Yes. You can sue while the insurer is paying, and in most car accident files that is exactly what happens. The benefits arriving in your account come from your own policy and are paid without regard to fault. The claim against the driver who caused the crash is a separate action against a different insurer, and accepting one has never settled the other.
The confusion is understandable, because in the first months after a crash an injured person deals with people who all say they are the insurance company.
Two Insurers Are Involved and They Are on Opposite Sides
Section B accident benefits are paid by your own automobile insurer under your own policy. Medical and rehabilitation costs, a weekly income replacement and a housekeeping benefit are paid whether the crash was your fault or not. That coverage is explained in the Section B benefits guide.
The tort claim is against the driver at fault, defended and paid by that driver’s liability insurer. Different company, different adjuster, different file number, opposite interest. Both claims proceed together, and neither one closes the other.
Accepting a Benefit Is Not Accepting a Settlement
An adjuster paying physiotherapy invoices is performing the policy, not resolving a claim. There is no offer in it and nothing to accept.
The same is true of an advance. New Brunswick’s Insurance Act lets a plaintiff apply to a judge after the action has started for an order requiring the defendant to make an advance payment of special damages, which is a mechanism built on the assumption that money can change hands long before the claim ends. The Act is published by the province.
A Release Is the Document That Ends a Claim
What ends a claim is a full and final release. It is a short document, it is usually final, and it covers the injuries you have not discovered as well as the ones you have.
Read what a release covers before signing anything. A release of the property damage claim should be limited to the property damage. A release given to the at-fault driver’s insurer for a few thousand dollars in the first month, at a point when nobody knows whether a soft tissue injury will settle down, closes the file for good.
Repairing Your Car Settles Nothing About Your Body
The property claim moves fast because the numbers are knowable. The injury claim cannot move at that speed, because its value depends on a prognosis nobody has yet.
Taking the cheque for the vehicle and signing the property release does not affect the injury claim, provided the release says so. Where an insurer sends one document covering both, that is the point to stop and get advice, and it is one of the risks in any decision to settle a car accident without insurance involvement.
The Limitation Period Runs While the Payments Run
Nothing about a paying insurer stops the clock. The deadline to start an action for the injury is two years in every Atlantic province, and it runs from the accident or from discovery, not from the day benefits stop.
This is the part that costs people their claims. Benefits are paid for eighteen months, the insurer then cuts them off, the injured person spends four months appealing, and the two years is gone. Treat the date of the crash as the deadline and work backwards from it. The guide to suing after a car accident sets out the steps and the court in each province.
Benefits Stopping Is Not a Verdict on the Lawsuit
Section B benefits end when the policy says they end, when the insurer decides the treatment is no longer reasonable, or after an independent medical examination arranged and paid for by the insurer.
None of that binds the court in the tort claim. A benefits denial is evidence of what one insurer’s assessor thought on one day. It is answered with the treating records, and it does not decide what the driver at fault owes you.
You Can Sue While the Insurer Is Paying a Disability Benefit Too
The same logic applies outside car accidents. A long term disability insurer that has approved a claim and is paying monthly can still be sued later, over a termination, over a change of definition at the two year mark, or over an underpayment.
A disability payment that has been received may be deducted from what an at-fault driver owes for the same lost income, so that nothing is recovered twice. Deduction is a calculation, not a bar, and it never means the tort claim should not be brought.
Sometimes the Payments Are Themselves the Dispute
Where an insurer pays late, pays partially, or uses the payments to keep an injured person from getting advice, the conduct becomes part of the claim. An insurer owes its own policyholder a duty of good faith in how it handles the file, and a breach of that duty can support damages of its own.
Keeping a record of the correspondence, the dates, the amounts, what was promised on the telephone and what arrived, costs nothing and provides the only account of how the file was actually handled.
What to Do While the Money Is Still Arriving
Keep receiving the benefits. They are yours under a policy you paid for, and refusing them helps nobody.
At the same time, get the injury claim assessed on its own terms. The firm’s car accident lawyers run the benefits file and the tort claim together, so that the benefits keep flowing and the deadline on the action does not pass unnoticed.