A LITIGATION GUIDELINE FOR INSURED PERSONS
Being named as a defendant in a personal injury action can be intimidating. You will find below some information that will explain the process and what our role is as your lawyer.
When a claim is commenced as a result of a motor vehicle accident, your insurance company retains a lawyer to defend the action on your behalf. In most cases, your insurance policy limits are $1 million. In certain cases, the Statement of Claim claims damages in excess of those policy limits. What that means is that if the plaintiff’s claims exceed the limits of $1 million, you may be personally liable for anything in excess of those limits. In such a circumstance, we will notify you and advise you that you may want to consult your own lawyer. The vast majority of cases settle for (or otherwise resolve for) well within the policy limits. If we have reason to believe that the claim will likely exceed your limits, we will advise you.
Once we are retained by your insurance company, we will deliver a Statement of Defence on your behalf. The next step in the process is document production. We are required to deliver an Affidavit of Documents listing all of the documents in your possession that relate to the action. The Affidavit of Documents must be sworn by you and served on the other side. Someone from our office will contact you to make arrangements for you to come to our office and sign your Affidavit.
The next major step is examinations for discovery. These will be arranged by our office and you will receive a letter from us notifying you of the date and location. We will meet with you ahead of time to prepare you for it and give you an idea of the types of questions that are likely to be asked. The purposes of examinations for discovery are:
1. To learn the facts, strengths and weaknesses of each party’s case;
2. To elicit admissions in order to dispense with the need for formal proof at trial;
3. To assess the parties’ credibility.
At the examination, each party is questioned under oath by the lawyer for the opposite side, and a court reporter records the questions and answers. Your lawyer will be present with you during your examination by counsel for the plaintiff.
Following the examinations for discovery, and once all documents have been exchanged, the parties will generally make arrangements to meet to try to settle the case. More than 99% of all claims settle without going to trial so it is likely that your claim will fall within that percentage. You will not be involved in the settlement process, as your insurance company essentially steps into your shoes during this stage of the action. We will advise you if and when the claim settles.
Occasionally, a file does not settle and proceeds to trial. If that happens, you will be called to testify at the trial with respect to the circumstances of the accident. We will notify you well in advance of the trial and meet with you to prepare for it.