What is the “duty to mitigate” my damages?
By: Brianna Carmichael, Associate Lawyer
When you have been in an accident, you may be wondering what you can do to help your chances of success and make the process as smooth as possible. One important part of this is minimizing the negative impacts that the accident has on you by getting into treatments and following your doctor’s orders.
That said, it can be overwhelming dealing with all the insurance company’s requests and follow ups, attend all the recommended treatments, and see your doctor regularly – do you have to do everything everyone asks? In other words, what is the duty to mitigate?
The duty to mitigate is essentially your obligation or duty to avoid damages if possible. You cannot recover against any insurance company for damages that could reasonably have been avoided if you had only done something differently.
Following an accident, your own insurance company (Section B) should be paying for your treatments, medications, medical equipment, and mileage, as well as weekly indemnity benefits for your loss of income.
It is important to “mitigate” or minimize the damages you have suffered as a result of an accident so that your own insurance company will continue paying your benefits. If you do not attend treatment or follow your doctor’s recommendations, they can stop paying for your medical expenses. This also applies to your weekly indemnity benefits for loss of income.
The duty to mitigate also arises with the insurance company of the at-fault driver (Section A). For example, if you cannot return to the same job you had before the accident because it is too physically demanding but you could work at something sedentary or less physical, if you do not apply for any other jobs they will argue that you did not mitigate your damages by finding another job.
Finally, keep in mind that the duty to mitigate only goes as far as reasonableness. No one can ask you to do something unreasonable just to minimize the damages you have or will suffer. That said, what you feel is reasonable may not be considered reasonably by a judge, so as a rule of thumb, if it is possible to do what the insurance company or your doctor is asking you to do, even if it’s inconvenient or frustrating, it is probably best to do it.
DISCLAIMER: The publications on this website are intended to provide information of a general nature and not legal advice. The information contained in this publication is current to the date of the publication and may be subject to change following the publication date.