Car Accident – NOW WHAT?

by Samfiru Tumarkin


Saturday, June 25th, 2016 at 4:33 am


Most of us have been in a car accident at one time or another. Perhaps it was our fault; perhaps it wasn’t. Some people panic; others don’t. Often the seriousness of the accident dictates our level of anxiety and complexity of the situation. As an insurance lawyer people ask me every day for advice on this topic. The most common questions relate to compensation for injuries and damage to vehicles. In this short article I would like to give you practical advice about how to deal both with injuries and property damage in the context of car accidents and insurance.

Injuries from car accidents can range from minor to catastrophic. It is important to go to your doctor, a walk-in clinic or hospital as soon as possible after an accident if you suspect injury. Often medication and rehabilitation will be prescribed. You will be entitled to certain benefits from your automobile insurance company. These are called “accident benefits” and include income replacement benefits in the event that you can’t work for a period of time, as well as rehabilitative treatments such as massage, chiropractic, physiotherapy, etc. There are other benefits you may be entitled to. These accident benefits are also called “no fault” benefits because you are entitled to receive them even if the accident was your fault.

Car Accident Insurance Divider 1

If you were not at fault for the accident and your injuries are more than minor (i.e. they interfere with your ability to earn income for a prolonged period of time or they interfere with the majority of your day to day activities), you will be entitled to compensation for pain and suffering from the automobile insurer of the at-fault party. This is often a much larger claim and must be made within 2 years of the accident.

Property damage due to a car accident is very common. Your car may have sustained a little damage or a lot. I get many calls from people who are upset that their insurance company has decided to repair their car rather than write it off. Unfortunately the Ontario Automobile Policy (OAP1) gives the insurance company the right to choose if to repair or replace the vehicle (see ss. 5.4.3 and 6.6 of the OAP1). If the insurer decides to write off the car, you can often negotiate the settlement. I recommend getting comparables from Auto Trader and other publications/websites to show the insurance company that your car is worth more than what they are offering. Remember, insurers are in the business of saving as much money as possible (i.e. paying as little as possible on claims).

If the property damage is minor, you may be tempted to negotiate with the at-fault party for them to pay for your repair. Remember that not reporting property damage to your vehicle after an accident to your insurer could result in them rejecting your claim if you choose to make it at a later time. This is especially problematic if you’ve made such an agreement with the at-fault party and s/he later reneges and doesn’t want to pay. Now you’re stuck and the insurer may reject your claim.

While I am not an insurance broker and can’t provide professional advice on the effects of accidents on premiums, I have never seen someone premiums go up if they’ve made a claim when the accident was clearly someone else’s fault.

Car Accident Insurance Divider 2

I’ve also been asked, “can I sue the other driver for the damage caused to my vehicle?” The answer is no. Section 263 of the Insurance Act prohibits you from suing the at-fault driver for your car’s damage. You have to go to your insurance company and they will decide if to repair or replace your car. Given this twist in the law, you should be careful making deals with whoever caused the accident for them to repair your car. If they renege, you can’t sue them and you could possibly cause your insurance company to reject your claim if you do not report the accident to them on time.

I am also frequently asked what recourse people have if they are not getting anywhere with their automobile insurer in cases of vehicle theft, damage or write off. Imagine your car was stolen, or perhaps it was involved in an accident and must be written off, and the insurer just drags its feet. What can you do? You can file a claim (sue your insurer) under your automobile policy. Remember, you are paying premiums for peace of mind in the event that you need to make a claim. You’ve honoured your obligations by paying those premiums religiously. If they are not doing their part, you have a right to sue them for the property damage or loss. Remember that you have just one year from the date of the loss to file such a claim. Unfortunately I speak with people almost weekly who do not know this and have let the one year pass. Once that happens, you can’t make a claim against your insurer for property damage or loss.

To recap then, always get medical attention if you suspect injury after a car accident. You may be entitled to accident benefits from your auto insurer and you may also be entitled to make a claim for compensation for pain and suffering from whoever was at-fault for the accident (i.e. their insurance company). When dealing with damage to your car, your insurer has discretion if to repair or write it off. If it’s the latter that they choose, negotiate. You can’t sue the at-fault party for property damage so make sure you report it to your insurer. You won’t be able to sue the at-fault party even if s/he has agreed to cover the repair costs. Lastly, contact me directly if you have questions and need help. Knowledge is power. It’s as simple as that.

Can you sue the other driver for the damage caused to your vehicle? The answer is no. Click To Tweet

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