Cross-Border Accidents

Birds of a feather flock together, and Canadian snowbirds are no different. Each winter millions of Canadians spend time in warm, sunny southern American states such as Florida, Georgia, Louisiana, Texas, Nevada, Arizona, California and the Carolinas. But at any time of the year, in all 50 American states, you will find Canadian residents working, visiting relatives, cross border shopping or vacationing.

And, of course, the flow of traffic across the border goes both ways; many Americans enjoy spending time in the Great White North for work or leisure.

Although we share much in common with our neighbours, our laws, legal systems, and insurance structures are sometimes quite different. If you are a resident of one country who suffers a serious injury in the other, an already stressful situation can become even more complicated as you navigate health care, insurance, and civil lawsuits for damages and compensation.

It’s always advisable to consult an experienced personal injury lawyer when you are involved in an accident, but it becomes especially important to seek out this advice when there are added complexities involved such as international law.

Cross Border Injury Law.

When you are involved in an accident in a foreign country you will generally be bound by applicable criminal law, statutory civil law, and common law (stare decisis). An exception is when the accident occurs in the province of Quebec. In that province, Quebec’s Civil Code may be applicable in place of private common law torts.

For example, if an Ontario resident is injured in a car accident in an American state and they are not at fault (or not wholly at fault), they would likely make a claim for damages and compensation (civil tort liability) in addition to accessing the Statutory Accident Benefits Schedule (SABS) covered by their motor vehicle insurance policy.

The civil liability tort claim (for damages such as lost income, medical expenses, and pain and suffering) might be made in the courts of the state where they were injured. The benefits claim would be made in Ontario, and require an Ontario lawsuit if an insurer was not providing a fair amount of benefits in proportion to the injury.

A claim for civil liability against an at-fault driver could also be made in the Ontario courts; however, the court would go through a process to determine if it has jurisdiction over the matter and, if it does have jurisdiction, whether trying the matter in another jurisdiction would be more convenient according to a court-imposed test.

If the Ontario court does take up the case, in a tort matter, the Supreme Court of Canada has stipulated that it must treat substantive issues of a case by referring to the law of the place where the accident occurred, while using Ontario law to determine procedural issues.

To add to this complexity, since it is generally prohibited to sue over the same loss in more than one court, a claim made in one court over the accident could have significant ramifications over a person’s ability to make a claim in another. As such, it is highly recommended to consult an experienced personal injury lawyer for legal advice.

Extended Third-Party Liability Option.

If you’re visiting another country, it is essential to speak with your insurance provider before crossing the border to ensure you have adequate coverage in the event of an accident. You should ask your insurer not only about travel insurance for your trip, but also extended private health insurance and extended third-party liability options.

Ontario’s Health Insurance Plan (OHIP) covers the majority of necessary healthcare treatment expenses when a person is in the province (or other Canadian provinces), but only covers certain essential emergency expenses when an Ontario resident is in the United States. Without extended private health insurance, you could face tens to hundreds of thousands of dollars in out-of-pocket expenses.

Many Canadians visiting the United States travel by car or use a rental car while in that country. Although it’s estimated that only about two percent of Ontario drivers are uninsured, an average of 12-16 percent of American drivers are uninsured or underinsured. In border states such as Michigan and Washington, one in four and one in five drivers are uninsured, respectively. In some states, as many as one in three drivers do not have appropriate insurance. Fewer than half of American states require mandatory motor vehicle insurance, but uninsured drivers are a high risk group of drivers in terms of accidents.

To protect yourself and your loved ones, consider purchasing:

• enhanced medical and rehabilitation options ($2 million in coverage instead of the more common $1 million)
• extended third-party liability options (increase the basic limit of $200,000 to at least $1million, if not more in the event you at at-fault for damages)
• Ontario Policy Change Form 44 and 44R endorsements (to cover damages to you (44) and members of your family (44R) from an at-fault driver without adequate insurance, this option allows you to access up to your third-party liability limit to cover the difference)

Causes of Cross Border Personal Injuries.

Common personal injury accidents that occur in your home province or state don’t need a passport to happen on the other side of the border. But depending on your reason for visiting another country, your risk of a particular type of injury accident could vary.

Frequent causes of cross-border injuries include:

Motor vehicle accidents - Driver, passenger, cyclist or pedestrian injuries can occur due to distracted driving, dangerous driving, driving in poor weather conditions, driving under the influence of alcohol or drugs, and navigating unfamiliar places.

Slips, trips, and falls - Accidents caused by negligence through unmitigated hazards, including: poor grading and uneven surfaces, poorly lit areas, slippery flooring, and icy sidewalks and pathways.

Sports and recreational injuries - Near drownings while swimming or boating, head injuries, spinal cord injuries and broken bones from contact sports or recreational pursuits, illness caused by unsanitary conditions, camp injuries.

Product liability - Illness or injury caused by products that are poorly designed, poorly tested or improperly used, including burns, lacerations, accidental choking or poisonings.

Intentional injury - Disability and/or damage caused by acts of physical violence, sexual assault, or emotional or psychological abuse, failure to provide minimum safety and security.

How To Prevent Cross Border Injuries.

Unfortunately, not every accident or injury is preventable. However, you can reduce your risk of being injured while travelling by keeping these tips in mind:

• Plan your routes in advance. Using tools such as Google Street View can help when travelling to new areas.
• Review local driving rules (for example, are you permitted to make a right-turn on a red light).
• Pay attention to weather reports, traffic information and other advisories.
• Wear light-coloured or otherwise highly visible clothing when there is poor visibility (for example, low light, fog, etc).
• Listen carefully to instructions when attempting a new type of recreational activity or sport.
• Carry a first-aid and emergency kit in your vehicle.
• Take time to familiarize yourself with rental vehicles.
• Avoid unnecessary distractions.
• Try to stay well-rested and take breaks if driving long distances.

Types of Cross Border Injury Claims.

Generally, if you are injured while visiting a foreign country, you may make a claim on a relevant insurance policy and/or a tort claim for damages against an at-fault party.

Benefits claims: If your injury or illness causes you physical, material, or emotional damage, you may be able to draw on a variety of insurance benefits. These may include provincial/state Statutory Accident Benefits (for motor vehicle accidents), private health insurance policies, disability and/or critical illness insurance, travel insurance policies, and life insurance. The benefits associated with these policies vary and may include:

• emergency medical benefits
• standard/statutory medical and rehabilitation benefits
• funds for caregivers and home maintenance
• income replacement
• replacement of lost personal items
• refunds of unused travel-related purchases
• death and funeral benefits
• survivor benefits

In the event a claim on one or more of these insurance policies is denied or you are offered less than what you believe you are owed, a personal injury lawyer can file a claim against the insurer on your behalf to negotiate a fair settlement or take the matter to trial if necessary.

Tort claims: If one person injures another person wrongly, through negligence or malicious intent, and the injured person suffers physical, emotional, psychological and/or financial damages, the injured person can sue for compensation.

For a tort claim to be actionable, you must prove:

• the defendant owed you a duty of care
• the standard of care the defendant owed was not met/breached
• injury or damage resulted from that breach of care

Tort claims can ask for pecuniary (calculable) damages such as medical expenses and past and future lost income, and non-pecuniary (non-calculable) damages such as for pain, suffering and loss of enjoyment of life. A cross-border personal injury lawyer can explain what types of damages you could include in a potential claim after speaking with you and reviewing your case.

Depending on where you were injured, there could be statutes that limit how long you have to make a claim or even limit your ability to make any type of claim. If you are seriously injured, it’s in your best interest to consult a personal injury lawyer as soon as possible after your accident.

How Can a Cross-Border Personal Injury Lawyer Help?

An experienced cross border accidents lawyer will review the specifics of your case and injuries to help determine which jurisdiction is likely to give you maximum remuneration.

Every jurisdiction will have its own statutory guidelines and limits for benefits and heads of damage. For example, Ontario’s SABS is generally superior to comparable state accident benefit plans. However, while the province has put a cap on non-pecuniary damages (currently approximately $400,000) many American states have either set a much higher cap or have no limit at all.

Sometimes, if your claims for benefits or tort liability are best pursued in different jurisdictions, co-counsel arrangements between lawyers in each jurisdiction may be beneficial. Gluckstein Lawyers gladly accepts co-counsel inquiries from our American colleagues and enters discussions to make such arrangements when a client’s best interests require this kind of international cooperation.

Contact Us for Your Free, No-Obligation Consultation.

Whether you’re a Canadian snowbird escaping winter weather, an American tourist who has come to see the beauty of the Great White North, or a resident of either country who crosses the 49th parallel for business or pleasure, if you suffer a serious injury on the other side of the border, Gluckstein Lawyers is ready to hear from you.

When you contact us for a free, no-obligation consultation, we listen to your story with great empathy and explain your options using clear and understandable language. If we believe we can help you access benefits and/or compensation for you or a loved one, we would be honoured to become your legal advocate and representative.

To learn more about what we can do for you, contact us today.