Negotiating a Settlement of your Motor Vehicle Accident Case

Maybe you're great at negotiating free entrees after a less-than-stellar serving experience at your favourite restaurant. Or maybe you received a standing ovation for your 'disgruntled customer' performance the last time your vet tried to overcharge you.

You might have the best poker face on this side of the Nevada border, but that's not going to help you when you're negotiating, one on one, with an insurance adjuster. Think about it. Even when you negotiated that below-asking price for your home, you weren't technically the one negotiating - it was your realtor.

Most people will never negotiate anything as important as their own personal injury case. On the other hand, insurance adjusters are specifically trained to negotiate with accident victims and conduct these negotiations day-in, day-out. That's true for both the accident benefit settlement and the bodily injury claim. How are you going to match their skill and expertise?

Preparation will certainly help. There are five key areas you should review before embarking on a negotiation with the adjuster:

1. The Strength of Your Case

You'll be better prepared to negotiate your settlement if you're aware of the strengths and weaknesses in your case. The evidence you collect to negotiate your bodily injury settlement should include:

-The Motor Vehicle Accident Report (available from the police station for a fee) -Witness Statements (witness names are on the Motor Vehicle Accident Report) -Photos of the accident site and your injuries -Documentation of your losses

Until you have collected and processed all of these items, you are not ready to negotiate a settlement of your case.

Once you have collected all of these items, prepare a cover letter summarizing what the evidence shows and calculating what damages you are seeking. In the letter, tell the adjuster how the accident happened and why it was the other driver's fault.

If there are aggravating factors that you think would impact a jury's assessment of the case, describe that in your letter. Remember to include a settlement number that is significantly higher than where you hope to arrive.

2. Determine the Case Law

The amount that a particular injury is worth (say a torn rotator cuff or soft tissue injuries in the lower back), depends largely on what other judges' written decisions have said it's worth.

Non-lawyers are at a distinct disadvantage when it comes to finding similar cases. Lawyers have access to on-line databases (WestlawCarswell or QuickLaw are two examples) which can make case law research a breeze. These are products available only by paid subscription. However, you may be able to use these or other case law services at your local law library. A free case law site that will provide some past case decisions to assist you is www.canlii.org.

Another source of case law that is available on-line to the general public is the Compendium of Damages Awarded in Personal Injury Actions across Ontario, January 1999 to November 2005. The document, which is now somewhat out of date, is available at: www.ccla.ottawa.on.ca/Practice_and_Procedure/Civil_Litigation/Damages/Damages_main.html.

If you have not done so already, after you have done your research, consider getting a consultation with a personal injury firm to run your numbers by a lawyer. Most good lawyers will provide this consultation for free.

3. Develop your Goal Number

In our office we would never go into a negotiation without a target in mind and neither should you. This number cannot be pie-in-sky. It has to be something you can justify based on the evidence you have gathered and the case law research you have done. If you can make the case to support your goal number, this is an important step towards getting ready for your negotiation.

4. Develop your Line in the Sand

One question to ask yourself when determining your goal number is: Where is your line in the sand? What is the number beneath which you will not go without a fight? You should also have this number prepared. If you have thought through your bottom line, you will have more resolve if the first round of negotiations does not go well and you are tempted to pack it in or take a low ball number.

Remember, if you settle your case the settlement is final regardless of what the future holds so be fair to yourself in developing this number. Again, this is true for either the accident benefit claim or the tort claim.

5. Remember - You Don't Have to Settle

It will also help to understand what your options are if you do not resolve the case with the adjuster. Will you sue on your bodily injury claim in small claims court? The monetary limit of Ontario Small Claims Court will increase from $10,000 to $25,000 as of January 1, 2010. You can run a small claims court trial on your own, or hire a paralegal to do it for you. Some lawyers may also handle a small claims case for you.

Out-of-pocket costs are generally quite low in small claims court. If you need doctors or experts to prove your case, however, you will have to get them to court and pay for their time. You will also have to attend small claims court for a pre-trial and the trial. Sometimes there are more than two attendances if there is an appeal of the verdict.

Another alternative is to simply wait and reopen negotiations in a few months, provided that the limitation period allows you that flexibility. Remember, in most cases there is a two-year limitation period in Ontario.

The adjuster may be more amenable to settling with you if your injury level remains constant over several months. The longer you remain injured, the more likely you are to secure a higher amount at a trial. The adjuster may also be concerned about new symptoms emerging. It will often be a smart strategy to try to negotiate again.

Obviously another option is to hire an experienced personal injury lawyer to start a lawsuit on your behalf. If you are considering this option, be sure to contact the lawyer at least four months before your limitation period expires if at all possible.


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Brenda Hollingsworth and Richard Auger are lawyers representing motorcycle accident victims in Ontario, Canada. Their law firm is Auger Hollingsworth, located in Ottawa. They are the authors of "An Injured Victim's Guide to Fair Compensation". To get free copy of this book, contact http://www.personalinjurottawa.ca ; email info@personalinjuryottawa.ca or call 613.233.4529.