This edition of the Toronto Injury Lawyer Blog is from the mind of our founder and directing lawyer; Brian Goldfinger.
Brian spends a lot of time of the phone speaking with prospective clients; existing clients; insurance adjusters; doctors and opposing lawyers. But most of Brian’s time on the phone is spent answering questions from new and existing clients.
One of the most commonly asked questions of Brian Goldfinger is “how long will make case take to settle?”
Brian hears this question in a variety of cases spanning from catastrophic car accident cases; slip and fall cases; motorcycle accident cases. But it seems like this question is most frequently asked in the context of long term disability cases. I don’t know why this is. It just is (if that makes any sense).
In the context of a long term disability case; keep this in the back of your mind. If your long term disability insurer liked your case; and believed that you had a claim they would have paid you by now and you wouldn’t need a lawyer. This statement is half true. It’s half true because even if you have a meritorious long term disability claim, some insurers will just deny you for the sake of denying you because they would rather keep their money instead of paying you out in the hopes that you never retain a personal injury lawyer to fight your long term disability case. For many long term disability insurers; denying claims only to have them litigated is part of their business model. This is why they have an army of in house lawyers at their disposal. To fight long term disability cases like yours at minimal cost. Farming the long term disability work to outside counsel became too expensive. Long Term Disability insurers found it far more efficient and cost effective to hire and grow their in house legal teams to fight long term disability claims. The in house legal departments at Sun Life Insurance, Desjardins, Manulife and Great West Life have all (from my perspective at least) appear to have grown in size and scope of practice.
So why is your case taking so long to resolve? Here are a few factors:
- The insurance company doesn’t like you or your case. Not every case is a winner that the insurance company is willing to settle or which will succeed at trial. The insurer can have a favourable medical report, favourable medical evidence or favourable surveillance which can severely compromise a Plaintiff’s case. In those cases, the insurer will believe that they have the upper hand and have no interest in getting the case resolved other than through a trial. That will really slow things down. That’s the cold hard truth.
- Civil litigation in Ontario is slow…..The Supreme Court of Canada decision in R. v. Jordan has drained resources from the Civil Justice system and re-directed those already scare court resources to the Criminal Justice system. This has made an already slow civil system for litigating long term disability and other personal injury cases even slower. If Brian Goldfinger were to set your long term disability case down for Trial TODAY in Toronto, you’re probably looking at another 2 years before you have an actual trial. If the trial is scheduled for 10+ days (long list), that wait time is even longer. It’s not unusual for long term disability and other personal injury cases to eat in to more than 2 weeks of Court time. This puts the advantage squarely in the insurer’s hands as they have they benefit of time on their side. You don’t because if you aren’t working, you have bills to pay which aren’t getting paid. The insurer has the luxury of waiting you out to create financial desperation on your end hoping to influence you to settle for cents on the dollar because of your desperation. Not fair; but this is the reality of long term disability litigation in Ontario. Can you blame them? If you were on the other side trying to protect your company’s interests wouldn’t you do the same….
- Insurance companies aren’t in the business of throwing out money to pay out on claims gratuitously. They aren’t stupid. They want to get all of the evidence they can (in the form of medical records, employment records etc.) to assess your case. All of this record gathering takes time.
- Even when all of the records are gathered, that just leads to more records being requested; and subsequently gathered. This dance takes time. See #3 above.
- The lawyer for the long term disability insurer may want to meet with you in person for an Examination for Discovery. Getting lawyers to agree to a discovery date is much like herding cats. Not easy given everyone’s busy schedules. Those discoveries will lead to undertakings for more records. Getting those records takes time. See #3 and #4 above.
- There are some instances where setting a case early for “quick and early money” isn’t a good idea for a Plaintiff. If a young Plaintiff can’t work for the rest of his/her life; but they aren only being paid for 2.5 years of future benefits; then it’s not a wise idea to accept that early offer being presented by the insurer. Sometimes it’s best to wait for a better offer, which may present itself later on in the litigation process.
- Sometimes cases aren’t reported or reserved properly. If the insurer only sets a reserve of $50,000 on a case which should be valued at $200,000; then both the Plaintiff and the insurer will have a problem. Unfortunately for the insurer, sometimes it’s not as easy as increasing the limit with a simply stroke of the key. There are protocols, meetings, reports etc. which all take time. Something so simple as re-setting the reserve isn’t as easy as you would expect and can be an administrative nightmare for the people on the other side. This too can contribute to delay to getting the claimant the results which s/he deserves. The same applies when a junior or inexperienced lawyer does a poor job reporting his/her impressions from examination for discovery to his/her principal or client. That discovery report can be completely off, and can hamper settlement prospects.
