How a Failure to Report your Accident and Injury may result in Forfeiture of your Claim

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If you or someone you love has been injured in a car accident, along with seeking immediate medical attention, it is important to report the incident to the police and in writing to your insurance provider.

It is not unusual for injuries to later develop complications or worsen over time. A medical diagnosis and formal report of the accident are key evidence if you wish to make a claim for compensation.

Whether you were involved in a collision with another party, a hit and run accident or a single car collision, there are regulations and legal reporting requirements that can affect your eligibility for injury compensation. Failure to properly report a car accident can lead to very costly repercussions, as Ms. Monico learned in a 2015 action against her insurer.

Case example

Ms. Monico was allegedly involved in a car accident on April 10, 2010. Ms. Monico claimed that an unidentified vehicle, which had stopped in front of her at a red light, suddenly reversed when the light turned green and struck her car before fleeing the scene.

At the time of the incident, Ms. Monico was receiving benefits from her insurer State Farm, in connection to a previous accident that occurred in February 2009. This earlier accident resulted in injuries to Ms. Monico's neck and back; injuries she claimed were exacerbated as a result of the incident on April 10.

According to Ms. Monico, she called the office of her insurance broker to inform him of the accident. She did not speak to her broker, but instead spoke to a female employee with whom Ms. Monico claims she had previous dealings and who she allegedly told that she had neck and back pain.

Ms. Monico stated that the woman advised her that, as the accident resulted in no damage to her car and the benefits she was already receiving from the previous accident would continue, she was not required to do anything further with regard to this latest incident. Ms. Monico did not report the 2010 accident to the police or the vehicle collision centre, nor did she make any notes of the conversation she allegedly had with the insurance employee.

As a result, when Ms. Monico later attempted to claim for unidentified motorist coverage from State Farm, she was denied, which prompted her to file a civil suit against her insurer.

In Monico v State Farm Mutual Automobile Insurance, 2015, State Farm sought a summary judgement to dismiss the claim on the grounds that it is statute-barred, due to Ms. Monico's failure to comply with statutory conditions of The Insurance Act and the Uninsured Automobile Coverage.

The specific sections of The Insurance Act relevant to this case deal with the notice and disclosure requirements claimants are obligated to follow, prior to starting an action for losses resulting from injuries received in a motor vehicle accident.

The requirements include:

  • the injured person must have applied for Statutory Accident Benefits
  • a written notice of intent to start the action must be served within 120 days of the incident
  • the defendant (insurer) must be provided with information required by regulation within the time period prescribed
  • the injured person must undergo medical examinations (paid for by the defendant or insurer) if they request them within 90 days after the notice is sent
  • a statutory declaration must be provided to the defendant (insurer), describing the incident and nature of the claim being made, if requested
  • provide evidence of the injured person's identity, if requested

If someone fails to comply with these reporting requirements, they may commence an action for compensation but the Courts will take their non-compliance into consideration when awarding costs.

Uninsured Automobile Coverage under the Insurance Act pertains to accidents involving unidentified automobiles, such as hit and run accidents. In such cases, the injured person must comply with the following reporting requirements.

  • report the accident to a police officer, peace officer or judicial officer within 24 hours of the incident.
  • provide a written statement to one's insurer within 30 days of the accident, stating whether or not the identity of the driver of the unidentified vehicle could be established and whether anyone was injured or killed in the collision.
  • the injured person under contract must make their vehicle available for inspection by their insurer, if requested.

Failure on an individual's part to comply with any of these requirements may result in a penalty and the forfeiture of any compensation for damages, unless the Court decides to grant financial relief.

Ms. Monico did not comply with most of the requirements of both statutes. In particular, she did not report the accident to law enforcement; she did not provide State Farm with a written statement of the car accident; and her vehicle was never inspected for damage.

In Monico v State Farm Mutual Automobile Insurance, the trial judge was tasked with deciding whether or not Ms. Monico was entitled to relief from forfeiture. Relief from forfeiture is a discretionary remedy that is intended to prevent hardship for individuals who did not comply with a regulation precedent; however, leniency towards strict compliance with precedents will generally not be given if it results in prejudice against the other party (in this case, the State Farm Insurance).

Working under the assumption that Ms. Monico was being truthful about the alleged accident, Justice Chapnik referenced the three principles established in the Court of Appeal decision Kozel v. Personal Insurance Co. for his decision on whether or not Ms. Monico deserved relief. The three principles include: the conduct of the applicant, the gravity or severity of the breach and finally, the disparity between the value that was forfeited due to the breach and the damage caused by said breach.

With regard to the first principle, which focuses on the reasonableness of the applicant's behavior, Justice Chapnik found that under the circumstances, Ms. Monico's actions were not reasonable. Given that she had experienced a prior accident, it was not reasonable that she would be unaware of basic obligations, such as reporting the incident to the police.

Also unreasonable was the fact that Ms. Monico made no record of the conversation she had with the insurance employee, nor did she follow up with a call to her broker to confirm her reporting obligations for the 2010 accident.

In terms of the severity of Ms. Monico's breach, Justice Chapnik sided with State Farm, noting the importance of the insurer being able to act quickly, particularly in an uninsured motor vehicle claim, such as this one. The insurer must be able to carry on their own investigation to find out whether or not the individual responsible for the accident can be located. Because Ms. Monico did not formally report the accident immediately, State Farm was deprived of the ability to conduct an investigation and potentially make a claim against the 'at fault' driver.

Ms. Monico also did not provide State Farm with a written notification of her claim before issuing the legal action for damages. These facts brought Justice Chapnik to the conclusion that her breach was substantial.

Finally, with regards to the third principle, Justice Chapnik rejected the plaintiff's argument that a complete dismissal of the claim would be disproportionate to Ms. Monico's breach. He again acknowledged the prejudice against State Farm in not having the time and ability to investigate the circumstances of the accident, interview witnesses, seek medical records, examine the vehicle and so on, as Ms. Monico never gave them that opportunity.

Justice Chapnik referenced the Court of Appeal of Ontario decision in July et al. v. Neal, which discussed the importance of the reporting requirements of an accident, not only to permit investigation of the circumstances of the incident, but also to prepare for the possibility of an insurer being sued years later, without any prior knowledge of the accident, which is essentially what happened between Ms. Monico and State Farm.

At the December 2014 cross-examination, Ms. Monico herself was unable to recall details of her car accident that could help State Farm in an investigation, including how far away the other vehicle was before they backed up, what was said by her passengers during or after the collision, the gender of the driver, and whether there was more than one car occupant.

In consideration of all the evidence, Justice Chapnik believed there was no genuine issue requiring a trial; he ruled in favor of the defense and granted summary judgement to dismiss the claim.

This case underlines the importance of getting anything in writing that may potentially affect your legal rights or finances. It is not sufficient to receive an oral declaration over the phone about your legal or financial obligations. The person to whom you are speaking may not have the authority to make a particular statement; there may be changes in circumstances that alter the speaker's inclination to make good on their promise; or they may simply be mistaken and the information you receive may be inaccurate.

In Ms. Monico's case, she was not aware of the status of the employee from whom she allegedly received advise; the woman may have been a receptionist for the insurance office.

In addition to formally reporting an accident to your insurance company, if you are injured in a car accident, you will need to make a decision on whether to file an accident benefit claim and/or sue the 'at fault' driver for damages. An early consultation with a personal injury lawyer can provide you with sound legal counsel on your best options for receiving optimal compensation to ease your financial and emotional burden if you have severe and permanent injuries.

At Gluckstein Personal Injury Lawyers, we are here to navigate the required regulations and applications so that you can fully concentrate on your recovery.

If you or someone you love has been injured in a car accident, please do not hesitate to call an experienced car accident lawyer at Gluckstein Lawyers for a free initial consultation on your case.  


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