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Limitation Period in Car Accidents

When a big automobile insurance company based in Indiana wants to save money, it looks north to see if it can pull the rug out from under any injured people in Toronto, Kingston or Ottawa.

Limitation periods are one of its favourite ways to do that.

A limitation period is a time limit set by law. It is the maximum time you have to start your claim in the court. Most limitation periods in Ontario are two years from the date you know or ought to know that you have the right to sue. If you’re not sure about a limitation period, you should be talking to an injury lawyer. If you miss your limitation period, your claim is dead.

Here’s an example of how insurance companies try to use limitation periods against you.

5 years ago, a drunk driver, running from police, smashed into the rear of a car waiting for a GO Train to pass in Milton. It pushed the car and the lovely couple sitting in it onto the tracks. The momentum of the drunk driver’s car carried it across the tracks where it crashed into a car waiting on the other side for the train to pass. The young lady in the other car was badly hurt.

Moments later, a GO Train passed through the intersection, obliterating the elderly couple’s car. They were killed instantly.

The young woman in the car, struggling with her own injuries, watched it all as it was about to happen, the approaching train, the elderly couple trapped in their car on the tracks; they were helpless, she was helpless. The moments formed like giant tear drops that refused to fall. And then it was over.

The young woman watched in stunned disbelief as the drunk driver got out of his car, his pants down around his ankles.

These moments continue to haunt her all these years later.

She works. She tries to get by. Some days she even puts up a good front.

The law in Ontario for people injured in car accidents is that they can only recover compensation for pain and suffering if they suffer a serious and permanent impairment of an important bodily function. It’s not always clear whether that’s the case for people with physical injuries. It can be even harder to determine for individuals suffering from psychological injury.

Can there be any doubt that this young woman suffered psychological injury? We say no.

But is it permanent? Is it serious?

These are the questions that only time can answer. It’s now 5 years later. For this young woman, the answer is probably yes at this point.

State Farm is her car insurance company. Her policy contains a provision, as yours probably does, called the Family Protection Endorsement. It protects her against underinsured drivers.

The drunk driver’s insurance company refuses to provide him with full coverage because he was engaged in a criminal activity at the time of the accident. He only has liability coverage of $200,000. As a result, he is an underinsured driver.

Because he is an underinsured driver, the young woman is allowed to claim against her own insurer, State Farm, for compensation.

State Farm says that she must do that within a year of the time when she knew or ought to have known that her claim was worth more than $200,000. It recently asked a judge in Guelph to dismiss her claim, saying she had missed the limitation period.

She’s still not better. She may never be better. It wasn’t until August of 2011 that a doctor first said the young lady’s problems might be permanent. It wasn’t until that point in time that she stood any chance of winning her lawsuit. That’s when her limitation period started running. She had already sued State Farm by that point.

On these facts, one would hope that the insurance companies involved would do what they could to help the injured young woman and the surviving family members of the elderly couple to settle their claims and move on. Instead of working to ensure that she is properly compensated, State Farm spent thousands of dollars on a lawyer to try to knock the young lady’s claim out.

They failed. The judge dismissed State Farm’s motion.

Limitation periods are important. They force people to act on their rights. For the person who is at fault, a limitation period brings certainty. It allows the at-fault person to move on at a fixed point following an accident. Imagine the Sword of Damocles hanging over your head. No one wants to live like that forever, not knowing when it might fall.

But a large insurance company like State Farm doesn’t lie awake at night worried that it might get sued. It’s in the business of getting sued. So when it tries to use a limitation period like this one, a limitation period that doesn’t even start to run until you know your injury is permanent, is it in the same position as the at-fault driver lying awake at night wondering if she’ll be sued? No.

The next time you read a story about people abusing the legal system, ask yourself who they’re talking about. Is it the innocent accident victim in Kingston who was rear-ended by an aggressive driver? The woman who just lost her husband in Ottawa when a distracted driver ran him down? The young lady in Toronto who watched a drunk kill an elderly couple and then get out of his car with his pants down?

Or is it the large insurance company focused more on profit than people?

Contact Bergeron | Clifford LLP

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