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Letter: Lawyers not to blame for auto insurance costs

|Written By Bert Raphael

It is not enough that the Insurance Bureau of Canada and its insurance clients have control of every aspect of the lives of innocent accident victims, but they now want to monitor how personal injury lawyers structure their fees.

Barbara Taylor, director of policy at the insurance bureau, suggests that the tracking of lawyer fees will protect consumers while allowing the government to note the impact of lawyer fees on the auto insurance system (see “IBC wants regulation for personal injury lawyers,” Feb. 23). If the insurance industry really wants to control costs, I suggest that they take a hard look at what is expected of accident victims when they announce their intention to advance a claim. Immediately, there is a list of dozens of demands including an employment file, income tax returns, clinical notes and records of doctors, hospital records, drug store records, Facebook records, information on previous accidents, names and addresses of witnesses, identity of insurer, a statutory declaration as to how the accident occurred, and on and on.

This is even before there is a determination on whether the case will cross the verbal threshold. While the insurer gratuitously offers to pay reasonable costs, that does not include the time of the lawyer to pursue the various requested items. Has the insurance bureau ever costed the expense to the insurance company and therefore the system of reviewing the various productions when perhaps no claim has ever been advanced?

If litigation is instituted and the matter proceeds to examinations for discovery, again under direction from the insurance company, the defence lawyer will demand further productions and often these items generate some 30 or 40 letters that have to be prepared by the plaintiff’s lawyer. Assuming all these items are produced, has the insurance bureau computed the costs of first the defence lawyer collecting these items and the adjuster reviewing the same? By this time, the plaintiff’s lawyer will have incurred the cost of medical reports and the defence lawyer will make it clear that while they have to be produced, the insurer will not pay for them. Again, the plaintiff’s lawyer has to lay out that money and, of course, spend the time writing for and receiving medical reports.

If the lawyer for the defence wants a medical report, he will usually choose someone who is totally sympathetic to the defence position and, of course, that is an expense to the insurance company that often runs into the thousands of dollars. Then, based on that report, there is a denial arguing that the case does not meet either the threshold or the $30,000 deductible. At this point, having invested time and money, a plaintiff’s lawyer must decide whether to proceed to trial or throw in the towel.

In reality, if a settlement is achieved, it is usually based on analysis of two or three medical reports amounting to a compromise between the plaintiff’s medical information and the defence doctor’s report. In the end, the piles of paper generated by productions throughout the course of the claim are redundant; however, they have justified the salary of adjusters and defence lawyers, all of which costs the system and affects increases to automobile insurance premiums.

My point is that even if this paper chase is eliminated, the insurance bureau and insurance carriers will still find another way to shortchange proper compensation for innocent accident victims.

Bert Raphael,

Raphael Barristers,

Thornhill, Ont.

  • FAIR Association
    A consumer friendly fee structure would expose the cost of the extraordinary demands imposed by the insurers and their counsel during the course of a claim. We do not agree that lawyers should be able to award themselves ‘premiums’ or bonuses for a job well done and for which they’ve already been well paid. Nor should an hourly wage increase happen without consultation with a client. There is ample evidence that many legal professionals are not keeping proper dockets which translates into billing that equates to a guesstimate of services. The legal profession has failed to self regulate and in the bargain failed victims. 78% of Ontario’s legal bills are reduced at an assessment hearing and 61.063 mva case languishing in Ontario civil court tells us its costing victims too much. If the IBC proposal is offensive then come up with some regulations so that once a victim has been put the ringer by their insurer they don’t end up fleeced by yet another person they paid to help them.
  • Jokelee Vanderkop
    The whole system would be better if the legitimate claimant of a mva was put first. Insurers focus on how they can avoid paying benefits and make use of too many for-hire experts in their IMEs who are so well paid that they'll write in favour of the insurer to keep their income levels up, then too many personal injury lawyers put their firm's financial interests first, with too many providing ill-advise, late on deadlines, overbilling, and when you do find a good one, you risk losing a great part of your settlement to a "premium success fee". I thought a client hired them to win so why the bonus. The legislators acquiesce to the IBC and we end up with an ill-conceived Bill 15, and the IBC points fingers at everyone "in the accident business" forgetting that they are in that business too and more than willing to turn a blind eye to how their industry treats claimants.
  • Tammy Kirkwood
    Survivors have been made to pay for a MVA that took away their well being pre accident. We have consistently had our recovery tools decreased or taken away. 1. Qualified, Treating doctors have their reports ignored or altered. 2. Taxi's service to get to and from appointments has been taken away. 3. Access to rehab personnel has been decreased due to the travel to the survivor has been eliminated. The list goes on.The insurers will spend thousands of dollars to traumatize victims again and again through their abusive IME system.
    This dysfunctional system helps all the hands in the victims pockets grease their own palms.
    "IBC's recommendation that injured auto accident victims be provided an easily understandable (consumer friendly) fee-structure outline" Sounds good, but is it more bullshit?
    "Nothing will change until changes occur at Queen's Park first." Indeed! Look at the cuts to benefits the gov't as been making to social services themselves.
  • Rhona D
    Claimants don’t understand why the legal profession doesn't agree to a fee schedule. Not because the IBC is demanding it but because all of the ways insurers run up plaintiff legal costs would be revealed. If the IBC and plaintiff lawyers truly want to control costs then both sides need to get to work to clean up the mess. Start with the IMEs where delays and denial begins. Get a roster of qualified examiners and get rid of the bad apples whose shoddy medical opinions have created a civil court backlog of over 61,000 cases. Why isn't either side doing something about this problem that is harming victims, driving costs, and blocking access to timely justice? Lawyers need to listen to what MVA victims expect of them. High on that list of priorities would be to take action when dishonest medical opinions end up in a file – not dealing with this as it happens isn't acceptable and is adding legal costs to claims. Better yet, fix the system that allows the deception.
  • Devils Trumpet
    The statements by Barbara Taylor is another dog and pony show meant to change the discussion away from the real problem of bogus medical assessments from insurance industry-owned assessment mills,altered reports presented as evidence in court and unqualified doctors that personal injury lawyers do little about.Rarely much is mentioned about the high costs by those who work within the system.
    That being said,the insurance industry is looking for new opportunities to squeeze more money into their pockets with the lawyers being their next target to lobby(pay)the government for legislation that sets financial limits on what personal injury lawyers can earn from representing a client.
    Nothing will change until changes occur at Queen's Park first.
  • brian francis
    Do you really believe OTLA's 1,300 members need you to protect them from the IBC's attempt to make them its "next victims". What with all the lawyerly indignation - you seem to have overlooked the IBC's recommendation that injured auto accident victims be provided an easily understandable (consumer friendly) fee-structure outline. I'm no fan of the IBC but what the Hell is wrong with that idea? Of course the IBC is looking to target plaintiff lawyers and to blame them for the costs of Ontario auto insurance. They are insurer lobbyists for God's sake. That is the sort of stuff the IBC spokespersons are paid to do - and say they do on their website (ie. frame issues to the advantage of IBC's auto insurer members). But does that mean you intend to ignore the IBC when it calls for a clear fee structure statement - disclosing self-awarded premiums? It is rare for any of the long time stakeholders to lobby for anything but their own financial interests. So isn't it silly to ignore this one?
  • brian francis
    Mr. Raphael is “on the money” in his description of how the auto insurers’ standard claims handling practices give rise to costs the IBC then lament (and blame others for). As Mr. Raphael points out; a key element in the way auto insurers do this is by shopping at their preferred (insurer-friendly) medico-legal assessment mills for accusations of fraudulent malingering. The question this article begs – is this: when will the plaintiff lawyers lobby government to clean up the abusive and costly auto insurance IME/IE system that is hurting their clients so badly (an issue repeatedly raised in the mainstream press and even in a couple of previous Law Times social justice columns)? Their perpetual failure to do so makes the lawyers (on both sides) responsible for the endless bogus, wrongful accusations of malingering driving up the cost of litigation - and by extension - responsible for the high cost of insurance.

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