Trauma lawyer stresses the adversarial nature of the system, says better public awareness is needed to help navigate difficult family issues
Darcy Merkur wants to get the word out about accident claims. The trauma lawyer at Thomson Rogers Lawyers working for accident victims says that awareness needs to be raised about the adversarial insurance claims process to help navigate the all‐too‐common scenario where one family member needs to sue another to obtain the insurance payout they deserve.
Merkur says that in many cases, especially when the victims aren’t especially familiar with Ontario’s legal system, children, parents, grandparents, and spouses will be reluctant to file a suit against their loved one after falling victim to an accident caused by that loved one. In doing so, they would forego an insurance payout at no real cost to their loved one because the perception of a lawsuit rankles them.
Merkur says that managing these situations, from a lawyer’s perspective, takes careful and clear communication. He says that the public needs to be better informed about the adversarial nature of the system and that a lawsuit, in accident cases, represents more of a key to obtaining compensation than an attack on their loved one.
“Well, what I'm trying to do is to raise public awareness of the legal realities so that people who are being implicated by loved ones can read more information online, to better understand why it is that they're being accused of wrongdoing by lawyers representing the accident victims,” Merkur says. “I want them to know that our laws require lawsuits against the alleged at fault person, rather than the insurance company, to obtain compensation.”
Merkur stresses that the system doesn’t allow accident victims to sue insurance companies directly, and must instead sue the alleged at-fault parties, even if that driver is the victim’s spouse. If that suit is filed, Merkur says, it’s very easy to obtain compensation for the victim from the insurance company. Their at‐fault spouse, for example, can tell the truth about the accident and its impacts and truthfully attest to the injuries to their spouse without violating their legal responsibility not to impair their defence.
The challenge in these cases, Merkur says, is more often starting the suit than it is actually seeing it through to a successful conclusion at or before trial.
The dynamics of the lawsuit, Merkur says, can “freak out” some victims who don’t want to sue their at-fault parent who happens to be their primary caregiver now, even if they need access to compensation because they’ve been badly hurt and have lost the ability to work. Usually, he says, a good personal injury lawyer can talk the victim down and explain to them that the system requires this lawsuit and it won’t do real damage to their parent. In rare cases, though, Merkur encounters victims new to Canada or Canadian legal systems, or those who have suffered brain injuries and traumas, for whom ‘attacking’ their supportive loved one through a lawsuit seems, at first, unconscionable.
Merkur says insurance defences will often use a victim’s discomfort with suing family to their advantage, highlighting that the claim exceeds the amount of the at‐fault driver’s coverage. Merkur says making the large claim is more of a safeguard requirement than a realistic move, in most cases, and family members need to understand that the claim is designed to help the victim, not bankrupt the family.
“There’s legal requirements to sue people rather than insurance companies, and there’s nothing wrong with doing that,” Merkur says.
Merkur says that personal injury lawyers need to communicate effectively with their clients when navigating these situations.
“When it comes to the need to sue a loved one, tread carefully, and take your time,” Merkur says. “That dynamic is something that has to be explained to the person in due course. But it's not something you want to emphasize and highlight to any great extent early on, because you should be aware that it causes them extreme distress when they're being discharged out of the hospital…eight months down the road, when they're still injured, they come around as they become more familiar with the insurance process and the need to get the compensation they deserve from the insurance companies.
“Remember, as well, that when you’re suing loved ones, the defence lawyer will have a very hard time trying to undermine the truth of the situation as the defendant relative will have to honestly and genuinely admit the very things the defence doesn’t want them to admit.”