Plaintiff’s Personal Injury Claims
Mr. Firestone has over 30 years experience in prosecuting Plaintiff personal injury cases. I have handled all types of motor vehicle claims from the usual fender bender with whiplash up to catastrophic injuries, including brain injury claims.
If you are involved in a car accident you have certain duties as driver. You must notify your insurer, usually in British Columbia it is ICBC. You must obtain a claim number and you have a duty to cooperate with the insurance company. Your first contact is with an adjuster. You should understand that the adjuster’s goal is to save the insurance company money. You are by definition in an adversary position with the adjuster.
If there is an issue as to who is as fault and the police are potentially involved contact a lawyer immediately. I have regularly be retained to make sure that the driver discharges their duty to cooperate with ICBC without incriminating themselves. I have assisted clients in drafting a statement for the adjuster in appropriate circumstances.
While there are many issues to consider when you believe you have been injured in a car accident and you are seeking justice but I will touch on only some of them:
1. There is a limitation period. You have only 2 years to sue the negligent driver for your injuries. If there are children involved they may have longer but consult a lawyer about limitation periods as soon as you can. Do not let your case die because of a missed limitation periods. (There may be shorter limitation period in other kinds of insurance, so be careful to check about the Statute of Limitations in your case.)
2. If you are involved in a motor vehicle accident you are entitled to no fault damages as well as your fault based damages. You should ask your adjuster if you qualify for any no fault benefits. If the driver is killed in the accident your family may be able to get a contribution to the funeral costs. There is no harm in asking the adjuster what, if any, no fault damages you may be entitled to. Inform yourself about your entitlements and call a lawyer to confirm your position.
3. To pursue your fault based damages consult a lawyer so you have an understanding of what the courts award for personal injury damages. The adjuster’s job is to know what the Court’s regularly award. You need to inform yourself about your entitlements.
4. Do not settle your case directly with the adjuster unless you are satisfied that your medical condition has plateaued and that you are getting fair compensation based on case precedent. Once you accept a final settlement with ICBC your case will not usually be reopened by the courts. The courts respect final ordering by parties and the releases written by ICBC have been regularly enforced by the Courts. The best practice is to hire a lawyer as the playing field becomes even because your lawyer is aware of case precedents and what the Courts awards in similar types of personal injury cases. Make it a a level playing field by hiring your own lawyer to make sure you are properly compensated.
5. It is expensive to hire a lawyer. There are basically two ways to hire a lawyer in this area: at the regular hourly rate or on a contingency fee contracts. (% paid to the lawyer based on recovery). All contingency fee contracts must be in writing and are governed by the Legal Professions Act. Do not enter into a contingency fee contract unless you understand its contents and meaning. I have taken both hourly rate retainers and contingency fee contracts. Hourly rates require payment as the service is required and is paid regardless of outcome of your case. The contingency fee contract entitles you to enter the legal system without a large initial financial outlay. The biggest cost of any personal injury case are the medical reports necessary to prosecute your claim. How they are obtained and used must be understood by the client.
6. To succeed on a Personal Injury suit a law suit is essential because in the end of the day your entitlement is decided by a Judge who is fair and impartial and decides your case based upon fact and precedent. I tell clients regularly their entitlement comes from the provable injuries established by the evidence and we are not going “cap in hand” to ICBC, we are going to court to prove your injuries and financial loss in front of an impartial Judge. ICBC will either pay (settle) what the case is worth or we will go to court where an impartial Judge can decide your entitlement.
7. As personal injury cases ultimately are about proof, start a diary soon after the collision as you can. Document your injuries and who and when you are seen by anyone concerning the collision. Ultimately you may have to testify in a Discovery (a pre-trial procedure anticipated by the Supreme Court rules) or at a trial. You will find it much easier if you have kept notes of your recovery including your medical symptoms and when and who you saw to get better.
8. There are two levels of court that accept Personal Injury Actions: the Small Claims Court (financial jurisdiction up to $25,000.00) and the Supreme Court which has jurisdiction of cases over $25,000 and there are serious potential financial consequences if you start an action in Supreme Court and end up with a monetary award in Small Claims jurisdiction less than 25,000.00.
9. Contact a lawyer to sort our whether your case should be started in Small Claims Court. If you are considering representing yourself in Small Claims court, please make sure you understand their rules including the need to file a Certificate with your medical reports and receipts for your out of pocket expenses caused by the collision in order to reserve a trial date. I fear many cases in Small Claims do not get prosecuted correctly. Traditionally I will not take a case in Small Claims jurisdiction as I see that court as a “Peoples Court.” The decision is up to you as whether you want to pay a lawyer to go to Small Claims Court but there are many fine lawyers who do take retainers to go to Small Claims and we can refer you to one if your want. My assessment for the minor cases that clients can represent themselves successfully in Small Claims court as the issues are straight forward: who is as fault and what damages were caused by the fault (negligence) of the other driver. Medical reports and receipts will be necessary to prove your loss in Small Claims.
10. We offer a small dedicated law firm and we are prepared to help you make it an even playing field with ICBC. It is our view that your case should never settle your case directly with an adjuster without talking to a lawyer to make sure you are properly compensated.
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