With the pending changes to the SABS, tort adjusters will undoubtedly be called upon by Plaintiff counsel to make advance payments to cover such things as medical expenses, lost wages and attendant care.\u00a0 Seriously injured Plaintiff\u2019s facing a combined $65,000 limit for medical, rehabilitation and attendant care benefits will start looking for funds from the tort defendant in advance of a settlement or trial.\u00a0 With a five year limit set to be imposed on non-catastrophic Plaintiffs to access these benefits, it is conceivable that many Plaintiffs will have either used up, or no longer be entitled to receive such funds, before their cases get to trial.<\/p>\n
The benefits of an advance payment from the defendant\u2019s perspective may not be obvious.\u00a0 Traditionally, there has been reluctance to consider such requests, unless there is a proven shortfall in AB funding along with a documented need for further funds.\u00a0 The notion of an advance payment generating \u201cgood will\u201d with the Plaintiff and fostering a more \u201cco-operative relationship\u201d between the parties is rarely a convincing argument for a tort adjuster.<\/p>\n
A more compelling reason to make an advance payment is to assist in the recovery. \u00a0Faced with a situation where AB funding is running out, or the 5-year anniversary of the accident is fast approaching, a tort adjuster might consider making an advance payment to offset ongoing medical costs.\u00a0 Medical support in the form of treatment recommendations, along with invoices and receipts evidencing ongoing attendance, must always be sought.\u00a0\u00a0 \u00a0Efforts made to help an injured Plaintiff further rehabilitate could lead to a reduced general damages assessment and a quicker return to work.\u00a0<\/p>\n
There are situations where advance payments are statutorily required. The legislative framework in Ontario requires an insurer to make an advance payment for income loss in certain circumstances.\u00a0 Subsection 258.5(2) of the Insurance Act<\/i> provides \u201cif the insurer admits liability in respect of all or part of a claim for income loss, the insurer shall make payments to the person making the claim pending determination of the amount owing\u201d. Subsection 258.5(3) explains that the amount of the advance payment is to be based on the insurer\u2019s estimate of the amount owing in respect of the claim for income loss. \u00a0Accordingly, provided that liability has been admitted and the plaintiff is advancing a claim for income loss, tort adjusters are statutorily mandated to make advance payments to an injured plaintiff; failure to do so is considered in awarding costs.<\/p>\n
In summary, advance payments need to be based on a realistic appraisal of a plaintiff\u2019s case.\u00a0 Responding to requests for advance payments should be made after the case can properly be assessed.\u00a0 At a minimum, this will require documentary and oral discoveries to have taken place.\u00a0 Advance payment requests by plaintiff counsel can also serve as a stepping stone to meaningful settlement dialogue.\u00a0 It is anticipated that such requests will start to be the norm, as opposed to the exception, given the pending changes to the SABS.<\/p>\n","protected":false},"excerpt":{"rendered":"
With the pending changes to the SABS, tort adjusters will undoubtedly be called upon by Plaintiff counsel to make advance payments to cover such things as medical expenses, lost wages and attendant care.\u00a0 Seriously injured Plaintiff\u2019s facing a combined $65,000 limit for medical, rehabilitation and attendant care benefits will start looking for funds from the […]<\/p>\n","protected":false},"author":100,"featured_media":14367,"parent":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[525],"insight-format":[418],"class_list":["post-4995","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-insurance"],"acf":[],"yoast_head":"\n