The following email comes from Patrick Brown, a cyclist-supporting lawyer here in Toronto. Could cyclists be getting screwed over with insurance settlements in the future? Read on.
This morning I attended a stakeholders meeting with the Ministry of Finance regarding the new changes to auto insurance. It is now on the news.
The present law reform is not fair to cyclists, public transit users or pedestrians.
Today I specially asked whether the reduce benefits being proposed will apply to innocently injured cyclists, pedestrians and transit users. The answer was "yes".
The system here in Ontario is complex to say the least, but I will try to simplify as best I can the issue below.
When anyone [including cyclist, pedestrian car driver] is injured or killed by a bad driver[ even a drunk driver], they will have various benefits available to them. These include various things to help them get better. Medical benefits, rehab benefits, attendant care etc.
With the new changes introduced today, many benefits are being drastically reduced. However, the justification for such a reduction is "consumer choice".
The new insurance reforms provide an option to the auto insurance policy holders to increase the amount of their benefits if they so chose. They simply up the premium in the policy.
However, if you are a cyclist, pedestrian or transit user, and do not have a car insurance policy, you do not have the ability to buy up on your benefits. You have no policy to do so. You must accept these reductions.
Essentially your benefits (if you are part of this group) have just been drastically reduced without the choice of getting more coverage.
How significant are these changes to cyclist and pedestrians. The following are the amount of benefits being reduced.
- Medical Rehabilitation Benefits [non catastrophically injured] are being reduced from 100,000 to 50,000
- Attendant Care Benefits [for non catastrophically injured ] are being reduced from 72,000 to 36,000.00
- Housekeeping and caregiver benefits eliminated.
The insurance companies argue "consumer choice". Ie if you want more benefits you can pay an increased premium. Unfortunately that does not help those without car insurance policies and who elect to travel by a safer and less environmentally intrusive mode of transportation. Many students, seniors, and lower income households do not have vehicles in the city. They do not have car insurance policies. They do not cause injuries. But they do get doored, hit, and stuck down all the time! I
also suspect it will continue for some time.The Government however did do something right. They restored access to claim compensation when someone is killed by a negligent driver. They announced today the revocation of the 15,000 deductible. Many cyclist advocated push to change this. This is a good thing for many who lose a loved one. For instances to give some context, when Ryan Carriere was killed cycling on Queen by a negligent truck driver (four halloweens ago), his family had 90,000 in deductibles taken away from them. Despite successfully proving it was the truck drivers fault and being successful
in their law suit. This was simply taken away as a deductible.The Government will be moving forward in the next two month to draft regulations to bring the above laws into force next year. It is uncertain if they will change this unjust result regarding [cyclist and pedestrian who do not have auto insurance] benefit reduction.
I strongly urge you to let your members know this. This issue will be overshadowed by the lawyers, insurance industry and health professionals during the present media attention to this issue.
Cc. Cyclist
Cc.Yvonne Bambrickhttp://www.news.ontario.ca/mof/en/2009/11/ontario-providing-choice-in-au...
Patrick Brown
Tel: 416-366-3311 Ext 6521
Fax: 416-366-3330
pbrown@mcleishorlando.comMcLeish Orlando LLP
1 Queen St. East
Suite 1620, Box 76
Toronto, Ontario
M5C 2W5
http://www.mcleishorlando.com/
Comments
electric
Disgusting corruption of our values
Mon, 11/02/2009 - 20:10Maybe, big insurance will step forward with costly plans after the liberal ontario goverment takes our means of recourse and support away... maybe.
Looking forward to paying $1200 a year for the ability to walk or cycle around Ontario, because that is the direction we're going with this bill.
Not only do I have to pay taxes for mega-highways, breath horrible smog and be given the finger by the gov't regarding bicycle infrastructure now i'm eventually going to be forced to pay insurance companies a fee so that they can keep their giant profits while enabling the very negligent driver who is going to kill or injury me to get away with a cheap premium.
Great, glad to help.
Matthew Todd (not verified)
Again and again
Mon, 11/02/2009 - 22:47it's this
http://www.ibiketo.ca/blog/2009/05/31/are-motorists-shirking-their-respo...
all over again?
When can cyclists finally buy insurance for themseves?
dash (not verified)
Cyclists being able to buy
Tue, 11/03/2009 - 13:47Cyclists being able to buy insurance still doesn't help pedestrians just walking about, minding their own business. This kind of thing goes beyond us cyclists - it's an injustice to the public at large.
dave (not verified)
why bother
Wed, 11/04/2009 - 09:40if you get into an accident with a car and the driver is at fault then dont use the system of insurance, it's a scam anyway. take driver to court! we have the right to sue negligent drivers for loss of wages, pain and suffering, property damage.
Tone (not verified)
Can we sue or not?
Wed, 11/04/2009 - 09:56This is one of the things that has always confused me about "no-fault" insurance.
If I get hit by a driver, am I limited to the benefits provided by the driver's insurance company? Or, can I sue in Ontario for further damages?
I was always under the impression that suing was more difficult in Ontario ... or is it just that the time and expense is rarely justified unless you have a really significant claim (i.e. death or life-altering injury).
If I can still sue, I'm not sure that the insurance reforms matter. As a cyclist, I'll probably require more care than the benefits will provide anyway (plus the loss of wages, etc.). But, if I cannot sue ... or if it's rarely practical, then that's a whole different story!
herb
hurts all cyclists
Wed, 11/04/2009 - 16:29Considering the time and pain and money it takes to sue someone, you bet this will affect all of us. The amounts are being cut by a 50% - a huge difference. Now we are losing an easier way to get the care we need to recover from injuries caused by an automobile.
Autoinsurance.ca says that:
You can sue, but now the threshold at which you'll need to make this choice drops. It means lawyers will take a much bigger chunk of your money that is meant to help you recover.
electric
Yes you can launch a tort
Wed, 11/04/2009 - 22:31But things will come up like, "Who's fault was it really?" You also must prove negligence and lack of duty of care. All these things will play a much larger role in determining how much remuneration you receive.
If you're just going with insurance then the company pays out after somebody they've insured runs you over. Now you're going to have to launch a tort case and hope you can prove negligence and all the above if you want to receive a decent settlement. So in effect the onus has been shifted from the insurance company and the driver onto the pedestrian or cyclist. Which is just ethically wrong since automobiles and their supporters need to bear the proper burden for their presence and ill effects on the public.
One of the main reason insurance companies stand to make money off this deal is because they've cut all possible benefits to people who aren't paying customers by half. These people never had to pay into their system before and rightfully so since they were not the ones driving and endangering others. However, not to miss out on the ubiquitousness of the car in public life, the modern insurance fraudsters and gov't feel it is time to bring forth such changes and just concede that everybody has car insurance and is a stakeholder in the auto insurance system.
jay ralston (not verified)
can we sue or not
Wed, 11/11/2009 - 08:10The answer is yes and no. You can always sue for loss of income, loss of future income, loss of "competitive advangage" and a loss of earning capacity. You cannot sue the negligent driver for pain and suffering unless you suffer serious and permanent impairments of important functions - whether physical or psychological. Pain and suffering is subject to a $30,000 deductible - unless your pain and suffering is quantified at more than $100,000.00 - in which case the deductible disapears. Clear as mud yet? You can sue for certain medical costs if your pain and suffering is valued over $100,000.00.
Just because you can sue in some cases does not mean that is a solution for you if you are struck by a car. Suing will absolutely take at two or three years or more. How do you recover from injuries if you can't get the appropriate treatment in the meantime? Much of the accident benefits (proposed by the government to be reduced) are not OHIP covered. Also - the costs of the assessments done to determine what treatment you require is included in the proposed $50,000.00. It is not uncommon for insurers to use up many thousands of dollars paying their hired doctors to give them an opinion that the injured person does not require the very medical treatment that the persons own physicians, physiotherapists and other caregivers believe necessary.
All of the proposed changes by our government do not reduce the cost of driver's insurance as that is understood traditionally - while the premiums may be lower - the insurance coverage is lower. All this will do is cause serious hardship to lower income Ontario residents that are injured in accidents and to the Ontario tax payer - while providing auto insurers with more profits. If the insurance companies are losing money on every policy - why are they still advertising for more business?
The Pedaller (not verified)
In Sure
Wed, 11/04/2009 - 16:03If a driver hits me and injures me I will sue for damages, regardless of my status as an insured.
Kevin Love
Good news! You have an easy time suing
Wed, 11/04/2009 - 16:57Ontario law assumes that the motor vehicle operator is responsible for the crash damages unless he can prove otherwise. From section 193 of Ontario's Highway Traffic Act:
"When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle. 2005, c. 31, Sched. 10, s. 3."
Source:
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e...
If the crash involves relatively low sums of money, you may be best suing in small claims court. For example, suppose damage to the bicycle was $560 and you were carrying groceries worth $83 of which $38 were destroyed in the crash, and your $180 jacket was ripped and damaged. Your total damages were $778. This would be a typical small claims court case. You do not need to hire a lawyer; just bring in receipts, the police report, and show up with any witnesses to explain to the judge what happened.
On the other hand, if the crash involves injuries for which you are claiming high sums due to past lost work time and/or future earnings impairment, I strongly advise you to hire a lawyer. In either case, the car driver and/or his insurance company is on the hook to pay unless they can prove they were not responsible.
herb
cyclists and peds really out of luck
Wed, 11/04/2009 - 22:19James Daw of The Toronto Star has a different take on it for peds and cyclists:
If they're correct then that would be good, right? But apparently the article is wrong. I double checked with Patrick Brown. He informed me that James Daw meant pedestrians and cyclists "could still continue seek additional compensation as they always did." Patrick contacted the "policy division of FSCO (govt arm for insurance) and they confirmed cyclist will get the reduced benefits with no exemption."
Daw told Brown that if this were true this would be unfair. I think we'll be seeing more info coming from the Star on this.