Judge Rules Injury Settlement Does Not Impact Injured Person's Ongoing Right to Section B Medical and Rehabilitation Benefits

In a Court Decision released earlier this month, Justice Beveridge of the Nova Scotia Supreme Court held that a woman's settlement of her injury claim had no bearing on her right to ongoing benefits from her Section B Insurer. The case was Humphrey v. Portage La Prarie Insurance.

Essentially, the insurance company was trying to limit its obligation to pay medical and rehabilitation expenses submitted by the Ms. Humphrey. Under the terms of the standard automobile policy in Nova Scotia and Prince Edward Island, Auto Insurers have to pay up to a maximum of $25,000 for medical and rehabilitation expenses related to injuries suffered in a car accident

This case represents a victory for injured persons and automobile insurance policyholders in Nova Scotia.

Melanson v. Rogers -- Nova Scotia Court Rejects Injured Person's Claim for Future Loss Income

On February 3, 2009, the Nova Scotia Supreme Court awarded compensation to a man hit by a car while walking along the road in a snow storm. The decision is Melanson v. Rogers and you can access a copy of it by clicking here. This case is important in that the judge chose not to award compensation for future loss of income because of "lack of evidence."

While I cannot say it would have made any difference in this case, in general, it is very important for the injured person to have an expert at trial who can testify how the injuries will impact the person's employability and ability to earn income in the future.

This accident happened in 2000 (before the $2,500 cap took effect), so the $2,500 minor injury was not an issue. Based on the findings of the trial judge, it is likely that the $2,500 cap would have been applied to this case, based on the existing legislation and regulations.

Nova Scotia $2,500 Minor Injury Cap Case may Get to the Court of Appeal by June 2009

I have heard rumors that the Hartling Decision is headed to the Nova Scotia Court of Appeal as early as June 2009. The Hartling Decision is the ruling of Justice Goodfellow which upheld the $2,500 Cap on automobile accident claims in Nova Scotia. You can access a copy of the Hartling Decision by clicking here.

If this turns out to be true, it would be great news for both car accident victims and the insurance industry. The ruling from the Court of Appeal will move us closer to having a final decision on whether the $2,500 Cap will remain in place in Nova Scotia. As long as the legality of the $2,500 Cap remains in dispute, it is nealy impossible for most people to settle outstanding automobile accident injury claims. This is because there is often a wide gap in the potential settlement amounts depending on whether the $2,500 cap stays or gos.

If the Court of Appeal hears arguments on the Hartling Case in June 2009, then it remains possible that we would have a written decision from the Court of Appeal by the end of 2009.

Three Key Points Injured Persons Can Take Away From the Hartling Decision on the $2,500 Injury Cap on Car Accident Cases

Over the past 24 hours I have received many calls and emails from people wanting to know what the Hartling Decision means for people who have outstanding lawsuits or claims that may be subject to the $2,500 cap. In the Hartling Decision, Justice Goodfellow ruled that the $2,500 cap will remain the law in Nova Scotia.

While everyone's case is unique, I would like to make three comments that I believe will answer the most common questions on "where do we go from here":

First, the Hartling Decsion is not the final word on whether the $2,500 cap is legal in Nova Scotia. The Hartling Case is being appealed to the Nova Scotia Court of Appeal. At the Appeal, a panel of three judges will hear arguements from both sides and make a final decision on whether to agree with, or over-rule, Justice Goodfellow's decision to uphold the $2,500 cap. Depending on what happens at the Court of Appeal, its entirely possible that the Hartling Case could go to the Supreme Court of Canada (in Ottawa).

The Supreme Court of Canada has the power to over-rule the Nova Scotia Court of Appeal. It is noteworthy that the last major case dealing with discrimination based on Chronic Pain (Martin v. Workers Compensation Board of Nova Scotia) ended up being appealed all the way to the Supreme Court of Canada. In that case, the Supreme Court of Canada held that it was improper to discriminate against people on the basis of disability (chronic pain).

--> Key Point: While the $2,500 cap remains the law in Nova Scotia, it is possible that it may still be overturned by the Court of Appeal or the Supreme Court of Canada. You should seek you own legal advice, but as a general rule, it is usually prudent for people to wait for the final outcome of the appeals regarding the $2,500 cap. If you settle for $2,500, you cannot re-visit your case later if it turns out one of the higher courts later over-rules the Cap.

Second, the Nova Scotia Court of Appeal's decision on the Hartling Case is at best several months away, and at worst, well over a year away. The $2,500 cap is a complicated issue and there is a lot at stake for all involved. In the Hartling Case the injured women have 25 business days to file their appeal. After that they have 80 days to apply for a date for the Appeal. The date for the appeal would likely be a one or more months after that.

Key Point--> The unfortunate news is that the current period of legal uncertainty (regarding the ultimate validity of the $2,500 cap) will continue on likely at least untill the end of the year. If you do not want to settle your case on the basis of the $2,500 cap, then you should be prepared to wait.

Third, generally speaking, it will be practically impossible for other injured people to challenge the $2,500 cap while the Hartling Case winds its way through the appeals process. The Courts are currently issuing Orders perventing other injured people from challenging the $2,500 cap, as did the people in the Hartling Case. This means other people with outstanding claims or lawsuits will face challenges with moving their cases forward, as they will not be permitted to challenge the $2,500 cap in their individual cases. If you have an ongoing lawsuit this is something you will have to discuss with your own lawyer.

Key Point--> From the perspective of an injured person, there are significant risks with going to court while the Hartling Decision is in the appeals process. For example, a judge could rule that, based on the current law, the $2,500 cap applies to your case. If the Court of Appeal later goes on to over-rule the $2,500 Cap, there is almost no chance that you would be able to revisit your case, if it has already been decided by a Judge.

Finally, I cannot stress enough the importance of getting legal advice specific you your own situation. What I or another lawyer may recommend will be different depending on many factors including, the type of injuries, when your accident happended, how your accident happened, where your case is in the litigation process, etc.

If you are recently injured and do not know what to make of the whole situation, I recommend you speak with a lawyer experienced in personal injury and insurance law. Many lawyers will explain your rights and give you some initial advice, without any charge or obligation.

Nova Scotia Supreme Court releases decision on $2,500 Cap on Car Accident Injury Claims: Accident Victims Lose

Earlier this morning Justice Goodfellow released his long awaited decision on the validity of the $2,500 cap on car accident injury claims. In a 92 page decision, Justice Goodfellow upheld the $2,500 cap.

This is a big set back for the accident victims who brought this case, but they will likely appeal it to the Nova Scotia Court of Appeal, which will have the authority to overturn or uphold this decision.

I am still going through the decision, but you can access a copy of it by clicking here --> Hartling v. the Attorney General of Nova Scotia and the Insurance Bureau of Canada, [2009] NSSC 2.