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Even if you’re ‘at fault’ you may still have a claim

I write most of my postings from the victim perspective, because I am a lawyer who never acts for the insurance company. I act for those who suffer injuries in car crashes, not for those who cause the crashes.

This week, I am taking the opposite perspective.

I wish you no ill will if you have caused a crash. We all make mistakes.

In fact, I think I would have some difficulty with my line of work if you had to personally pay the fair compensation that I claim on behalf of my clients.

Fortunately, I don’t have to face that difficulty. Your liability insurance company, which continues to make healthy profits, is required to pay any settlement or court judgment against you.

All you have to do is report the incident to your insurance company. If you are served with legal papers, you drop them off at your insurance company’s offices. Defence lawyers are appointed on your behalf. You might not have anything to do with the claim after dropping off the papers.

You are looked after and need not have any concern about suffering financial consequences from having caused someone else injury. What about your losses, though? You are just as likely to have suffered an injury. Your vehicle has also been damaged.

Hopefully, you have purchased collision insurance. If so, an insurance company is responsible for paying to repair or replace your vehicle. You will be responsible only for the deductible.

Fault doesn’t enter into your entitlement to collision insurance coverage. Sure, driving drunk and other horrendous conduct will invalidate your insurance, but otherwise the insurance company which sold you collision insurance is responsible for paying for your vehicle damage regardless of who was at fault in the crash.

Then there are the financial losses associated with your injuries.

With very few exceptions, everyone in British Columbia is entitled to make a claim against ICBC for some very basic disability and medical insurance benefits. Again, these benefits are available to you regardless of fault.

You are entitled to income losses calculated as 75 per cent of your pre-crash income, to a maximum of $300 per week. You are also entitled to reimbursement for many medical and rehabilitation expenses.

Another no-fault insurance source available to you as compensation for income loss is Employment Insurance benefits, which doesn’t provide full, but a healthy chunk of your pre-crash earnings for up to 15 weeks.

In addition, some of us, through our employment or privately, have purchased insurance policies that are designed to kick in when we are injured. Again, like collision insurance, these insurance companies are responsible to provide you with insurance benefits regardless of who was at fault in the crash.

One example of such insurance is disability insurance. With disability insurance, the insurance company agrees to provide you with a certain monthly income if you become disabled from working.

Another example is medical insurance, providing coverage for all or part of your treatment and medication expenses, depending on the nature of your policy. Whether it is due to a car crash or illness, the wisdom of private disability and medical insurance certainly becomes apparent when a loss occurs.

While there may be more than one source of insurance funding available to you for income losses and medical expenses arising from crash injuries, there is no such insurance coverage to compensate you for your pain and suffering and loss of enjoyment of life.

There is no insurance product available, that I am aware of, to insure against pain and suffering. It is only the innocent victim of a crash who is entitled to compensation for that “loss” in our legal system.

Please be clear, though, that you need not be 100 per cent innocent in a crash to be entitled to that compensation. You are entitled to compensation for all of your losses, including pain and suffering, to the percentage of the extent to which the other driver might be found to be at fault.

Like you, the other driver is insured against your claim, and in British Columbia, that insurance is provided by exactly the same insurance company that has insured you.

Even if you were mostly, but not entirely, at fault, you have a claim. You’re wise to get legal advice regarding your rights.

Published March 23, 2008 in the Kelowna Capital News