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Can Ontario and Alberta Reduce Motorcycle Fatalities from 2020 Peaks?

The COVID-19 pandemic has led to a multitude of unpredictable trends and events, including some – like drastic spikes in motorcycle fatalities in Alberta and Ontario last year – that impact personal injury lawyers. Alberta reported 21 deaths in 2020, up from just 11 in 2019 and 16 in 2018. The Alberta Motorcycle Safety Society (AMSS) believes the 90 per cent increase was caused in part by sweeping COVID restrictions.

“All of the training centres shut down, and as well, the government structure for registering your bike and getting your licence all either shut down or were really, really hard to get into,” said Marty Forbes of the AMSS to the Edmonton Journal. “Motorcycles were the last priority and of course you only have half a year to do it, if that.”

Neinstein Personal Injury Lawyers has represented seriously injured accident victims, including victims of motor vehicle collisions, for more than 50 years. During that time, we have come to understand the unique risk factors associated with motorcycle accidents, including the relatively little protection motorcyclists have compared to other road users.

“Motorcycle crashes peak in the summer as warmer weather and conditions bring more riders onto the road,” the RCMP explained in a recent news release. “Motorcycles are smaller than passenger vehicles, harder to see and do not offer the protection of a frame, seatbelt or airbags.”

In Ontario, the OPP reported 42 fatalities on roads they patrolled last year, up from just 27 fatalities in 2019.

Seventy per cent of the fatal accidents in Alberta were single-vehicle collisions believed to be caused by speeding, stunting, and loss of control, behaviours that would have been discouraged in training centre sessions. The hope now is that fatal accidents in both Alberta and Ontario will return to pre-pandemic levels in 2021. In order for this to happen, all drivers must adhere closely to the rules of the road.

“Obeying the speed limits, riding safely, excessive speeds and sudden lane changes, sudden stops things like that can make it very difficult for other drivers to perceive and react to a motorcycle,” said Const. Melissa Rancourt of the Greater Sudbury Police Service to CTV News Northern Ontario in May. “It also makes it very difficult for the rider to react to changing road conditions, such as debris or other traffic.”

Other motorists should be particularly aware of motorcycles in intersections and should always leave a following distance of at least three to four seconds behind motorcycles on highways.

Contact Neinstein Personal Injury Lawyers

If you or a member of your family has been injured in a motorcycle accident, contact Neinstein Personal Injury Lawyers today to schedule a free, no-obligation consultation with an experienced motorcycle accident lawyer. Our team will happily review your case, lay out your options, and explain your next steps.

 

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Notice of Personal Injury Claim Given After Statutory Notice Period Expired Allowed to Proceed by Superior Court

When a person wishes to file a personal injury claim in Ontario, they must do so within a certain time period. This ‘limitation period’ varies depending on the type of injury or accident in question. In a standard personal injury claim, such as against an at-fault driver in motor vehicle accident, the plaintiff generally has two years to submit notice of their intention to sue. In slip and fall claims, new laws in Ontario dictate that plaintiffs must submit notice within 60 days. In claims against municipalities, the notice period is generally just 10 days.

However, there are exceptions to these rules. In Graham v. City of Toronto, Ontario’s Superior Court of Justice recently allowed a personal injury lawsuit against the City of Toronto to proceed, even though notice wasn’t filed until nearly three months after the accident. Here’s what happened, according to reporting from Law Times:

In January 2018, the plaintiff tripped on a pothole in a pedestrian crosswalk. She sustained serious injuries, including to her neck and right shoulder, elbow, arm and hand. In April 2019 she underwent surgery to address some of her injuries, and in May 2019 she stepped down from her job to focus on treatment and recovery. She continues to require daily exercise to manage pain from the accident.

The plaintiff submitted her notice of claim to the city in March 2018. The city then filed a motion for summary judgement because the plaintiff had breached the ten-day notice period. The court decided in the plaintiff’s favour for several reasons.

First, it rejected the defendant’s assertion that the notice period had been breached. The plaintiff, the court accepted, was initially unaware of the brief limitation period required for claims against municipalities. Additionally, the plaintiff’s doctor had at first informed her that her injuries would heal with treatment; she did not choose to pursue a claim until it became apparent that her recovery would take significant time and effort.

The court also rejected the defendant’s claim that it was prejudiced by the delayed notice. The city claimed that the delay made it impossible to examine or measure the pothole before it was repaired; a forensic engineer concluded that photographs of the pothole were all that was required to perform an adequate inspection.

Although a personal injury claim submitted after a Notice Period can be difficult to litigate, it is always a good idea to consult with a personal injury lawyer about the specifics of your case. If you or a member of your family has been injured, reach out to Neinstein Personal Injury Lawyers today to discuss your options.

 

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Military Reports Highlight Negligence at Long-Term Care Homes

Ontario’s long-term care system has faced fierce criticism from residents’ families, personal injury lawyers, medical experts, the federal military, and opposition politicians throughout the COVID-19 pandemic. At least 3,778 residents have died from the virus since March 2020, almost all during the first two waves of infections. Class action lawsuits against numerous long-term care facilities and their owners and operators allege that negligence contributed to at least some of these deaths.

The Canadian Armed Forces were called in to provide medical and humanitarian aid to seven long term care homes last spring. Reports detailing the military’s time at these facilities were submitted to Ontario’s independent Long-Term Care COVID-19 Commission, which released its summary of the province’s response last month.

The reports concerning two facilities – Downsview Long Term Care Centre and Hawthorne Place Care Centre, both in North York – suggest not only that negligence occurred during the COVID-19 outbreaks, but that it contributed to the deaths of non-COVID patients and that it likely preceded the pandemic. The findings have fuelled calls for criminal investigations, and may convince more personal injury lawyers to investigate negligence at long-term care homes.

Vivian Stamatopoulos, an advocate for the families of long-term care residents, told the CBC that action is needed to address the military’s claims.

“I don’t think we’ve ever had a situation with such glaring evidence of widespread neglect contributing to death and yet nothing has been done,” she said. “I think we have more than enough evidence to pursue charges. Why hasn’t that very damning information that exists been handed over to the police departments.”

Representatives of both facilities issued statements denying the allegations to the CBC.

“Based on the experience of our staff at Downsview, our own facility records and our co-operation with the Office of the Chief Coroner, it is false and misleading for anyone to claim that 26 deaths at Downsview Long Term Care Centre were due to dehydration,” said James Balcom, Chief Operating Officer of GEM Health Care Group, which owns the facility.

“At no time were issues raised relating to mold, fungus, dehydration, malnutrition or concerns related to the home’s future management, or success,” said Nicola Major, a spokesperson for Hawthorne Place. “All concerns that were raised were addressed immediately.”

Whether or not the military’s reports lead to criminal charges is a matter for the province’s Coroner’s Office to decide. Personal injury lawyers, however, don’t have to wait – many have already initiated legal action against long-term care homes over their response to COVID-19, and the reports may inspire further action related to other forms of negligence.

If a member of your family has been affected by negligence at a long-term care facility, contact Neinstein Personal Injury Lawyers today to discuss your legal options.

 

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When are Construction Companies Liable for Accidents in Construction Zones?

Warm weather means construction season in Ontario, which can cause complications for drivers. Not only can road construction cause traffic and delays, but it can also impact road safety for pedestrians, cyclists, and motorists, as car accident lawyers know. With that in mind, the Ontario Trial Lawyers Association (OTLA) recently shared a blog outlining several ways that construction companies can share liability for motor vehicle injuries.

Under Ontario’s no-fault auto insurance system, the right to sue for damages related to motor vehicle accidents is restricted. Drivers involved in single vehicle accidents and drivers who are at-fault for multiple vehicle accidents generally don’t have the ability to seek compensation through civil action. Drivers who are not at-fault in multi-vehicle accidents do have the ability to sue the at-fault driver, but this process can take longer than seeking accident benefits through an insurance provider.

In certain circumstances, not-at-fault drivers may also initiate legal action against the “occupier” of the road, generally a municipality or the province. Under Ontario’s Occupier’s Liability Act, occupiers are mandated to take certain measures to ensure people on their property are reasonably safe. When construction season rolls around, construction companies hired to perform maintenance on public roads also become occupiers, meaning they open themselves up to liability.

The OTLA Blog lists the following ways that a construction company can fail in its obligation to keep roads safe:

Leaving hazardous debris on the roadway

Failing to place proper signage

Failing to use proper hazard warnings, such as pylons

Allowing traffic to resume normal speed when it is unsafe to do so, such as in areas of uneven pavement or reduced lane availability

Failing to have a worker directing traffic, or failing to have a competent worker doing so

Failing to hire competent heavy machinery operators

 

Subcontractors can also be held liable for similar reasons, and roadway owners can be held liable for hiring incompetent contractors.

The blog provides the following example:

“If an oncoming car swerves into your lane of travel to avoid construction debris, both that vehicle and the construction company could be held liable. This is advantageous in the context of litigation because it means that two insurance policies may be available.”

In other words, if you’ve been involved in a car accident in a construction zone, you may have more avenues to pursuing compensation than a driver injured in a non-construction zone accident. Our team of experienced car accident lawyers can provide further clarity.

Neinstein Personal Injury Lawyers has represented seriously injured Ontarians for more than 50 years. Contact us today to schedule a free consultation with our team of car accident lawyers.

 

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BC Has Adopted No-Fault Auto Insurance. Is that Good or Bad for Drivers?

On May 1, the Insurance Corporation of British Columbia (ICBC) launched its no-fault auto insurance program. Though heralded by ICBC president and CEO Nicholas Jimenez, some stakeholders believe no-fault systems limit legal options and compensation for not-at-fault drivers.

What is No-Fault Auto Insurance?

Broadly, no-fault auto insurance means that each party involved in a motor vehicle collision will be indemnified by their own insurance provider regardless of who, if anyone, is at-fault for the accident. So, if a driver causes a three-vehicle collision, they are not responsible for compensating the other drivers; that responsibility will fall to the other drivers’ insurance companies.

In addition to British Columbia, no-fault auto-insurance is used by Ontario, Quebec, Nova Scotia, New Brunswick, and Prince Edward Island. Alberta is also considering a move to this system.

What are the Benefits of No-Fault Auto Insurance?

The primary benefit touted by the ICBC is an immediate reduction of premiums. For several years, British Columbia has had the highest average annual insurance premiums in Canada; the shift to no-fault insurance is expected to save drivers an average of $400 per year.

“A big part of the savings in the new system is the fact that we won’t be spending hundreds of millions on litigation,” Jimenez explained.

The no-fault system can also be more efficient, at times. In lieu of drivers suing each other for compensation, the ICBC will now dole out benefits based on the severity of injuries and auto damage. Disputes over benefits amounts will also be resolved by the ICBC.

Are There Negatives to No-Fault Insurance?

Many auto insurance experts, including some personal injury lawyers, believe no-fault insurance makes life more difficult for motor vehicle accident victims. They believe this for several reasons:

  • The option for not-at-fault drivers to launch a civil action is severely curtailed
  • Compensation is generally capped for both minor and traumatic injuries
  • In the unique case of the ICBC’s no-fault scheme, there is concern that the insurance provider may not be fully impartial in accident benefits disputes

In other words, even though no-fault auto insurance guarantees a certain level of benefits to accident victims, seriously injured victims may have access to significantly less compensation than before.

Also, there is no guarantee that no-fault insurance will lead to permanently lower premiums. After all, Ontario has struggled for years to reduce auto insurance costs; in 2016, the then-Liberal government resorted to slashing benefits, and even that hasn’t curbed premium increases.

Contact a Personal Injury Lawyer 

Even though Ontario uses a no-fault insurance system, a personal injury lawyer can still help accident victims get access to the benefits and compensation they deserve. Contact us today to schedule a free, no-obligation consultation if you’ve been involved in a motor vehicle accident.

 

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Looking Back at the Women in Law Summit

On February 18, Neinstein Personal Injury Lawyers was proud to be the title sponsor of Canadian Lawyer’s Women in Law Summit, an event geared to recognize and celebrate women in the legal profession. Rose Leto and Sonia Nijjar, both personal injury lawyers at Neinstein, served as co-chairs and delivered a presentation titled ‘Opportunity in Crisis: The Power of Female Leadership.’

As it has in many areas of our society, the COVID-19 pandemic exasperated existing inequalities in the legal field.

“Women are lawyering in a home environment where they are still the default parent – the one to manage the children, to juggle childcare, to deal with the homeschooling,” Leto told Canadian Lawyer. “To have the burdens of the household placed upon you while finding a way to keep your day job and be competitive and marketable in a legal environment is super challenging.”

In a field where having one’s voice and opinions heard can be a struggle at the best of times, and where marketing and networking opportunities are traditionally geared towards men, the pandemic has reinforced the obligation that experienced women in the legal profession have to mentor their younger counterparts. But, as Nijjar told Canadian Lawyer, women entering the field also need sponsorship: “People who will go to bat for you, who will make space for you or show you how to make space and have ample space available to share with you.”

“It’s a challenge not only other women in the law have to be alive to – women who have obtained leadership or other opportunities that give them that platform – but men too,” Nijjar continued. “We need allies everywhere.”

In their presentation, Leto and Nijjar recognized notable female leaders from around the world and emphasized that leadership styles prioritizing empathy, data, trustworthiness, and resilience are critically needed to counterbalance male leadership styles rooted in aggression and bravado. They also noted that these positive traits are perfectly suited to the legal profession; many Toronto personal injury lawyers represent diverse and vulnerable client populations that benefit from empathy and recognition of the importance of inclusion and diversity.

“We wanted to speak out, to collaborate to share our experience and hear theirs and talk about things that worked and ways we could all work together towards meaningful change,” Leto said. “It’s a unique event and the hope is that the spirit of it continues beyond the conference.”

Neinstein Personal Injury Lawyers has represented seriously injured accident victims from across Ontario for more than five decades. If you or a member of your family has been injured, contact us today to schedule a free, no-obligation consultation.

 

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Experts Predict Surge of E-Scooter Use. Will Injuries Follow?

Over the past several years, e-scooters – those small electric transportation devices that zip around city streets at about 25km/h – have infiltrated Canada’s public transit landscape. Bird Canada, the Canadian division of one of the world’s largest e-scooter operators, currently runs pilot programs in Calgary, Ottawa, and Edmonton; the City of Windsor will launch its own program this summer, and in Toronto privately-owned e-scooters have become a common sight.

Ontario first legalized e-scooters in early 2020, believing they would ease downtown congestion, boost the economy, and take pressure off of overflowing public transit systems. Personal injury lawyers expressed concern. In the United States, where ridership increased from 38.5 million journeys in 2018 to 86 million in 2019, emergency room doctors reported serious head injuries in riders unfamiliar with the vehicles. In Calgary, one of the first Canadian cities to welcome Bird Canada, e-scooter accidents caused more than 500 emergency room visits from just July to November 2019, according to the Globe and Mail.

Specifically, personal injury lawyers were concerned about the following road safety issues:

  • Speed: e-scooters travel too fast for sidewalks and too slow for many streets. Would widespread adoption in busy downtown cores create safety challenges for pedestrians and drivers alike?
  • Rough roads: due to annual temperature fluctuations, Canadian roads are uniquely susceptible to potholes and large cracks. How would Bird, a California-founded and -based company, prepare?
  • Lack of training: Bird’s e-scooter pilot projects operate similarly to municipal bike share programs, meaning users can simply grab a scooter and go – no training required. Should untrained riders be using such swift vehicles?
  • Walking and cycling hazards: unlike municipal bike share programs, when a user is done with their scooter, they can simply ditch it at their point of arrival, which could lead to scooters being strewn on sidewalks or in bike lanes, creating safety hazards.

In Calgary, Bird Canada has gone so far as to fine people for improperly parking their scooters.

“We actually fine people and ban them from the service if they don’t park properly after one or two infractions – so that’s at the extreme level,” CEO Stewart Lyons told TVO.

Will that be enough to prevent e-scooter injuries in the coming months? That seems unlikely, especially considering the expected wave of adoption as the COVID-19 pandemic subsides. In December 2020, Kersten Heineke of the Center of Future Mobility told CNN to expect more and more e-scooter riders in 2021 and beyond.

“[The pandemic] is a big driver, because public transit is not considered safe and not everybody has access to a private vehicle,” Heineke said. “Folks have opted more and more towards micromobility.”

Considering the imperfect state of pre-pandemic road safety for Toronto’s vulnerable road users, it wouldn’t be a surprise to see an uptick in e-scooter accidents as vaccinations increase and the city gradually opens up. Personal injury lawyers will be ready.

 

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Vaccines are Overwhelmingly Safe – but Recipients Still Need Protection

The chances of being seriously injured by a COVID-19 vaccine are astronomically rare, less than one in a million, according to the Public Health Agency of Canada (PHAC). And yet, with tens of millions of doses expected to be administered over the next several months, some complications will arise, and individuals who experience serious injuries may choose to seek compensation for the damages they have incurred.

In December, the federal government announced that it would soon launch a national vaccine injury support program providing no-fault support to any vaccine recipient that experienced serious adverse side-effects.

“The program will ensure that all Canadians have to have fair access to support in the rare event that they experience an adverse reaction to a vaccine,” the PHAC said in a news release at the time.

Since then, no new details about the program’s rollout have emerged, according to a CTV News report. The PHAC said in a recent statement that a call for proposals to administer the program was closed in late February and that it is “currently evaluating the proposals received.”

Vaccine injury support programs serve two important purposes. First, they protect vaccine recipients who experience serious adverse reactions. Even though the chances of experiencing negative side effects are miniscule, ‘vaccine hesitancy’ is a serious problem in Canada; a support program addressing the one-in-a-million chance of complications could mitigate that problem.

Second, no-fault vaccine injury support programs are designed to protect vaccine manufacturers from the threat of litigation. Vaccines are a critical tool in the fight against the COVID-19 pandemic, and the last thing Canada needs is for vaccine manufacturers to limit supply over the threat of class action lawsuits.

Today, Canada is the only G7 nation without a national no-fault vaccine support fund. (Quebec has its own program).

In the United States, claims for compensation due to vaccine-related injuries are handled through the Countermeasures Injury Compensation Program (CICP). In the UK, individuals who prove that they were disabled as a result of the COVID-19 vaccine can access up to £120,000 through the country’s Vaccine Damage Payments Scheme (VDPS).

Both of the above programs have flaws. The United States’ CICP limits compensation to only the most seriously injured claimants. It also carries a high burden of proof and strict time limits for filing claims. The UK’s VDPS has a complex application process and rejects upwards of 65 per cent of claims. But both are preferable to the Wild West approach currently in place in Canada.

As one personal injury lawyer told CTV News: “There is no perfect program. There is no perfect system, but I truly believe that a vaccine injury compensation program with a fund is – regardless of it not being perfect – something is better than nothing for these individuals.”

At Neinstein Personal Injury Lawyers, our team is committed to helping seriously injured accident victims secure compensation to help fund their recoveries. Contact us today to learn more about how we can help.

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Dirt Bike Injury Leads to Accident Benefits Dispute

An accident benefits dispute, Beaudin v. Travelers Insurance Company of Canada, which was decided in February by an Ontario Divisional Court three-judge panel, shows how complex and technical some insurance claims can be. Indeed, the claimant’s ability to receive benefits hinged largely on the interpretation of a single sentence of Ontario’s Off-Road Vehicles Act.

What Prompted the Accident Benefits Dispute?

In July 2017, Michael Beaudin was catastrophically injured while competing in the Rockstar Energy Motocross Nationals at Gopher Dunes, a closed course in Norfolk County in Southern Ontario. The competition was organized by a promotions company and sponsored by Canadian Motorsport Racing Competition.

Beaudin sought accident benefits though his auto insurance provider, Travelers, who denied the claim, stating that the dirt bike was not an “automobile” for the purpose of determining benefits.

What Did the LAT Initially Decide?

Auto insurance and accident benefits disputes in Ontario are generally handled by the province’s Licence Appeal Tribunal (LAT). When Beaudin v. Travelers first came before the LAT, the adjudicator ruled in favour of the insurance provider.

According to Canadian Underwriter, at the heart of the dispute was the question of whether Beaudin’s dirt bike was required to be insured on the day of the accident. While Ontario’s Off-Road Vehicles Act clearly states that “no person shall drive an off-road vehicle unless it is insured under a motor vehicle liability policy in accordance with the Insurance Act,” the dirt bike may have fallen under one of four exemptions: “off-road vehicles driven or exhibited at a closed course competition or rally sponsored by a motorcycle association.”

The adjudicator applied the “last antecedent” rule to that exemption and found that the term “sponsored by a motorcycle association” only applied to the word “rally” and not the term “closed course competition.” According to this interpretation, Beaudin’s dirt bike would not be required to be insured.

Beaudin Appeals

 Beaudin appealed the LAT’s decision, and in 2019 the LAT’s vice-chair overturned the ruling, finding that “sponsored by a motorcycle association” should have also been applied to “closed course competition.”

In backing up the vice-chair’s decision, the Divisional Court stated: “It must always be remembered that the ‘rules’ of statutory interpretation are not rules in the ordinary sense of having some binding force. They are aids to construction, presumptions or pointers. Not infrequently, one ‘rule’ points in one direction, while another in a different direction.”

As it stands, Beaudin is owed accident benefits by his insurer.

Contact Neinstein Personal Injury Lawyers

For more than 50 years, Neinstein Personal Injury Lawyers has helped seriously injured accident victims access compensation for the damages they have incurred. This work has included helping resolve numerous accident benefits disputes. If you’re involved in a dispute with your insurer, contact us today to learn how we can help.

 

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Why do Insurance Providers Survey and Record Claimants?

Insurance is designed to protect policy holders from financial loss. There are many different kinds of insurance. Homeowners insurance helps pay for home repairs or to replace items lost in fires or floods. Automotive insurance covers expenses incurred by victims of motor vehicle accidents. Ontario’s Workplace Safety and Insurance Board (WSIB) provides support and insurance for people injured at provincially regulated workplaces.

Unfortunately, insurance providers don’t always work with policyholders’ best interests in mind. Private insurance companies, such as those that provide automotive insurance, are sometimes driven by self-interest; their raison d’être is to make and increase profits. At Neinstein Personal Injury Lawyers, our insurance dispute lawyers have experienced first-hand the lengths to which private insurers will go to avoid providing benefits.

Even public organizations, like the WSIB, have been alleged to try and reduce payments to policyholders wherever possible. Last month, CBC News’s Go Public team spoke to a Toronto woman who was secretly followed and recorded by the WSIB.

Alicia Micallef suffered a concussion during a shift at a retail store in May 2015. She sought benefits through the WSIB, which soon decided that her recovery was taking too long. The organization hired an investigator to follow her and record her actions to prove that she was lying about her injuries.

“It was horrifying,” Micallef told the CBC. “They came into my apartment building. They stood outside of my door and listened to what I was saying to my cat.”

The WSIB claimed that the video they obtained proved that Micallef was lying; it cut her benefits and demanded she pay back the income replacement it had provided. When she refused, she was charged with two counts of making false claims under Ontario’s Workplace Safety and Insurance Act.

Public insurers and compensation boards aren’t alone in surveying and recording claimants, but the rules by which they operate are different from private insurers. According to the CBC, ‘private insurance providers must follow the rules of the federal Personal Information Protection and Electronic Document Act, including obtaining hard evidence of fraud – not just suspicion – before secretly videotaping. Public insurers and compensation boards often fall under provincial privacy laws which often don’t address court surveillance by insurers.’

In either case, most insurance dispute lawyers agree that video surveillance is a harsh tactic to employ against policyholders who are already suffering.

“This kind of evidence is more of a sensational value, certainly instills fear into [those] injured,” one lawyer told the CBC. “And so, if people are intimidated into abandoning their claim, that’s a financial benefit for the insurance company or the workers’ compensation board.”

Micallef’s troubles are far from over. According to the CBC’s story, an Ontario Court of Justice acquitted her of charges in 2018, but she has yet to receive coverage from the WSIB.

Contact Neinstein’s Insurance Dispute Lawyers

Insurance companies are only profitable when they receive significantly more in premiums than they must pay out in benefits. At Neinstein, our insurance dispute lawyers have deep experience helping clients access the insurance coverage and/or accident benefits they deserve. Contact us today to learn more.

 

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