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You were injured in a car accident in the USA, what should you do?

You were injured in a car accident in the USA, what should you do?

By:

Posted January 3, 2018

Canadians travel to the United States regularly and in the winter months “snowbirds” flock to the southern states in their cars. Seldom do these motorists consider what it would mean if they were injured in a car accident during their trip. Each year, many Canadians are involved in car accidents while travelling in the US. Bringing a claim for compensation after a US car accident can involve complex issues such as where a civil action should be started and which jurisdiction’s laws will apply.

If you are from Ontario and are involved in an accident in the United States, you may be able to commence an action in Ontario, in the state in which the accident occurred, or both. Your right to do so will depend upon several factors, including what insurance is available to the parties involved and the particular facts of each case.

How Jurisdiction is Determined in Ontario

Determining whether an Ontario Court has jurisdiction to hear your action involves a two-part test. First, the Court will determine if there are any “presumptive connecting factors” linking the lawsuit to Ontario. If you wish to have your case heard in Ontario, it is your responsibility to demonstrate the existence of one or more of these connecting factors.

The Supreme Court of Canada established the following four presumptive connecting factors:

1.     The wrongful act was committed in the province;

2.     The defendant lives in or is a resident of the province;

3.     The defendant carries on business in the province; and,

4.     A contract connected with the dispute was made in the province.

If Ontario is found to have jurisdiction over an action, the second part of the test considers whether or not Ontario is the most convenient place for the lawsuit. This is referred to as “forum non conveniens” and is based on an understanding that courts have the power to decline to hear an action in appropriate circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The Court may consider issues such as the difficulty or inconvenience of having to pursue litigation outside of Ontario or if you require ongoing medical attention in Ontario. The opposing party will have the burden of showing that another forum is clearly more appropriate than Ontario.

Is My Case Worth Less in Other Jurisdictions?

We have all heard of the large jury awards handed out in the USA. Unfortunately, many States require only minimal auto insurance coverage for their drivers. Therefore, if you are injured in the U.S., your access to the other driver’ss insurance may be limited even if your damages are much higher. Fortunately, you may still be able to recover additional compensation under the Family Protection Endorsement (OCPF-44R) in your own auto insurance policy. This coverage may increase your protection against uninsured or underinsured US drivers. You may also be entitled to receive accident benefits through your own policy.

Be Aware of Limitation Periods

The law of the place where the accident occurred is the law which determines who is at fault for an accident. This law also determines the time within which you must bring your action (the “limitation period”) as against the at-fault driver. American limitation periods are often shorter than the periods that apply in Ontario. Therefore it is crucial to contact a personal injury lawyer as soon as possible following the accident. If you miss the U.S. limitation period, you may not be able to bring an action in Ontario.

Assess Your Insurance Needs

It is also important to discuss your auto and travel insurance needs with your agent before travelling outside of Ontario. You may need travel insurance to cover any unexpected medical bills while in the US. You may want to increase your auto insurance limits and purchase optional accident benefits in order to protect yourself against the often in adequate insurance carried by US motorists.

This blog post was written by Edward (Ted) Masters, a member of the Personal Injury team.  He can be reached at 613-566-2064 or at ted.masters@mannlawyers.com.

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Ted Masters

Ted Masters

My practice is focused on helping people who have been injured in car accidents or through medical negligence or who have been denied disability insurance benefits. With over 40 years of experience as a personal injury lawyer, I understand how a serious injury or denial of disability benefits affects not just my individual client, but their entire family. I am alert to each client’s individual physical, emotional and financial needs and challenges. I work to achieve an outcome that is client focussed. As a trained mediator, I understand that my client’s personal goals must be met in order to come to a satisfactory resolution of their case, preferably through a reasonable settlement, but by trial judgement if necessary. Although assisting individuals has been the focal point of my legal career, my clients get the benefit of my wide range of litigation experience including disability claims, intellectual property litigation, commercial disputes, Indian... Read More

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