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What Happens if I Need to Sue a Negligent Driver and My Disability Insurer Following a Car Accident?

A serious motor vehicle accident can leave you unable to return to work and thus earn a living. In such cases you may be eligible for benefits under a long-term disability insurance policy, as well as damages from the negligent driver in a separate tort (personal injury) claim. Of course, either the negligent driver or your insurance carrier–or both–may dispute the extent of your injuries. If that happens, do you have to pursue duplicate litigation against both parties, or is it possible to consolidate matters into a single trial?

Kaur v. Blue Cross: One Accident, Two Lawsuits

Recently, an Ontario Superior Court justice confronted this precise scenario. These cases involved a plaintiff who was injured in a 2012 car accident. As a result of her injuries, the plaintiff said she was medically unable to work, so she applied for long-term disability benefits under a policy issued her by Blue Cross Life Insurance Company of Canada. The plaintiff also filed a personal injury lawsuit against the other driver in the car accident, alleging his negligence was responsible for her injuries.

The personal injury defendant denied liability. Separately, Blue Cross denied the plaintiff’s disability benefits claim. This led the plaintiff to file a separate lawsuit against the insurer.

The plaintiff asked the Superior Court to consolidate both claims–that is, to hear them together. The personal injury defendant did not object to this. Blue Cross did.

Under the rules governing civil cases in Ontario courts, a judge may consolidate two or more pending cases under any of the following circumstances:

  • The cases share a common “question of law or fact”;
  • The relief sought by the plaintiff “arises out of the same transaction” or series of events; or
  • The judge determines there is “any other reason” to justify hearing the cases together.

If the Court grants consolidation, it may be in the form of conducting one trial for both cases simultaneously or “one immediately after the other.”

Here, the plaintiff argued that both her personal injury and disability claims arose from the same event–the 2012 car accident. Both cases involved a common “question of fact,” i.e., the nature and extent of her injuries. It would therefore impose an unnecessary cost and burden to present the same medical evidence twice in separate trials.

In response, Blue Cross denied there were any common factual or legal questions. For instance, whether or not the personal injury defendant was liable for the accident had no bearing on the issue of the insurance company’s liability under a disability policy. In any event, Blue Cross maintained a consolidated trial would “prejudice” its interests.

Blue Cross also cited another provision of the Ontario court rules that prohibits a party who has set a trial date in a case from “initiating or continuing” any motion without prior leave of the court. In this situation, both cases were previously set down for trial on separate dates, but they were removed from the court’s calendar after the plaintiff’s former lawyer failed to make a required court appearance.

Judge Cites Critical Factual Dispute, Potential Costs to Plaintiff of Litigating Twice

Justice Steve Coroza of the Ontario Superior Court of Justice ultimately granted the plaintiff’s motion to consolidate, overriding Blue Cross’ objections. In a May 28 order, Justice Coroza first disposed of Blue Cross’s argument regarding the timing of the plaintiff’s motion. The judge said he preferred a “flexible approach” to granting leave and would “consider all of the circumstances of the matter” before making a decision. While he said there was “merit” to Blue Cross pointing out the plaintiff’s delay in bringing her consolidation motion, as well as the “peculiar” circumstances of her other lawyer’s non-appearance, the delay was not “unreasonable,” particularly since neither case had been rescheduled for trial.

Regarding the merits of the plaintiff’s request for consolidation, Justice Coroza noted the purpose of the rule was to “avoid multiplicity of proceedings, promote expeditious and inexpensive determination of disputes, and avoid inconsistent judicial findings.” Here, it was clear that both the tort and insurance cases revolve around the “critical issue” of the plaintiff’s injuries in the car accident. While the burden of proof in each case may be different, the judge said, the plaintiff must essentially present the same evidence. That is sufficient to create a “question of fact in common.”

Consolidation also represents a significant cost savings to the plaintiff. For example, Justice Coroza pointed out that “[r]etaining medical doctors and experts is expensive,” and such witnesses are “notoriously difficult” to schedule for one trial, much less two. While it would cost the plaintiff significantly more to manage two trials as opposed to one, the costs for Blue Cross would be the same either way.

Finally, Justice Coroza firmly rejected Blue Cross’ argument that consolidated proceedings would be too “difficult for a judge to manage.” To the contrary, the judge said it would not be that difficult to “create a trial management schedule” that ensures things moved along smoothly. Indeed, “managing trials with different tests, different counsel, and different parties is standard fare for most trial judges,” so handling a pair of “standard civil actions related to a motor vehicle accident” should not pose much of a logistical challenge.

Speak With a Toronto Car Accident Lawyer Today

Remember, in Ontario courts an unsuccessful plaintiff is liable for the defendants’ legal costs in addition to their own expenses in connection with their case. This means that when you are faced with multiple defendants in related actions, it is often in your best interest to seek consolidation. As the opinion in the case above illustrates, judges are favourable to such requests when there are clearly common factual or legal questions involved.

If you have been in a car accident and have a claim against the negligent driver as well as your own insurance company, you may greatly benefit from working with an Ontario personal injury lawyer, who may be able to guide you the complexities of provincial law. Contact the Preszler Injury Lawyers to schedule a free, no-obligation consultation with one of our lawyers today.


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