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30/Sep/2014
Advance Payments: Getting Paid While You Wait for Your Case to Settle

Becoming injured in a motor vehicle accident can be an overwhelming experience.  An injured victim must contend with the pain and limitations caused by the injury itself, and the uncertain duration of the rehabilitation and recovery period.  The physical and emotional sequelae of an injury are bad enough – but it is the financial stress of being unable to work and provide for oneself and one’s family that is often the most devastating consequence of a serious injury.

Anyone injured in a motor vehicle accident in Ontario is entitled to mandatory accident benefits.  The formula for quantifying the income replacement benefit (“IRB”) is now 70% of a person’s gross income; however the actual IRB for someone who suffers an income loss as a result of a motor vehicle accident is capped at a maximum of $400 per week.  Although Ontarians can purchase enhanced coverage to increase the basic IRB of $400 per week to a higher amount, few actually do so.

Moreover, people who are injured in auto accidents are often not aware that since September 2010, there is a $50,000.00 cap on medical and rehabilitation benefits for non-catastrophically injured claimants.  In serious injury cases, this sum can be exhausted within less than one year of the accident.  This often leads to a gap in coverage for accident victims who have sustained very serious injuries but who may not meet the definition of “catastrophic impairment,” or who are required to wait until their catastrophic status can be assessed.

At Bogoroch & Associates LLP, we understand the degree of financial stress and uncertainty that accident victims face in these situations, and have devised a pro-active strategy to address it by bringing motions before the Superior Court of Justice for advance payments.  Advance payments are designed to bridge the gap until mediation or trial, so that the injured person will not be in financial straits for any significant length of time.

Advance payments, in certain circumstances, can be obtained in the tort action, which is the case against the at-fault party, from the insurer defending the action for damages brought by the injured plaintiff. Relief is available under the Insurance Act, and also under Rule 20 of the Rules of Civil Procedure for partial summary judgment.

Section 258.5 of the Insurance Act requires that insurers shall attempt to settle claims as expeditiously as possible. If the insurer admits liability in respect of all or part of a claim for income loss, the Insurance Actprovides that the insurer shall make payments to the claimant pending determination of the amount owing.   Despite these provisions, insurers are reluctant to make advance payments.  As such, motions in court on behalf of injured plaintiffs must usually be brought before insurers will even consider them.  The intention of the advance payment, as stated in section 256 of the Insurance Act, is to permit payments to a claimant, without prejudice to the defendant or the defendant’s insurer.  This means that if the case ultimately goes to trial, neither the judge nor jury is told about the advance payment so as not to influence the outcome of the trial.

The advance payment may be made by the defendant’s insurer either as an admission of liability or otherwise.   Although it makes for a more compelling argument for the insurer to make the advance payment if the defendant has admitted fault for the accident, an admission of liability is not required.

In cases where the defendant has been convicted of a driving offence as a result of the motor vehicle accident, or when the facts of the accident clearly point to the liability of the defendant, a motion can be brought for the court for partial summary judgment.  Basically, the Court is asked to determine that there is enough evidence to find the defendant liable, at least to the extent of the amount of the advance payment being requested.

Motions for advance payments require careful planning and preparation.  Bogoroch & Associates LLP compiles the necessary evidence to win the motion which consists of: police documents and statements from witnesses to the accident to support a finding of fault, medical evidence attesting to the severity of the plaintiff’s injuries, together with evidence that the plaintiff has sustained a loss of income  as a result of the accident.

We at Bogoroch & Associates LLP feel strongly that insurers be required to make advance payments where the circumstances warrant them, and will not hesitate to fight for our clients by bringing motions for advance payments to help them financially until their case is settled or goes to trial.


 

To learn how we can help, feel free to contact:

Richard Bogoroch: rbogoroch@bogoroch.com

Tel: 416-341-5600

(or) Heidi Brown:  hbrown@bogoroch.com

Tel: 416-341-5603

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