Emergency measures: Getting sued

Someone slipped and fell on my property and is suing me. What should I do?

  82

by

From the October 2009 issue of the magazine.

  82

Know the law

Courts generally insist that you must take reasonable — but not extraordinary — steps to make sure that anyone visiting your property is safe from injury. So long as you’ve shoveled your porch stairs within 12 hours of a snowfall, you’ve taken reasonable precautions. If you cut off the guest at your Saturday night dinner party who’s had a few too many drinks and wants to jump into the pool, you’ve also taken reasonable measures. But no one expects you to have your stairs ice-free within 20 minutes of a midnight snowfall or foresee that a perfectly sober guest will injure himself climbing in the pool. To find out the nitty-gritty details, go online and read the occupier’s liability act for your province. The act provides general guidelines for what a homeowner needs to do. “It’s easy reading for most people,” says Mehran Yazdani, a personal injuries lawyer in Toronto. “All homeowners should familiarize themselves with it.”

Protect yourself

Write down the details of any accident. Get names and phone numbers of witnesses. Take photos of the scene and note the time and weather. Also write down any details that may help prove the injured person was partially or wholly responsible — for instance, if they were wearing high heeled shoes on a snowy day or carrying parcels that may have blocked their view. “If the injured person makes a statement about their conduct like, ‘Gee, if I had been wearing my glasses I wouldn’t have fallen,’ you should write it down,” says Miles Obradovich, a personal injuries lawyer in Toronto. “On the other hand, if they suggest that the fall was your fault, tell them that you are unable to comment.” It’s up to a court to determine responsibility, not you.

Talk to your insurance agent — fast

If you receive a notice in the mail informing you that you are being sued, don’t try to settle matters yourself. Instead, phone your insurance agent and forward a copy of the letter to him. Be aware that, depending upon your province of residence, an injured person may have up to six years after an accident to start a lawsuit against you, so you may not even remember the incident in question. Whatever the case, it’s your insurer’s job to play defence. “Your home insurance company has the duty to defend you, and all home- owners have enough insurance coverage to deal with these claims,” says Yazdani. “Even the most basic homeowner’s policy will cover you for up to $1 million in liability — more than enough for any claim. Of course, if you don’t have homeowner’s insurance, you will be on your own when it comes to paying the legal bills.”

Relax

You may have to go to a court reporter’s office with a lawyer from your insurer. Under oath, you will recount your version of events as well as answer any questions from the plaintiff’s lawyer. The plaintiff will also be there to recount his or her version of events. The aim is to determine who was at fault for the accident. But don’t worry. Most cases are settled quickly and never go to trial. “Anything you remember that shows that the plaintiff was partly or fully to blame for the accident will help when it comes to deciding the amount of the settlement,” says Obradovich. “Of course, if the two sides agree that you were not negligent, then the case will be dismissed and no settlement will be required.”

Don’t stand on principle

If the insurance company decides to settle out of court, let them do so. The vast majority of claims are settled before trial for under $25,000. Only 1% of cases wind up in court. “If someone twisted their ankle, a $2,000 payment is likely,” says David Farrar, a personal injuries lawyer in Halifax. “If it’s more significant, like a broken arm or leg, a $20,000 to $25,000 settlement is common. Whatever the amount, the insurance company pays it for you.”

Prepare yourself

In the rare cases where a settlement cannot be reached, you will have to tell your story in court. The night before your appearance, go over your notes and have a friend or family member quiz you on the event. Strive to be clear, logical and concise. Don’t exaggerate but be prepared to state your side of the story. A judge will decide who was at fault and what the final damages will be. “It’s the cases that involve brain injuries that usually end up in court,” says Yazdani. “And if the plaintiff is at risk of losing future employment earnings because he can no longer work, and you are deemed to be at fault, then the court settlements can be very high — close to $1 million.”

Shop around for insurance

If this is your first claim, then you will lose your claims-free discount, though your home insurance policy will be renewed as usual. But if this is your third insurance claim, your home insurance company may refuse to renew your policy. If this happens, contact an insurance broker and see what other insurance companies have on offer. “Your premium may double or triple, you’ll have a higher deductible and the new insurance company may restrict your coverage in certain areas, but you can usually get some type of coverage,” says Denny Edwards, an insurance agent with CarInsurance.ca in Toronto. “Have your agent shop around for you until you’re satisfied you’ve gotten the best policy available.”

Have an emergency? Email your question to letters@moneysense.rogers.com

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