To Pay or Not Pay: Subrogation Liens Arising Out of a British Columbia, MVA

The next time you assist an American citizen involved in a motor vehicle accident that occurred in British Columbia, you should note that PIP liens are not recoverable in British Columbia.

Say you manage to settle a client’s BC mva claim for $25,000 all inclusive, with a subrogation lien of $5,000 by your client’s PIP insurer; the insurer is not entitled to recover the PIP benefits they paid to your client.

In British Columbia, the deemed release provisions contained in s. 83 of the Insurance (Vehicle) Act state that an out-of province insurer may not recover through the courts in British Columbia accident benefits it has paid.

Out-of-province insurers can have no greater rights than the person who obtained those benefits, and the insured is deemed to have released the claim to the extent of those benefits.

See Schaffer v. McPherson (1997), I C.C.L.I (3d) 88 (B.C.S.C.), and Matilda v. MacLeod (1997), I.C.C.L.I (3d) 94 (B.C.S.C.), both affirmed on appeal 2000 BCCA 1. A deemed release applies whenever the accident benefits paid by the out-of-province insurer are provided under a contract or plan of automobile insurance and are similar to the benefits paid under the appropriate Regulation in British Columbia. See Gurniak (Guardian ad litem of) v. Nordquist, 2003 SCC 59.

So the next time you settle a claim that happened in British Columbia, you can save your client from surrendering thousands of dollars of their own money and protect yourself from a potential malpractice claim.

With Everything Today Settled Online, Do I really Need A Lawyer?

With Everything Today Settled Online, Do I really Need A Lawyer? seattle injury lawyerWhy do I need a lawyer to deal with a serious personal injury claim?
When you’ve been injured, the party responsible for your injuries often carries insurance to cover some or all of the damages you have suffered. However, an insurance company’s primary goal is to maximize its profitability by minimizing the amounts it pays out in claims. Insurance adjusters are professionals – and they’re skilled at undervaluing the claims of injured people for their company’s benefit. You can choose to settle a wrongful claim on your own – but you may end up settling your case for a fraction of its true value. Hiring the right lawyer levels the playing field between you and the insurer, and ensures that you receive compensation for the full value of your claim.

This is particularly true in the following situations:
– Wrongful Death

– Catastrophic Injuries

– Medical Malpractice

– Defective Products

Do I need a personal injury lawyer with “foreign” legal experience?
When cases implicate the laws of more than one province, or states south of the border, you need a lawyer familiar with handling complex cross-border cases to ensure that your case is competently handled from start to finish. The interplay of laws between provinces and between countries demands a specific skill set most lawyers will never glean from a lifetime of domestic cases.

What makes the Cross Border Law approach unique?
At Cross Border Law, we handle death, injury, medical malpractice and product claims for Canadians in the U.S., and for Americans in Canada. As lawyers who focus their practice on complex cross-border litigation, we’re fully aware of the subtle nuances between American and Canadian law, and put our knowledge to work to maximize your recovery. We prepare your case for trial, not for settlement. While most cases eventually settle before trial, we believe that thorough preparation for trial is the best way to maximize the value of your case. If the insurer seeks to settle on your terms, we’ll always listen. If not, we are fully prepared to “go the distance” and take your case to the courtroom. We believe a trial-focused approach is sound in principle, and delivers results in practice. See our Results for examples of how some of our past clients have benefited from this approach.

Can I afford a personal injury lawyer?
We typically handle cases on a contingency basis. We are paid a portion of the total recovery, and not until you recover. While you are ultimately responsible for disbursements or litigation expenses, we are prepared to advance the necessary sums to prove your case. We are pleased to offer a free initial consultation to give us an opportunity to explain how we might assist you.

To get help with your case right away simply fill in the free no-obligation consultation form below or call us at 604-742-4242 now.

Negligence and Strict Liability: True BURDENS OF PROOF

icbc insurance claims vancouver bc
3d image Compensation issues concept word cloud background

In every civil case, the plaintiff has the burden of proving the basic elements of negligence—duty, breach, causation and damages—and such proof is required by “a preponderance of the evidence”. This is defined as “more probable than not” or “more likely true than not true” or “on a 51% basis”. The reality is that a plaintiff must be prepared to show proof on a much more significant basis than 51%, as a juror is unlikely to award significant damages without substantial proof of injury and loss.

However, there are some cases that impose a different burden on a plaintiff—notably Products Liability cases in the US are governed by Strict Liability. In such cases, a plaintiff who was injured by a defective product must prove that the product was defective. Once the product is shown to have been manufactured defectively, the defendant manufacturer is liable, period. If, for example, a family is driving down the road and one of the tires on the vehicle suffers a sudden loss of air or “blowout”. The vehicle flips, passengers are ejected and all suffer serious personal injuries and losses. At trial, the injured parties must prove that the blown out tire was manufactured defectively, and once proven, their burden stops there. The manufacturer of the defective tire is then liable for any damages that are proven.

In BC, a plaintiff’s burden of proof for a defective products case is much more onerous. There a plaintiff must prove that the defendant manufacturer was negligent in the way it designed or manufactured the product. This is a significant burden and good reason why there are very few products cases that proceed to judgment in British Columbia.

What Cross Border Law Learned From Todd Bertuzzi and the Oregon Bus Crash?

Remember Steve Moore vs. Todd Bertuzzi, originally filed in Colorado State court? That case tells us a lot about what NOT to do when contemplating a lawsuit between parties of different jurisdictions. These lessons are also instructive for potential litigation arising out of the tragic December 30th Oregon bus crash which killed and injured many Canadians and Koreans.

The simplest lesson is this–Don’t file a lawsuit until you’ve determined which jurisdiction’s laws provide the most favourable outcome, both in terms of proving liability and maximizing damages. When courts consider whether plaintiffs chose the wrong forum, and dismiss suits to other jurisdictions, these plaintiffs get stigmatized as “forum shoppers.” When that same analysis is considered prior to filing, to consciously decide the most appropriate court in which to do so, it’s considered good lawyering.

Steve Moore apparently didn’t realize that Colorado’s Citizens’ Access to Colorado’s Courts Act, §13-20-1001, et seq. required that he be a resident of Colorado, and not Thornhill, Ontario, in order to proceed with a case there. Noting that British Columbia provided a more appropriate forum, since all of the defendants either resided or did business here, the Colorado Court declined to find personal jurisdiction over Bertuzzi, Orca Bay, Marc Crawford or Brian Burke, and ordered Moore to pay costs for their defense. Rather than heeding that court’s suggestion (and probably assuming that he’d be denied a fair trial in Canucks country), Moore proceeded to file in Ontario, alleging that the Ontario Court had appropriate jurisdiction since Moore’s parents watched the hit on TV in Ontario and suffered nervous shock there. As of this writing, the Ontario Court has yet to rule on that case.

Over the past two weeks, we’ve read that four people injured in the Oregon bus crash have now filed suit, just weeks after the crash–two Korean students in Washington having filed there and two BC residents having filed here. I’m left asking “Why?”. Sure, BC and Washington both have some connection to the parties in the case, but only Oregon is ideal from both a liability and damages perspective. Washington State law does not allow for punitive damages. BC compensatory damages are subject to the cap on non-economic claims, as controlled by the Andrews trilogy, as well as conservative judges. Moreover, BC products liability claims are subject to a negligence standard as opposed to the more favourable strict liability theory available in the US. Most importantly, neither Washington nor BC have personal jurisdiction over one of the more critical parties to the case—the Oregon State Department of Transportation.

Let’s examine what we know so far about the crash. Nine people killed. 39 others injured. A BC bus company operating a tour through Southern California on a 1998 Prevost bus not equipped with seatbelts. The driver allegedly driving for longer periods than he was allowed to drive under the law. Whether or not that is so, his actions in steering the bus surely imply that he was negligent, and therefore, a foregone conclusion that the driver’s insurance will be exhausted. It will be further alleged that the bus company is vicariously liable for the negligence of its employee, and perhaps a further conclusion that its fleet of buses and the insurance umbrella covering that fleet will be exhausted.

So imagine you’re one of the people injured in this crash, incurring medical expenses, unable to work, and interested in receiving compensation for your losses. How many other claims will you be competing with? Even with $10 million in company insurance, how much will that leave per claim? And consider that nine people were killed. Unlike in BC, wrongful death claims in Oregon allow the decedent’s estate to recover the decedent’s entire future lifetime earnings, subtracting the amount they would have consumed—in most cases, this represents at least a million dollar claim. For a high wage earner, it could be four times that. It should be obvious that there will be insufficient insurance and assets to satisfy all of the injury and death claims.

Or will there? Not to say that the driver and the bus company aren’t to blame, but how does a bus roll down a steep embankment on an icy stretch of highway known as “Deadman’s Pass”? Presumably, the State of Oregon is aware that this highway becomes treacherous in the winter, that buses and cars tend to fishtail, that it’s reasonably foreseeable that a vehicle will hit a guardrail there. (Why was a guardrail there in the first place?) So why wasn’t a guardrail erected by the State that was fit for its intended purpose? Viewed with these questions in mind, this tragedy was preventable. And the Oregon Department of Transportation cannot be sued in Washington, nor in BC. Victims seeking compensation would be wise to sue in Oregon. I will be doing so for my BC clients.

I guess we’ll wait to see what the Ontario Court says about Mr. Moore’s claim. But by my way of thinking, that whole incident was precipitated by the NHL’s fighting rules, which discouraged retaliation in the immediate aftermath of the Naslund hit during the clubs’ previous meeting. Evaluating that case before it was filed, one would learn that those rules were promulgated in New York, where the NHL “resides”, a jurisdiction which allows for punitive damages and has no cap on pain and suffering. Mr. Moore sued Bertuzzi, Crawford, Burke and Orca Bay in Ontario, a jurisdiction with a spurious connection to any of these defendants. Why not add the NHL and sue in New York Federal Court? Unfortunately, doing so now might be less advantageous, since Mr. Moore could be seen as a forum shopper.