Mr. Smith suffered serious injuries in a single vehicle collision involving a rental car owned by Enterprise Rent-A-Car. Mr. Smith was a passenger in the car and the driver of Mr. Smith’s vehicle held her own insurance policy with liability limits of $1 million. Enterprise brought a summary judgment seeking to be released from the action, because Enterprise could not be liable for any amount over $1 million.
McLeish Orlando successfully defended the motion on behalf of Mr. Smith.
On October 16, 2012, Justice McCarthy of the Ontario Superior Court of Justice ruled that Enterprise was required to remain a party to the action. Justice McCarthy agreed with the plaintiff’s position that the 2006 amendments did not modify the applicable principles of vicarious liability or joint and several liability. Specifically, his honour made the following findings:
- Legal liability for the accident and legal liability to pay the claim are “distinct considerations.”
- Section 267.12 of the Insurance Act clearly contemplates the “continuing legal exposure” of a lessor for vicarious liability.
- The plaintiff clearly had a right of action in vicarious liability against Enterprise and that right of action was not displaced by the operation of section 267.12.
- The provisions of the Insurance Act did not prevent the plaintiff from maintaining an action against Enterprise.
The Smith decision is significant in that it establishes that rental companies must remain parties to an action despite the availability of other insurance. This is especially important to plaintiffs as there will still be an owner’s insurance policy available if the driver’s insurer denies coverage during the litigation. This ensures that the plaintiff will not be left without an insurance company to satisfy a judgment.
The full text of the decision may be found online at CanLii Smith v. Smith, 2012 ONSC 5872 (CanLII).
Toronto Critical Injury Lawyer John McLeish, partner with McLeish Orlando LLP, has some important advice for parents of children involved in a traumatic event.
The third part of our blog series entitled: Developing and Funding a Plaintiff’s Personal Injury Practice.
In this post we will take a look into developing systems for document gathering and file development and its importance through the various stages of litigation.
File Development and Progression
In our office, we have dedicated a lot of thought and energy to developing systems for document gathering and file development. If you are running your law firm like a business you will realize that it is very important for files to move as quickly as possible through the various stages of litigation. This is what your client wants and this is also in your best financial interest as all or nearly all of your retainers will be on a contingency basis whereby you are not receiving fees or recovering your disbursements until the case in concluded. In the majority of injury cases, you will not be able to get an opinion on the prognosis for the future from a physician until two years has passed from the date of injury. You should plan to have your case at discovery at or near the two year anniversary of the incident to allow you to set the case down shortly after discovery.
The document gathering process in motor vehicle litigation is essential. The documents are essential to prepare the client for discoveries and avoid inconsistencies and credibility issues at trial. Productions also provide the building blocks necessary to obtain complete and consistent expert opinion. Continue reading
McLeish Orlando LLP congratulates Ian Perry, along with the rest of his team from Osgoode Hall Law School, for their recent victory at the 40th annual Gale Cup Moot. Ian summered with the firm in 2012 and will be returning as an articling student for 2013/2014.
The Gale Cup, one of Canada’s oldest moot competitions, takes place in Toronto at the Ontario Court of Appeal and is meant to simulate a fictional appeal from a recent decision of the Supreme Court of Canada. Judging panels are made up of presiding judges drawn from various jurisdictions across Canada. This year’s final panel included the recently appointed Justice Richard Wagner of the Supreme Court of Canada.
Here is the second part of our blog series entitled: Developing and Funding a Plaintiff’s Personal Injury Practice.
In this post we will take a look into the other areas of Personal Injury Legal Marketing.
Existing and Past Clients
Past and existing clients are an excellent source of referral business. When someone has been seriously injured in an accident, their friends, family, acquaintances and neighbours generally know about it. If one of these people subsequently suffers an injury in an accident they are likely to turn to the person that they know has gone through the same experience for guidance. If the person is still an existing client of yours and you have been doing a good job on their behalf, the referral should come easily. Past clients on the other hand are a different story. They are potentially a huge source of word of mouth business that grows over time as your practice expands, but too many lawyers neglect to maintain any form of relationship with past clients once they have completed their file. You need to create an opportunity to remind your past client of your name and address. Remembering this is an easy task for the first several years after file completions, but becomes increasingly difficulty after a number of years. Your past client may simply assume that you have changed address or that you may not still be practicing personal injury law and not want to bother you with a referral. Maintaining a data base of past clients who you send a firm newsletter or holiday card to is an easy task and helps to remind people that you are still alive, well and practicing personal injury law.
Health Care Practioners
In the same way that an injured person seeks out someone that they know who has been through an accident related injury, so to do people seek out community health care practioners who are known to have experience with treating accident victims. Local physiotherapists, occupational therapists, chiropractors and family doctors are commonly asked to recommend a lawyer. Developing a strategy to become one of the lawyers on their “list” is crucial to nurturing this type of referral business. Generally, these people are busy and are not likely to be interested in simply going for lunch with you. However, if you can provide a value added service to them by way of a lunch and learn seminar, you will have a much easier time getting their attention. Look for opportunities to write a paper that explains something new that will be important to their practice and then call the person in charge and ask if they would be interested in having you discuss your paper with their group. The recent changes to the auto insurance Regulations is a perfect example. Our office routinely puts on seminars and webinars for health care practioners where hundreds of people attend or watch online.
This is the first of a series of blogs on Developing and Funding a Plaintiff’s Personal Injury Practice.
Starting a plaintiff’s personal injury practice from the ground up is not an easy thing to accomplish for a number of reasons. First, there is a considerable amount of competition amongst the plaintiff’s personal injury bar. Attracting potential new clients to the firm is a challenge for all lawyers including ones who have been in the practice for many years and who have a number of established relationships. You will need a clear and focused marketing strategy if you intend to build a successful personal injury practice.
Second, most people who practice plaintiff personal injury have a large component of their cases in the area of motor vehicle litigation. The majority of serious personal injuries take place in the automobile. As most of you will know, Ontario has a unique set of no-fault rules and these rules change periodically. The practice is very paper intensive and you will need to develop various systems for document gathering and file development for your practice to flourish.
Third, you will need to develop a strategy for dealing with the significant financial demands of establishing your practice. Since nearly all plaintiff personal injury lawyers work on a contingent fee basis, you essentially have no choice but to do the same. This means that you will have to be prepared to wait to be paid for your services until the conclusion of a case while at the same time dedicating the resources necessary by way of time and disbursements to develop your files appropriately.
Lastly, once your firm begins to enjoy some success, you will inevitably begin to suffer growing pains as you try to attract and retain your firms most important assets; its people.
Marketing Your Practice
Standing out from the crowd is one of the most significant challenges you will face when trying to establish your personal injury practice. Marketing your practice will not happen overnight, but it can be accomplished if you develop a plan and remember to dedicate a certain number of hours to executing that plan each and every week (even when you start to get busy). It is easy to begin to feel overwhelmed with the work that you have now, but you always have to consider what is going to happen two or three years down the road if you are not opening at least as many files as you are closing.
Like most people, I religiously tracked (and continue to track) where each and every client got my name. I soon realized that all of my business came from one of four sources:
The lawyers and staff at McLeish Orlando wish everyone a safe and happy holiday season and best wishes for 2013.
The partners at McLeish Orlando recently spent some time thinking about the best ways to communicate our approach to cases, clients and colleagues. After much thought and discussion, we came up with a simple phrase that we think describes us well: “A Noticeable Difference.” These three words really distill who we are as a firm, our approach to critical injury law – and they express the total commitment to clients that is our trademark.
As part of this process, we also developed a video in which our managing partners talk about the firm’s values, its successes, and exactly how it is that we make a noticeable difference in our clients’ lives. In the video, all three partners – John McLeish, Dale Orlando and Patrick Brown – discuss the difference between “personal” and “critical” injuries, and how they define a fair settlement and help their clients achieve it. They talk about what initially drew them to critical injury law, what continues to drive them to excel on their clients’ behalf, and the difference they make practicing law in a field that literally puts lives back together.
If you’re not familiar with McLeish Orlando, the video is a great introduction to all the things that make up our “noticeable difference.” And for those who already know our firm, you’ll see that it’s a reaffirmation of our commitment to advocating for our clients, and helping critically injured people lives their lives with independence and dignity.