In Nery v Nery, (2012) A.J. No. 792 (Q.B.)(Q.L.) Nery was told by an Allstate adjuster named Ms. Molgian that there was a “government law” which stated she could not recover more than $4000 for her injuries. She believed that and did not question it. She did not talk to a lawyer because a friend told her that the lawyer would take a portion of her recovery and she would receive less than the $4000 she would be entitled to.
Ms. Nery had a limited comprehension of English. She signed a release and was told that the total amount of settlement in the amount of $8567.80 was made up of $4400 for general damages and $4176.80 for loss of wages. After signing the release, Ms. Nery brought a lawsuit. She did this after speaking with a lawyer. The court set aside the release because Ms. Nery was taken advantage of by the insurance adjuster. In the judgement, the judge writes:
- Ms. Moligian’s offer was on the basis that the Minor Injury Regulation applied to Ms. Nery’s injuries. Ms. Nery submits that it would not apply to all her injuries – in particular the possible thoracic outlet syndrome, the depression and the lost tooth. The settlement offer ignored the possibility that these injuries, one of which at least, thoracic outlet syndrome, can be serious and can attract very significant damages.
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25 In my view a settlement which under-compensates calculable loss of earnings by half, ignores the medically recognized possibility of a very serious injury not affected by the Minor Injury Regulation, is finalized despite significant uncertainty as to whether the injured party’s condition has stabilized and as to whether there has been a loss of future earning capacity, is grossly unfair and improvident.
26 Ms. Nery did not have any independent legal advice. Correspondence from Ms. Moligian indicated that if she did not understand the position Allstate was taking with regard to the Minor Injury Regulation she should seek legal advice. She did not do so.
27 Ms. Nery’s evidence is that Ms. Moligian told her there was a “government law” that she could not recover more than $4000 for her injuries. She understood that. She did not question it.
28 She did speak to an acquaintance who she understood to have considerable business experience. He told her she should talk to a lawyer. She told Ms. Moligian of that recommendation and was told, according to her evidence, that a lawyer would take a portion of her recovery, which would not, because of the “government law”, be more than $4000 in any event. She understood Ms. Moligian’s advice to be that talking to a lawyer would result in her receiving a lesser recovery. She took this as advice against talking to a lawyer whether it was intended as such or not.
If your insurance adjuster tells you that your injuries are subject to the Minor injury Regulation, you need to get specific advice from a competent experienced personal injury lawyer before you settle your case. Your personal injury lawyer is interested in maximizing the amount of recovery you can expect to receive for your injuries. Your personal injury lawyer is on your side and your interests are aligned. You should never take the advice of the insurance company alone. Speaking with a qualified personal injury lawyer could mean the difference between a four figure and a six figure settlement!
