Entries Tagged 'Personal Injury' ↓

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This is an article that Wyatt Pickett and I wrote a while ago. I think you’ll find it interesting…

At Cross Border Law, our practice focuses on complex multijurisdictional civil litigation that implicates interests on both sides of the U.S.-Canadian border.  Yet we’re often confronted with questions – either directly from potential clients, or from referring Canadian counsel — regarding cases that present more modest challenges.  For example, non-catastrophic personal injury claims arising out of auto accidents in the United States between a Canadian plaintiff and a U.S. defendant often pose straightforward litigation problems which don’t require specialized expertise in choice-of-law or forum non conveniens to resolve. The temptation to settle such cases on your own, without the assistance of U.S. counsel, can be compelling – and in certain cases, may be appropriate.  But if you’re going to try to resolve your client’s U.S. based personal injury matter short of filing a lawsuit, keep these four key points in mind:

1) Costs are not generally recoverable in U.S. jurisdictions – Of the 50 state jurisdictions in the U.S., only Alaska follows a modified version of the “costs to the victor” approach followed by the British Columbia Rules of Court.  In all other states, the plaintiff will generally be fronting his own costs for record production, expert witness fees, court reporters and the like.  Thus, if you’re going to attempt to prepare your client’s case for settlement, the key is to find ways to obtain essential evidence and expert reports in the most cost-effective manner possible.  If presented with a settlement offer, you must likewise consider the cost of bringing your BC-based medical experts and fact witnesses to the U.S. forum in the event that your client rejects settlement and proceeds with a lawsuit.  While there are occasional exceptions to the “no costs” regime, the simple fact is that many small to moderately sized cases may have legal merit, but are simply not financially feasible for a BC plaintiff to pursue. In some such cases, settlement may be your only realistic option.  In others, your jurisdiction may offer alternatives such as mandatory arbitration or “small claims” courts, where relaxed rules of evidence (such as limits on defence discovery, or easy introduction of testimony by telephone or written report) might be sufficient to make a claim feasible to litigate.
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Continuing on from where I left off in the last article “Canadian Client Injured in America“

All About UMP
Most importantly, you need to be mindful of the way that underinsurance (UMP) works for all BC residents.  You cannot settle a US action for policy limits without first obtaining ICBC’s consent; otherwise, you risk forfeiting your client’s entire UMP claim.

Every ICBC-licensed driver, member of the household of the licensed driver and occupants in his or her vehicle maintains CDN $1M UMP coverage, providing a social safety net for significant claims.  In reality, the various deductions for Canada Pension Plan, (un)-employment insurance and both public and private disability plans reduce UMP awards so drastically that they provide very little safety net for a catastrophically injured plaintiff.  Still, it represents a potential claim worth at least several hundred thousand dollars, and you certainly don’t want to face such a legal malpractice claim for preventing your client from being able to pursue it.
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Over the next couple of posts I’m going to include information from a recent presentation I gave at a Washington State Trial Lawyers Association (WSTLA) event – they are now called the Washington State Association for Justice (WSAJ).

There are reportedly more than 5,000 accidents per year for British Columbians outside of the Province, and I only have the capacity to handle half of them.

I’d expect that, in such cases, you’d find a Washington lawyer with whom to associate so that you could properly maximize your client’s entitlement. What is true in BC is equally true in Washington, that insurance adjusters are simply not going to settle claims for decent value unless and until counsel is able to demonstrate the ability to take a case to trial.
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