Greg Monforton & Partners’ Senior Associate Joanna Sweet wrote an article for The Litigator, a publication of the Ontario Trial Lawyers Association (OTLA), providing guidance for plaintiff lawyers on obtaining compensation when a client is faced with coverage-related issues.
In the December 2020 publication, Joanna discusses how the minimum coverage limits may not be enough to cover the losses a client sustains in an accident. This can happen if the defendant does not have access to an insurance policy.
As an OTLA member and having represented many clients with accident benefits claims, she has seen firsthand how a lack of coverage can affect an injured victim’s ability to recover damages. This issue may be quickly discovered or arise during the claims process.
Even if the at-fault driver was insured at the time of the accident, his or her insurer may deny coverage if they believe that there was a policy breach. Examples could include driving without a license, failing to cooperate, failing to report the accident or driving a car without permission.
If the at-fault driver is uninsured or has not been identified in the case of a hit-and-run, an injured victim can turn to his or her own uninsured and unidentified motorist (UIM) coverage. To access this coverage, the injured victim must take legal action against all other parties involved with liability policies that could cover their damages. If he or she cannot recover against any of them, UIM coverage will kick in.
If neither the injured victim nor at-fault driver is insured, Joanna states that, “An uninsured driver does not have a right of action to recover any loss or damage from bodily injury or death if they were driving without a valid contract of automobile insurance.” However, there may be an exception to the rule.
If the client is an uninsured passenger in an uninsured car and the crash is the uninsured driver’s fault, but an insured third-party vehicle is also involved, the client may be able to access Statutory Accident Benefits (SABS) and UIM coverage through the insured third-party vehicle’s policy, regardless of fault.
Overall, it is the responsibility of the plaintiff's lawyer to be informed of any and all insurance policies and coverage his or her client may have in order to help maximize their recovery.