Not too hurt, not hurt enough, hurt JUST right …. in order to bear the insurance deductible

By Michelle Arzaga | May 29, 2019

In almost every culture there is a version of the story of Goldilocks, the precocious child who imposed herself on unsuspecting strangers and then tested her options until she found the one best for her liking.

This is the story that came to mind when reviewing the Auto Insurance portion of the 2019 Ontario Budget.  There was anticipation that the Ontario government would take steps to reduce, or even eliminate, the unfairness of the statutory deductible imposed on claims for pain and suffering. Unfortunately, the government didn’t touch the deductible in the latest budget.

It would be too politically hot for the government to eliminate the deductible that benefits insurance companies and helps these companies save almost $40,000 on each claim put forward for pain and suffering. Yet, it would be too cold to ignore the injustice and not commit to further consideration on how the deductible unfairly impacts motor vehicle accident victims.

Will the government, like Goldilocks, ever find what is “just right”?

By way of background, for motor vehicle accidents that occur in Ontario, there is a statutory deductible imposed on damages for pain and suffering that fall below a specific monetary threshold.

Prior to August 2015, a defendant’s insurance company was entitled to deduct $30,000 from an award for pain and suffering under $100,000. This left plaintiffs with significantly less compensation than what was awarded by a jury or judge.

In 2015, the situation got worse.  Amendments to the Insurance Act raised both the threshold and the deductible amounts, and tied them to annual inflation.

Now, in 2019, the deductible for pain and suffering damages is $38,818.97, and the threshold over which the deductible does not apply has increased to $129,395.49.  Any amount for pain and suffering damages below this threshold is subject to the deductible.  Plaintiffs will continue to be stripped of their damages as these amounts increase with inflation year after year.

If accident victims escape with minor injuries, they may not be able to bring forth a claim for pain and suffering if their damages amount to less than the deductible.

If drivers sustain more complex injuries, yet the damages still fall below the prescribed monetary threshold, they will be able to bring forth a claim, but will forgo the first $38,000 (almost $39,000) of their settlement.

Motor vehicle accident victims with catastrophic injuries do not have to face the deductible, but they still face the possibility of the monetary threshold increasing to the point that the deductible may be applied to their pain and suffering claims in the future.

Unless the government decides to do something about the deductible, that possibility will become a reality.

 

Michelle Arzaga, is a personal injury lawyer at Pace Law Firm with an expertise in litigating claims on behalf of  pedestrians, motorists and motorcyclists seriously injured from accidents with motor vehicles. She can be reached at MArzaga@pacelawfirm.com.