A recent court decision in Ontario reinforces the complexity in cross-border accident cases involving Ontario residents injured in the United States. In the case of Orum v. Maksuta, 2021 ONSC 2974, an Ontario resident was seriously injured while in Michigan attending a charitable International Dragon Boat Race. While in Michigan, the Ontario resident was walking in a crosswalk, on a green light, and was struck by a motor vehicle, owned and operated by a resident of Michigan. Allegedly, the Ontario resident sustained a traumatic brain injury as a result of the accident.
The Michigan vehicle and driver that caused the accident had $100,000 of insurance coverage, which was considered insufficient insurance to fully compensate for the injuries. The Ontario resident retained a lawyer in Ontario. A lawsuit was commenced in Ontario court for both the underinsured motorist claim and the claim against the at-fault Michigan resident. While it is completely appropriate to sue the resident of Michigan in Ontario court. There are well established rules of conflict of laws and jurisdiction that must be carefully considered whenever a claim involves parties or events that span across state, provincial or national borders. In this particular case, the injured Ontario resident sought to obtain jurisdiction in Ontario against a Michigan resident with absolutely no connection to Ontario, and for a tort that did not occur in Ontario. Of course, there are occasions where lawyers try to obtain jurisdiction if there are distinguishing factors upon which to make an argument, or where a defendant consents. In this case, however, the Ontario resident should have also initiated a claim in Michigan to preserve his rights in the event that the jurisdictional argument failed in Ontario.
Unfortunately for the injured Ontario resident in this case, the court correctly sided with Michigan resident and found that jurisdiction was lacking. Because the Michigan Statute of limitations (time limit to commence a lawsuit) had also expired, the injured Ontario resident had no recourse against the at-fault Michigan driver. As such, the Ontario driver could not sue for or collect the $100,000 insurance limits available on behalf of the at-fault Michigan driver. Even if successful on the underinsured motorist claim, the Ontario resident lost out on $100,000 USD value of his case, as this would be deductible by the Ontario insurance policy. All in all, this was a very poor result for the injured Ontario resident, albeit a predictable outcome and a correct decision by the Ontario court.
In addition to the jurisdiction issues raised by this case, there are many other issues including first-party no fault benefits that must be considered and addressed in cross-border accident cases.
As this case illustrates, cross-border accident cases involving Ontario residents injured in the USA are complex. We handle many cross border accident cases every year, both with Ontario residents injured in the United States and with Americans injured while visiting Ontario. We are experienced and knowledgeable in this area of law, probably handling more of these cases than any other firm in Ontario. We have offices and active practices on both sides of the border, and over the years we have built a strong network of colleagues in the United States. Our firm is regularly consulted by lawyers in Canada and the United States for assistance when they have a cross-border accident case. If you or a loved one was injured in a cross-border accident case, call us to see if we can assist. Consultations are always free, and if we cannot help we may be able to direct you to an appropriate lawyer in the jurisdiction where your accident occurred.
Andrew Iacobelli is an experienced personal injury lawyer who established Iacobelli Law Firm with offices located in Ontario, Canada and Florida, U.S.A. Andrew restricts his practice to the representation of personal injury victims in claims involving serious injuries and wrongful death in Canada and the United States. Andrew is the author of "Are You a Canadian Injured in the United States? Claim the Damages and Insurance Coverage the Right Way".
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