company is using to evaluate the case.  For many insurers, the claims representative can do little more than plug your data into the computer and wait for the Wizard to tell him or her how much to offer.  Where the adjuster may have more discretion, there are other factors which will influence the size of the offer.

One of these factors is whether the injured party is represented by a lawyer in the jurisdiction in which the accident occurred.  In other words, if the case cannot be settled, is the party able to advance a lawsuit in the courts?  If not, then the insurance adjuster has been given no incentive to increase the size of the offer.

Let’s face it, no one wants to go to trial. (Personally, I love to be in a courtroom, but even I recognize the value of a sure settlement for reasonable value over the risk of a protracted lawsuit where a party’s fate may be sealed by a jury who cannot understand or appreciate the injuries and disabilities sustained).  But sometimes, a defendant’s insurance company will offer so little to settle that no one would choose settlement over trial.  If a defendant or his insurer truly wishes to avoid trial, they’ll consider the likely result at trial and then determine the amount that would persuade a party to forego that opportunity.  Unless a person is represented by able counsel in the jurisdiction, then there’s no potential jury award even to provide a threat to the insurance company.

I try to keep track of the amounts of the last settlement offer received before trial and the ultimate jury verdict we have received (US cases only), excluding economic damages that are specific to the facts of each particular case (e.g., future wage loss depends on how much the person was earning and how much they’re unable to work in the future).  In our experience, the verdict exceeds the offer by an average of 425%.  The following chart is illustrative, and does not even represent the most egregious differences between offer and verdict.

Offer………..Jury Verdict
$100,000….$737,500
$125,000….$1,145,000
$3,000……..$101,000
$40,000……$135,000

My best advice to a person negotiating a personal injury settlement with an insurance adjuster?—ask a lawyer to review the settlement.  Many personal  injury lawyers are willing to sit down for a free half-hour consultation, and many work on contingency, where the fee is a percentage of the recovery.  I frequently entertain arrangements with clients whereby I will take half of any amount I receive for them in excess of their offer, up to a maximum of 1/3 of the total recovery.  In most cases, the ultimate attorney’s fee I charge is 1/3, meaning that the amount that the insurance adjuster offered them before they had a lawyer was less than 1/3 of the true settlement value.

Some refer to firms like ours as “boutique”; others say “we specialize” in a certain area of the law.  The Law Society of British Columbia prohibits lawyers from advertising that they specialize, which implies a higher level of education or training.  They do permit lawyers to say that their practice is focused or limited to a specific area of the law.  The lawyers at our firm, Cross Border Law Corporation, are licensed to practice in both United States and Canada, which is unique, in and of itself.

But what truly sets us apart from other personal injury boutique firms is our commitment to Value, not Volume.  Ask a personal injury lawyer how many files he’s currently handling.  Is it 125?  Is it 200 or more?  So characterizes a “Volume” practice—sign up clients, the more the merrier; have a paralegal or non-paralegal “litigation manager” primarily responsible for the file; focus on settling—as quickly as possible—for whatever sum can be achieved with modest effort; next case. Continue reading →

This article is no longer available. Contact one of our US peronal injury lawyers in Vancouver for more details on Bad Faith law or to discuss your case.

This article is no longer available. Contact us with questions on your Canada or US personal injury case.