Trial Summary: Green et. Al. v State Farm
Plaintiffs’ Counsel: Russell J. Howe | Heikki Cox-Kikkajoon
Defendant Counsel: Michael W. Smith
Ms. Green and Mr. Van Eik were common law spouses who were injured in a car crash in Florida in November of 2002. Ms. Green suffered soft tissue injuries that eventually developed into chronic pain syndromes, and Mr. Van Eik suffered a knee injury that eventually required a knee replacement. They sued the at fault driver in Florida and recovered $100,000.00 each, the limits of the policy carried by the at fault driver. The plaintiffs then retained our office to assist them with their accident benefits and to pursue a claim against their own insurer, State Farm, for the shortfall in their losses under the OPCF 44R- Family Protection Coverage.
As the parties could not reach a settlement the matter proceeded to a trial which lasted a little over two weeks in May of 2009. It was a hotly contested and ably defended jury trial with both sides calling significant medical and economic expert evidence as well as a number of lay witnesses. In the end the jury awarded Ms. Green $682,000.00 and Mr. Van Eik $177,500.00.
Important legal issues were determined by Mr. Justice Boswell during the trial as well. The question of whether or not the plaintiffs’ case would have to satisfy either the Ontario threshold or the Florida threshold was central to the case. The OPCF 44R dictated that issues of “liability” would be determined by the law where the collision took place, in this case the law of Florida. The plaintiffs’ counsel submitted that the Ontario no fault scheme was a liability matter and that it should not apply to these plaintiffs. The defence took the position that the Ontario no fault scheme, particularly the threshold and deductible, were not a liability matter, but rather a damages matter, and in the alternative that if the Ontario threshold provision did not apply the Florida Threshold would then apply. The defence took the position that Ms. Green’s injuries would not pass the threshold and that issue should remain before the court. At the time this case was argued there was no decision in Ontario under Bill 59 determining whether or not the threshold and deductible were liability matters for the purposes of an out of province application of the OPCF 44R.
The plaintiffs’ counsel was successful in convincing the trial judge that the cases decided under Bill 164 on this issue remained applicable under the Bill 59 scheme despite some changes in the wording between the two systems. In addition, plaintiffs’ counsel was able to present the trial judge with a comprehensive review of the law regarding the FLA threshold. In Florida an at fault driver only receives the benefit of the threshold if their own policy has Personal Injury Protection coverage. The plaintiffs’ counsel was able to prove that the at fault driver in the accident did not have such coverage, and thus since this defence was not available to the at fault driver, it also was not available to State Farm in defending the OPCF 44R claim.
Justice Boswell concluded that Mr. Green did not have to face the Ontario or Florida thresholds and received a substantial jury verdict.