It’s OK To Sue A Loved One To Access Insurance

Author(s): Darcy R. Merkur

September 17, 2020

It’s understandable to be hesitant to sue a loved one for causing an accident. Unfortunately, accident victims are forced to do so because they are required to sue ‘people’ to access insurance, and those ‘people’ are commonly the friends or family they were with at the time of the accident.

We all buy insurance to protect us when things go wrong. Car insurance is purchased to cover us for our wrongdoings in the event of an accident and, in Ontario, car insurance is mandatory.

We also frequently travel with friends and family in our vehicles. When something goes wrong, we often face the realities of having to implicate our friends and family in a lawsuit simply to gain access to the insurance available to cover these exact events.

While accident victims are typically comfortable suing a stranger for causing an accident, many express an extreme reluctance to make allegations in a lawsuit against their loved ones.

The purpose of this article is to explain why, legally, you must sue your loved ones in many situations. The hope is that this article will help remove some of the guilt accident victims experience when facing the uncomfortable reality of suing a loved one.

Let’s take a look at a simple example of a husband driving home from dinner with his wife. If an accident occurs on their way home and the wife is badly injured, she will have to sue her husband to collect any potential compensation from his car insurer. If the vehicle being driven is owned by someone else, like the husband’s father, then the injured wife would also implicate the husband’s father in the lawsuit as our automobile legislation makes owners legally responsible for accidents involving their vehicles.

Too often accident victims express an unwillingness and a discomfort to start a lawsuit if it means implicating their loved one for causing the accident. That sentiment is completely understandable and many of us will sympathize with those feelings. However, our legal system mandates that all alleged at-fault parties be named as defendants in the lawsuit in order for the insurance that is available to respond behind the scenes and ultimately pay the compensation due and owing.

Once the claim is underway, the insurance company governs the management of the defence of the lawsuit and its resolution, while the named defendant loved one is essentially a spectator with very little involvement in the process other than to testify about their information and knowledge.

Importantly, and while this information is not allowed to be disclosed to a jury at trial, the compensation payable to the accident victim is notoriously paid by an insurance company.

Insurance is there to protect at-fault parties from legal liability. If a loved one causes injuries, albeit without intent of doing so, they should appreciate and understand the need for their loved one to sue them to access compensation paid by their insurance company.

The anticipated defendant should make it clear that they would have no hard feelings for being sued and they should do their part in reducing the guilt that the injured person feels. The injured person is already dealing with recovering from serious injuries and they do not need to be saddled with the guilt associated with starting a lawsuit to access the compensation they deserve.

The problem with suing loved ones stems from the hidden dynamics associated with insurance coverage. If you could sue the insurance company directly rather than the at-fault party, then the hesitation to sue would not exist, but it is highly unlikely that changes will ever be made to our legal process to allow such lawsuits to be brought directly against insurers.

Finally, it should be noted that claims by injured loved ones against friendly defendant family members are simplified because the friendly defendant family member will be able to truthfully confirm the extent of the injuries sustained. In other words, the at-fault loved one will usually admit that their relative has been badly hurt thereby factually and honestly handcuffing their defence counsel’s arguments to the contrary.

Feel free to share this article with others to help them understand these legal dynamics.

Darcy Merkur is a highly regarded Ontario trauma lawyer helping accident victims such as pedestrians, cyclists and motorists, who have sustained catastrophic injuries. 

Darcy is the first lawyer in Canada to be qualified as a Certified Brain Injury Specialist by the Brain Injury Association of America. In addition, Darcy has been recognized as a Certified Specialist in Civil Litigation by the Law Society of Ontario, is listed in peer-reviewed publications – Lexpert® and The Best Lawyers™ in Canada, is ranked AV pre-eminent in Martindale-Hubbell ® and is a partner at Thomson Rogers, one of Canada’s Top 10 Personal Injury Law Firms as selected by Canadian Lawyer Magazine. 

Darcy can be reached at 416-868-3176 or by EMAIL.

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