Motorcycle Personal Injury Claims
Author(s): Darcy R. Merkur
March 30, 2021
Motorcycle enthusiasts understand how motorcycle accidents can easily lead to very serious injuries. To be blunt, injuries sustained by motorcyclists are often the most horrific injuries with fatality being too common of an occurrence.
A motorcyclist hit by a vehicle doesn’t have the same physical protection, like multiple airbags and seatbelts, that passengers in a motor vehicle have even when you account for use of a required motorcycle helmet. And while pedestrians have no physical protection at all, unlike pedestrians motorcyclists are usually in motion when involved in an accident causing a more significant collision and corresponding injury.
There are some distinct rules that apply to motorcycle claims and anyone seriously injured while riding a motorcycle should make sure to hire a trauma lawyer with experience handling motorcycle claims.
Here are some things you should know about motorcycle claims.
1. No-Fault Accident Benefit Rights
Motorcyclists injured in Ontario have no-fault accident benefit rights identical to those injured in car accidents. Accordingly, motorcyclists can qualify for medical, rehabilitation and attendant care benefits in accordance with the maximums available under the legislation (either $1 million if you have sustained a “catastrophic impairment” or $65,000 if you have sustained other less significant injuries like fractures and/or a concussion). Income replacement benefits can also be paid to injured motorcyclists just like motorists or pedestrians hit by vehicles. The injured motorist should make a claim for accident benefits to their own motorcycle insurer. It should be noted that when purchasing motorcycle insurance it would be prudent to purchase enhanced optional benefits to provide additional coverage if you are injured given the serious nature of injuries involving motorcycles.
Lawsuits advanced by injured motorcyclists are identical to claims brought by motorists and pedestrians. Injured motorcyclists who are not at fault for their accident (or are not entirely at fault) can sue any other person who may be responsible for causing the accident, such as the owners and operators of the vehicle that struck them. Such a lawsuit would include a claim for the motorcyclist’s pain and suffering, their income loss and their long term care costs (over and above the amounts available from their accident benefit insurer). Family members can also participate in a lawsuit claiming a loss of care, guidance and companionship along with any other financial losses.
3. Equipment Issues
Motorcyclists are obligated to wear appropriate certified helmets. In any motorcycle lawsuit the insurance company’s defence lawyer will look into the quality of the helmet worn to ensure that it was an appropriate helmet. Motorcyclists should make sure that their helmets have been properly certified. If you have been involved in a motorcycle accident you should make sure to preserve the helmet you were wearing or at least try to find a picture of it.
4. Loss Transfer Issues
There are important special and distinct rules governing motorcycle injuries and how it works behind the scenes between insurers when it comes to your accident benefit claim. In short, your accident benefit insurer can potentially recover the amounts they have paid to you in accident benefits from the insurer of the vehicle responsible for causing the accident. The consequence of these loss transfer dynamics often result in your accident benefit insurer acting more “bureaucratic” when managing your claim. In other words, because your motorcycle insurer will seek to recover the amount that they pay in accident benefits from the responsible automobile insurer, they must make sure to manage their accident benefit claim diligently and follow all of the red tape protocol. Motorcycle insurers want to avoid having the automobile insurer scrutinize and question their managing of the accident benefit claim and suggesting that the motorcycle insurer overpaid the benefits due and owing. These dynamics sometimes make it difficult to efficiently settle accident benefit claims involving motorcycle insurers.
5. Liability Dynamics
Motorcycle accidents generally involve some different liability dynamics than do typical motor vehicle accidents. For example, motorcycles accelerate faster than most vehicles, can drive within different parts of a lane, and are smaller, and thus typically harder to see than cars. It is important to consult with and retain a trauma lawyer who has experience dealing with motorcycle claims because of these dynamics. Reliance on accident reconstruction experts are often necessary to determine issues of visibility and speed, as notoriously defence counsel investigates whether or not the motorcycle was operating above the speed limit at the time of the accident such that they should bear some degree of responsibility for the accident. Interestingly, motorcyclists do not face some of the same ‘distraction’ defences that motor vehicle operators face given that texting and motorcycling is not currently a real option.
At Thomson, Rogers we have been helping accident victims for decades. We have handled hundreds of claims involving injured motorcyclists. Motorcycle injuries are often extremely serious and if you have been injured in a motorcycle accident, please contact a trauma lawyer at Thomson Rogers.
Thomson Rogers offers free consultations so please feel free to reach out to us at any time. We are here to help.
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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