The process of suing an insurance company for a car accident involves many steps and procedures in court. Perhaps the most common procedure is a motion. Motions are used to obtain help from a judge in order to resolve various procedural issues or disputes that arise during the litigation process between the parties.
A motion can only be “brought” by a personal injury lawyer after the process for the claim has begun in the court, which means that you cannot start a claim by bringing a motion. Once a claim has been commenced, then both the plaintiff (victim of the motor vehicle accident) and the defendant (person who caused the accident) may bring motions; the person who brings the motion is called the “moving party”, and the “responding party” is the person against whom the motion is brought.
The simplicity or complexity of a motion varies greatly, and they can be a useful tool to reduce the number of issues that will have to be dealt with at trial. It is possible that the disposition of a motion actually resolves some major issues between the parties, which can have the effect of reducing the time and cost of a trial, or even avoiding a trial altogether. As a client, your lawyer will determine which motions can and should be brought depending on the circumstances of your particular case, and will not mandatory for you to attend the proceedings.
There are many reasons for which a motion might be brought; for example, motions can be brought to extend a deadline, to allow a party to amend their statement of claim or defense, to add a new party to the claim, to dismiss an action due to delay, or to grant an interlocutory injunction to immediately require a party to do something or stop doing something before the actual trial.
Defendants frequently use motions to compel the plaintiff (victim of the car accident) to satisfy undertakings that were promised during an examination for discovery. In personal injury cases, defendants frequently request that the plaintiff provide them with certain documents or information to prove the extent and cause of their injuries. To avoid motions for failing to comply with undertakings, plaintiffs should make sure to be prepared and know what information and documents they have in their possession or can easily obtain, and only agree to provide those documents to the motor vehicle insurance company.
However, sometimes the situation is reversed and plaintiffs are faced with difficult defendants (insurance lawyers representing the person who was at fault in the car accident) and have to be persistent in the pursuit of their claims. Motions to compel a party to comply can be useful in such cases. For example, defendants may refuse to disclose a document by claiming privilege. If the document contains information that is necessary for the plaintiff to succeed in their claim and to get compensation for the accident, the lawyer may choose to bring a motion to argue against the privilege and require production. Another interesting recent motion involved a case where the defendants were simply not responding to any of the plaintiff’s numerous phone calls or letters, resulting in the deadline to choose trial dates being missed. The plaintiffs had to bring a motion to have their case be put back on the trial list.
It is important to consider the issue of costs when deciding whether or not to bring a motion. The applicable legislation provides that court has discretion in determining which party must pay the costs and for which amount. However, there is a general principle where “costs follow the cause”. This means that the party, which “wins” the motion by having the court give them what they want, will be entitled to collect a portion of the costs spent by lawyers on preparing for the motion from the “losing” party. For motions, the judge can choose to award “costs in the cause” which means that the party who succeeds with their final claim will eventually be awarded the costs of the previous motion as well, or the judge can choose to award “costs to a party in any event of the cause” which means that costs are awarded to a party for that motion regardless of the outcome of the final claim.
