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Settling personal injury cases in age of the pandemic | Andrew Murray

Tuesday, June 30, 2020 @ 2:24 PM | By Andrew Murray


Andrew Murray %>
Andrew Murray
When the COVID-19 pandemic first hit in Ontario I sent an e-mail of encouragement to the members of my own practice group — plaintiff personal injury — which I also shared with my colleagues in the insurance defence group; the firm where I am a partner, Lerners LLP, is one of the few remaining law firms that continues to be equal parts plaintiff and defence in its orientation. Even at the beginning of the pandemic, my sense was that we should be looking for a common path forward. In part my message read:

“From everything I am reading, we have the potential to be under restricted patterns of contact for a significant block of time. Things will have to change in terms of how we continue to resolve our clients’ cases. Unlike other areas of practice, my thought is that both plaintiff and defence lawyers will have a number of files that are probably ripe for settlement, if just a little cajoling and personal energy is extended. On those files where most productions have been exchanged, or where the case is small enough that it doesn’t really need a discovery to tip it over the edge, we can and should be reaching out to opposing counsel to see if we can achieve a meeting of the minds. Most of us do this already, so we really just need to ramp up those efforts.”

Now, more than three months later, I am better able to gauge whether there was merit to my advice or whether I was woefully off the mark. At least as it relates to my own clients and my own interactions with insurers, adjusters and their counsel I am so pleased that my optimism was rewarded by the professional, optimistic and pragmatic parties who responded to my settlement overtures.

Based solely on my experience with my own clients and with my own (digital) filing cabinet, I have indeed observed a commendable willingness on the part of many insurance companies to try to reach a settlement of a claim that makes sense for both parties.

No one can negotiate for a client unless the other party is also willing to talk. I did have some concern when the pandemic hit and all of us moved to work remotely that, if an insurer simply said “No” to any of my requests to discuss a file, the insurer would have the upper hand and my clients would be left to wait. Any fear I had was unfounded.

Three months into this new way of conducting business, I have been able to reach appropriate settlements relating to both tort lawsuits and accident benefit claims on an accelerated basis. It seems that for many insurers on many files, rather than capitalizing on these unusual times to delay or thwart claimants, their business imperative has led them to conclude that the old adage that “the best file is a closed file” continues to drive business decisions.

In fact, from what I’ve seen, insurers have been just as worried as my clients about how they are going to adjudicate claims and achieve resolutions.

For the lawyers who do this kind of work, it is well known that the last quarter of the year, October to December, is often referred to as “settlement season.” This is because there appears to be an increased incentive for insurers to clear files off the books before year-end.

What I have seen this spring is a comparable effect, but now related to this COVID-19 lockdown block of time. While some parts of what we do have been suspended, the ability to talk through a case to reach a settlement remains within the grasp of anyone willing to talk.

Settlements have been occurring, on my initiation, on those files where we have exchanged relevant and appropriate productions, but also on the initiation of the insurers themselves through their adjusters and counsel. I have been approached directly by insurers in a manner that is familiar to me from past settlement seasons, but that is most definitely not common during the March to June time frame.

This is good news for personal injury claimants, many of whom have a whole new set of financial pressures, given layoffs from work and other financial pressures that have occurred during the pandemic, in addition to their accident-related challenges.

I dare say, it is good news for insurers as well; insurance companies still need to manage file exposure, manage litigation costs and retain some semblance of forward movement on files.

None of this is to say that insurers are abdicating their duty to carefully adjudicate claims; they still ask the tough questions and flesh out the various issues of liability, causation and damages. But the willingness to talk, to be fair and to reach appropriate resolutions is reassuring.

Respect, professionalism, full documentary exchange and a healthy measure of pragmatism and compromise have been my professional antidotes to COVID-19. You don’t even need a prescription!

Andrew Murray is a partner at Lerners LLP, where he is a member of the plaintiff personal injury practice group and appellate law group. Murray’s focus is civil litigation, with an emphasis on motor vehicle, personal injury and long-term disability litigation. He also maintains a small quasi-criminal law practice. 

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