Most people assume that the only way to get compensated for injuries sustained in an auto accident is to sue the driver responsible. This is not true. An accident victim must first turn to the provincial Statutory Accident Benefits scheme in order to receive certain benefits that are defined by regulation, the Statutory Accident Benefits Schedule (SABS) under Ontario’s Insurance Act. You also have the right to sue the driver responsible for your accident to help you recover any damages that aren’t covered by the statutory scheme. This is why your lawyer will talk about two claims: the accident benefits claim (against your own insurance company) and the tort claim (against the at-fault driver).
In Ontario you are entitled to Statutory Accident Benefits through your own insurer (no fault benefits), regardless of whether you were at-fault for the accident. These benefits are provided right away, if you qualify, and are for such things as medical and rehabilitation expenses, attendant care expenses and income replacement benefits. You may also be entitled to other benefits such as housekeeping and home maintenance, if you have purchased optional coverage. If you end up in a dispute with your insurance company regarding the benefits you that you are entitled to, you will have to resolve the dispute through the Financial Services Commission and/or the courts.
You do not need to be an occupant of a motor vehicle to qualify for statutory accident benefits. If you are a pedestrian or cyclist who has been injured in an accident involving a motor vehicle, you can claim accident benefits through your own auto insurance policy. Even if you do not have your own insurance coverage, you may still be eligible for accident benefits through another insurer or by a fund set up by the Ontario government. See our article on “Pedestrian versus Automobile – Have you been a victim?” for more details.
You may wrongly assume that your own insurance company is your friend. This is not true. Insurers are corporations who encourage their employees to pay less in claims so that they can make more money. An experienced personal injury lawyer will look out for you. At Santucci Personal Injury Law we will advise you on deadlines, whether you are entitled to accident benefits, whether the recommended treatment plans are reasonable and necessary, whether the amounts being paid are correct, and whether you should be disputing any decisions of your own insurance company. We can also help you decide whether you need to bring a formal lawsuit against your own insurance company. One year after the date of the accident, the accident benefit insurer may approach you about settling your accident benefits claim. We can help you decide if it is appropriate to consider a settlement of accident benefits and also assist in negotiating an appropriate settlement amount.
Accident victims often will not make an accident benefits claim for fear that their insurance premiums will go up. Our insurance industry is set up so that everyone who has insurance pays for accident benefits coverage through their premiums. If you were not at fault for the accident, your premium should not be affected by making an accident benefits claim. Your premiums may go up if you were at fault for the accident, however this will happen whether or not you make an accident benefits claim.
Often people assume that their accident benefits will automatically start after an accident, but this is not the case. You must notify your own insurance company within 7 days if you wish to apply for accident benefits. Your insurance company will give you the forms you need to apply. This applies even if you were a passenger at the time (you must notify your own insurance company, not the company that insures the car you were traveling in). You must then file the completed application forms within 30 days after receiving them from your insurance company.
There are certain circumstances that disqualify you from receiving accident benefits. For instance, if you were driving when you knew or should have known that you did not have valid insurance, if you were driving while impaired or refused to give a breath sample, if you were driving a vehicle when you knew or should have known you were driving without the owner’s consent, if you were a passenger who knew or should have known that the driver did not have the owner’s consent to drive the vehicle, if you were using an automobile in connection with criminal activity, or if you knowingly misrepresented information when you applied for your auto insurance.
If you have a dispute with your insurance company over accident benefits that you are entitled to, you are able to bring a lawsuit within two years from the time your insurance company refused to pay the benefit. However, before a lawsuit can be commenced, you must participate in mediation through the Financial Services Commission of Ontario. If the matter is not resolved at mediation, then you are able to start a lawsuit or continue the dispute through arbitration at the Financial Services Commission of Ontario. Your personal injury lawyer can advise you on the best route for your case.
Your immediate family members may be entitled to receive accident benefits if they qualify, even if they were not involved in the accident. These benefits are paid to cover treatment for family members who suffer psychological or mental injury as a result of your accident. Often a spouse or parent will need counseling to help them deal with the emotional issues arising out of the injuries that their loved one has sustained or the support they are required to provide to them.
If you have private insurance through your employer or otherwise, you must look to them for payment of benefits first. The statutory accident benefits will then cover the qualifying expenses which are not covered by your private plan or they will pay the balance if your plan only pays for part of the expense.
Do YOU have an accident benefits question? Contact Santucci Personal Injury Law to get answers.
To obtain a free consultation, please contact our office by e-mail or call (905) 667-1987.
Patricia Santucci is a personal injury lawyer born and raised in Hamilton, Ontario. She holds several degrees having attended King’s College at the University of Western Ontario, McMaster University, earned a Master of Arts degree at the University of Windsor and an Ontario Teaching Degree from Teacher’s College as well as her Ontario Teaching Certificate. After graduating from the University of Alberta law school she was called to the bar in 2000. You can find Patricia on Google+ and LinkedIn or directly through this website
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