Who do I sue after a car accident?
By Pace Law | December 16, 2019
Fortunately, most drivers in Ontario will not experience a major car accident either in Canada or abroad. Lacking that experience, many people are unaware of what happens after a car accident. Are you finished with the process once you exchange your insurance information? Do you have to see a car accident lawyer to file a lawsuit? If you do, how soon do you schedule an appointment?
Continuing with our series of articles demystifying lawsuits, we will examine the question, ‘Who do I sue after a car accident?’
Understand personal injury lawsuits
Do you have to sue after a car accident to receive compensation?
No! The way Ontario’s auto insurance works is that once the claim is filed, the insurance adjuster will assess the accident and your injuries. Accident benefits in Ontario are paid out regardless of fault. You will receive compensation depending on the results of the fault assessment.
You do not have to sue to receive statutory accident benefits, even if you are at fault.
Sounds simple, right? Well, it is not always that clear cut. A car accident victim may wind up commencing litigation because:
- Fault has been incorrectly attributed (you are said to be at-fault when you did nothing wrong)
- Your injuries have been incorrectly assessed or you have been denied accident benefits in Ontario
- The insurance company is not paying the compensation you need for your treatment
- You need to claim additional expenses/losses, such as loss of income, long term rehabilitation, and caregiving
Who do you sue after a car accident?
In most cases, a car accident lawsuit will be filed against the other driver/drivers who caused the crash. If other parties’ actions contributed to the accident, they may be made party to the suit too. For example, such parties as the city/municipality responsible for maintaining safe road conditions, or private companies tasked with keeping property safe may be added as defendants in a lawsuit.
A car accident lawsuit is usually pursued if the accident is severe, and you have suffered serious, possibly permanent, injuries or the death of a loved one. However, if you are wholly at fault (or primarily at fault) for the collision, the benefits of suing the other driver are significantly limited.
If you are considering suing for emotional trauma, a court will consider such factors as the severity of the event that impacted you mentally and emotionally, the long term/permanent harm it has caused, and the results of a detailed medical prognosis.
Discuss your claim with an experienced car accident lawyer. Not only is it essential that all the parties liable for the accident are sued, you need to understand if they have the means to pay compensation.
It is rare for an insurance company to be sued directly. A car accident victim sues the driver who is at-fault to gain access to his or insurance coverage.
Car accident settlement and lawsuit timeline
You have been involved in a car accident, now what? Understand what happens after a car accident. We are taking the hypothetical case of a driver, Michelle.
- A car accident lawsuit must be filed within two years of the accident.
- A suit is usually filed within six to twelve months of an accident as information is fresh in the mind of the claimant
- The sooner you get in touch with your car accident lawyer, the greater the chances of establishing a strong case
Can you sue someone after insurance pays?
Yes, you can sue another driver for damages even if insurance has made an initial payout. This is especially true after you have received accident benefits. You may still have a claim if, despite negotiating with the other driver’s insurance company, it is not covering all your expenses. To make an additional claim on the driver’s insurance, a lawsuit must be filed.
You can also file a lawsuit for negligence against the driver, independent of compensation offered by the insurer. A personal injury lawsuit lets a victim claim compensation for losses that are not being covered by the insurance company.
However, if you have agreed to waive liability in an insurance agreement, you will likely not be able to sue the other driver for damages.
What can you claim in a lawsuit?
A personal injury lawsuit allows you claim:
Pain and suffering – In Ontario, injuries must be shown to be serious or permanent in order to recover pain and suffering compensation
Loss of income – If your injuries preclude you from pursuing your occupation, you can sue for income-replacement
Other damages – These cover medical treatment, rehabilitation, caregiving costs, compensation for family for attendant care costs and more
Can you sue after a car accident?
The statutory insurance deductible applies to car accident claims. The deductible in Ontario is set at about $40,000 at the beginning of 2020. Therefore, if the court awards you $35,000, you will receive nothing. This mandatory deductible must be paid if the overall award is about $127,000 or lower. For awards greater than that sum, the deductible is waived.
If you have been involved in a car accident, make sure you speak to a Toronto car accident lawyer as early as possible. Experienced lawyers will ensure your case is represented fairly before the insurance company, and that you will be informed of all your legal options in seeking compensation.