If you are a Canadian injured in the United States, your personal injury claim may be handled very differently from a claim arising in British Columbia. Depending on where the accident occurred, you may have the right to bring a claim or lawsuit in the United States, recover damages under U.S. law, pursue multiple insurance policies, and negotiate U.S. medical bills and insurance liens as part of the settlement.
A recent case our firm handled for a B.C. resident provides a good example of how the process can work.
A B.C. Resident Hit by a Vehicle in California
Our firm represented a B.C. resident who was hit by a pickup truck in California while walking across the street. The driver of the truck was making a left-hand turn, probably travelling at only 10 MPH, but our client was thrown several feet and landed on the back of his head.
He suffered a significant head injury, three broken ribs, a broken upper arm, and a scalp laceration that required several staples to close. He was transported to the hospital by EMS and spent three days in the ICU, followed by two more days in the hospital. His U.S. medical bills were more than $150,000 USD.
Investigating the Accident and the Available Insurance
As soon as we were retained, we collected the medical records, bills, and police records, including the police body-worn camera footage.
The footage showed the police interaction with the defendant driver, who was aggressive and altogether an unlikable individual. We identified early that he would likely make a horrible impression as a witness at trial, particularly in contrast to our client, who was an extremely likeable grandfather.
During our investigation, we discovered that the defendant driver was an employee of a window company. Although he was not driving a company vehicle, he was coming from a job site.
This was important because it gave us a basis to pursue the employer and its insurance coverage in addition to the driver’s personal automobile insurance. The employer’s insurance provided an additional $1 million USD in coverage over and above the defendant driver’s policy.
This is one reason identifying every potentially responsible party and every available insurance policy can be so important in a serious U.S. injury case.
Letting the Insurance Company See Our Client
Because this case presented a unique situation in which we realized our client came across much better than the defendant driver, I had our client sit for a video interview with the insurance adjuster and allowed the adjuster to ask any questions they wanted.
The interview was conducted by Zoom, with me, our client, and the adjuster taking part.
This allowed our client to answer questions from the comfort of his home in British Columbia and allowed me to ask follow-up questions and cover important material the adjuster overlooked.
Before the interview, I fully prepared our client on the topics the adjuster was likely to cover and helped him articulate how the accident had affected his life.
I also provided the insurance adjuster with the body-worn camera footage of their insured so they could see his personality, along with our client’s medical records.
Because the head injury was an important part of the claim, we also sent our client to a neurologist for extensive testing and a full report addressing the potential long-term effects of his closed-head injury.
The $1 Million Policy-Limits Demand
After the interview, I sent the insurance company a demand letter giving it thirty days to tender its full $1 million policy limit.
This type of demand can be particularly important in a serious U.S. injury case.
Insurance companies in California have a duty to act in good faith toward their insureds when evaluating settlement opportunities. When liability is reasonably clear and the probable value of the claim exceeds the available policy limits, an insurer that unreasonably refuses an appropriate opportunity to settle can expose itself and its insured to consequences beyond simply paying the policy limit.
In this case, we believed it was clear that a California jury could award substantially more than $1 million. The insurance company had been provided with the medical evidence, information concerning the injuries, the neurologist’s evaluation, an opportunity to interview our client, and the body-worn camera footage of its insured.
On the 29th day, the insurance company offered the full $1 million USD policy limit to settle the claim.
Our client accepted.
Dealing With More Than $150,000 in U.S. Medical Bills
Obtaining the settlement was not the end of the case.
We then turned our attention to more than $150,000 USD in outstanding U.S. medical bills.
Before travelling to the United States, our client had purchased travel medical insurance. We worked with the travel insurance company so that it would address the U.S. hospital bills.
The travel insurer ultimately paid approximately $48,000 USD to resolve more than $150,000 in outstanding medical charges. It then sought reimbursement of the $48,000 it had paid from our client’s personal injury settlement.
We negotiated that reimbursement claim as well.
The travel insurance company ultimately agreed to accept approximately $17,000 USD from the settlement and forgive the balance of its reimbursement claim.
That negotiation put approximately another $31,000 USD into our client’s pocket.
The Final Result
The gross settlement was $1 million USD.
After payment of our 33% legal fee, the negotiated travel-insurance reimbursement, and the cost of the neurologist’s testing and expert opinion, our client received just over $600,000 USD.
For a Canadian injured in the United States, the amount ultimately recovered can depend on far more than simply proving that the other driver caused the accident. In this case, some of the most important work involved:
- identifying additional insurance coverage connected to the driver’s employment;
- obtaining and reviewing police body-camera footage;
- understanding how the defendant and our client would present to a jury;
- documenting the long-term consequences of the head injury;
- creating a meaningful policy-limits settlement opportunity for the insurer; and
- negotiating the U.S. medical expenses and the travel insurer’s reimbursement claim after settlement.
Those issues are very different from the way most personal injury matters are now handled in British Columbia.
Can a Canadian Sue After Being Injured in the United States?
Yes. A Canadian resident injured in the United States can bring a personal injury claim against the person or company responsible for the accident. In many cases, a Canadian plaintiff may also be able to file the lawsuit in U.S. federal court under diversity jurisdiction when the defendant is a U.S. citizen and the amount in controversy exceeds $75,000 USD.
Federal court can be particularly useful in cross-border cases because the injured person does not need to be a resident of the U.S. state where the accident occurred in order to bring the claim. The substantive law of the state where the accident occurred will generally still govern the personal injury claim, even when the lawsuit is filed in federal court.
Which court is available, which state’s law applies, and what damages can be recovered depend on the facts of the particular case.
Do I Need a U.S. Lawyer If I Am Injured in the United States?
A serious U.S. personal injury claim should generally be evaluated under the law of the state where the accident occurred. Issues such as limitation periods, available damages, insurance coverage, medical liens, bad-faith law, and court procedure differ significantly from one state to another.
Our practice focuses on representing Canadians injured in the United States and handling the cross-border issues that arise when the injured person lives in Canada but the accident and insurance claim are in the U.S.
What Happens to U.S. Medical Bills After a Personal Injury Settlement?
They should not simply be ignored.
U.S. medical providers, health insurers, travel insurers, government programs, and other entities can sometimes have reimbursement or lien rights against a personal injury recovery. Determining who must be repaid — and whether those amounts can be reduced — can substantially affect how much money the client actually receives.
In the case described above, negotiating the medical charges and travel insurer’s reimbursement claim was an important part of maximizing the client’s net recovery.
About the author: Greg Lauer is a B.C. and U.S. lawyer whose practice focuses on representing Canadians injured in the United States.
The result described above is based on the particular facts of one case. Past results do not guarantee similar outcomes in other matters. The law and available insurance coverage vary depending on the state and the circumstances of each accident.