Full disclosure is the best route

We go through life largely by trial and error, 

learning life lessons along the way.

Some life lessons can be very expensive, such as when we learn that if an investment opportunity seems too good to be true, it probably is.

So why have I needed to learn that lesson more than once?

But I digress.

One life lesson I wish my children— particularly my daughters— could learn by means other than by trial and error, is the importance of recognizing the interests of those we deal with.

I’m thinking of the particularly powerful interests of adolescent boys.

I bring that one up with potential clients when, after considering their particular circumstances, I recommend they hire a lawyer to handle personal injury claims.  

The obvious interest that my potential clients must consider is that I financially benefit from taking on personal injury cases.

I point out that my interest in recommending that they hire a lawyer may be in conflict with their best interests.

I do my best to identify and resolve that potential conflict of interest by recommending that each and every potential client interview other lawyers before making a decision of whether or not to get me involved in their claim.

I also bring it up often when advising my clients on whether or not a settlement offer is a what I consider a fair one.  

I point out that a lawyer acting on a percentage fee basis benefits from settling cases and, therefore, my interest in settling the case may be in conflict with their best interests.

I do my best to identify and resolve that potential conflict of interest by carefully reviewing the reasons for my advice and, as may be appropriate, recommending that my client obtain a second legal opinion.

I believe in full disclosure.

Unfortunately, in most cases, including those I’ve given, the law doesn’t require it.

Adolescent boys are not required by law to disclose to young ladies that they’ve got one thing on their mind and that therefore their interests may be in conflict with the interests of the young ladies they encounter.

Neither are personal injury lawyers required to disclose the potential conflicts I’ve identified.

One conflict of interest that gets under my skin the most, because in my view it results in the greatest unfairness in car crash settlements in this province, is the conflict of interest faced by insurance adjusters.

On the one hand, insurance adjusters dealing with crash claims owe a duty to injured victims to administer their entitlement to a basic set of “no fault” benefits in good faith.

I call that basic set of benefits “no fault” benefits because they are available to almost everyone who is injured in a crash, even if at fault.

When I say a “basic” set of rights, I mean it.  

In most cases, these “no fault” benefits are limited to only a portion of treatment expense.  

They do not include, for example, any compensation for pain and suffering, nor compensation for income loss apart from a meagre stipend of total temporary disability benefits.

On the other hand, when dealing with an injured victim who was innocent of fault in a crash, the exact same adjuster’s sole allegiance is to the insurance company to pay out as little as possible in compensation for the bulk of the claim which is over and above the “no fault” benefits, even if it is unfair.

It is this portion of a claim that is generally referred to as the settlement. 

An example of when those two interests conflict is when the adjuster is considering whether or not to authorize that additional two months of physiotherapy treatment.  

On the one hand, the adjuster owes a duty of good faith to authorize medically recommended treatment. 

On the other hand, how much is that adjuster impacted by the fact that by authorizing the additional care, the adjuster is adding credibility to the claim the adjuster will later be trying to settle for cents on the dollar?

In my view, insurance adjusters ought to disclose those conflicting interests to injured victims. 

Further, when telling injured victims what their claims are worth, essentially giving them legal advice, in my view insurance adjusters ought to encourage injured victims to obtain independent advice.

The reality is that, quite to the contrary, those conflicting interests are never disclosed and insurance adjusters actively discourage injured victims from getting independent advice.

I think that’s wrong.

I hope that by pointing out these conflicting interests I might be able to save some people from learning this particular life lesson the hard way.

 

This column is intended to provide general information about injury claims. It is not a substitute for retaining a lawyer to provide legal advice specifically pertaining to your case. 

Paul Hergott is a lawyer  at Hergott Law in West Kelowna. 

paul@hlaw.ca


 

Just Posted

RCMP hunt for suspect in West Kelowna bank robbery

Suspect used a note and fled bank Saturday with an undisclosed amount of cash

Community Leader Awards: Shelley Pacholok

The Kelowna Capital News honours those who give back in the community

International Arts Festival returns to Kelowna

Living Things is a month-long festival with live performances by artists from around the world

Legion bell prank hits sour note

Anger erupts after Summerland Legion member removes bell from Peachland Legion

Kelowna Art Gallery members’ exhibition offers variety of media

Encounters will be held from Dec. 2 to Feb. 3

B.C. wine industry fights for interprovincial trade in Supreme Court

Gerard Comeau likely never thought he would end up in the Supreme… Continue reading

PIGS bring Pink Floyd sound to Kelowna

Victoria band pays tribute to iconic British band on Feb. 10 at Mary Irwin Theatre

Letter: Another flagger dies; when will you slow down?

You have all seen our signs, trucks and my favorite our cones. Why don’t you slow down?

Kelowna-developed technology to be unveiled at Summerhill

Kelowna winery and tech company introduces new technology for phone or tablet

California couple name daughter after Revelstoke

Revy Elle Atashroo was born on Nov. 27. Her name honours the town her parents loved exploring.

VIDEO: Vancouver Whitecaps acquire star striker Kei Kamara

Kamara has 103 goals and 39 assists in 298 appearances over 11 Major League Soccer seasons

Warriors drop both weekend games

West Kelowna falls twice in BCHL action to Penticton and Trail

Smartphone pedometers underestimate steps, but valuable health tool: study

UBC researchers found the iPhone underestimated steps by 21.5 per cent

Most Read