Entries Tagged 'US 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 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.

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 →