No-Fault Insurance and the Serious Injury Threshold (*Certain Accidents)

New York’s solution to decreasing the volume of pending motor vehicle lawsuits while providing injury victims access to prompt coverage for medical treatment and wage reimbursement was to enact No-Fault coverage. No-Fault insurance automatically provides up to $50,000 in benefits which can be applied to treatment received after a New York motor vehicle accident without needing to prove responsibility for the collision. No-Fault claims are filed with an injured party’s own insurance carrier and applications must be submitted within 30 days of the accident. Partial wage reimbursement is also available to injury victims.

The trade off to automatic No-Fault coverage is that individuals injured in motor vehicle accidents can only bring lawsuits to recover damages beyond the available coverage if they can prove they either incurred a “basic economic loss” of more than $50,000 or suffered a “Serious Injury” as defined within New York Insurance Law 5102(d). Under Section 5102(d), the following types of injuries qualify as “Serious Injuries”: (i) Death, (ii) dismemberment, (iii) significant disfigurement, (iv) a fracture, (v) loss of a fetus, (vi) the permanent loss of use of a body organ, member, function or system, (vii) a permanent consequential limitation of a body organ or member, (viii) a significant limitation of the use of a body function or system, or (ix) a non-permanent medically-determined injury or impairment that prevents an injured person from performing substantially all of their usual and customary daily activities for not less than 90 of the 180 consecutive days immediately following an accident.

* Pedestrians accidents can trigger no-fault coverage when the accident involves a vehicle that has this type of coverage.

Pain and Suffering

Individuals are entitled to seek multiple categories of damages. The primary non-economic category of damages (not tied to any specific expense) is ‘Pain and Suffering’. There is no set formula for computing this amount of damages. Rather, it is incumbent upon a jury to arrive at a value they believe compensates the injured party for the physical and emotional hardship they’ve endured.

Medical Costs

Injury victims are entitled to recover past medical costs that were paid directly out of pocket (rather than by a third party insurance carrier). They can also seek future medical costs for necessary prospective treatment. This component of future damages will typically be established at trial by an expert witness’ presentation of a life-care report. This report outlines the type of treatment the Plaintiff will need going forward along with the associated costs adjusted for inflation.

Lost Wages

Lost wages are an additional category of economic damages injured parties can seek in the course of litigation. These damages are intended to reimburse the Plaintiff for employment compensation they were deprived of as a result of their injury. This applies to unreimbursed past wages as well as future wages that can no longer be earned. In certain cases, the lost wage component of damages can account for the greatest percentage of overall damages received.

As an example, take a construction worker who permanently loses functional use of his arm and can no longer perform his pre-accident work. At trial, he may be able to recover the full salary he would have earned for the remainder of his professional career if not for the accident.

Property Damage

In cases where the injured party also suffers damage to their personal possessions, and where that damage is not reimbursed through a collateral source such as a separate insurance policy, the injured individual can also include a claim for property damage in their lawsuit for personal injuries. This can also apply if a separate policy only partially reimbursed the cost of property damaged due to the other party’s actions.

Punitive Damages

The preceding categories of damages are intended to make victims whole i.e. return them as close as possible to their pre-accident status. Punitive damages on the other hand are an additional category of non-economic damages which are designed not for the express purpose of compensating the injured party, but for punishing the liable party for grossly negligent or reckless conduct.

For example, if an individual knew their brakes were defective and continued driving thereby causing or contributing to an accident which resulted in injury, their conduct may be found to be grossly negligent and the victim may be entitled to seek punitive damages.

Mitigating Your Damages

Every individual has an obligation to mitigate their damages. In most circumstances, this means going to a doctor so an injury doesn’t unnecessarily progress. If the ultimate damages you suffer following an accident are exacerbated due in part to your own neglect, the Defendant(s) will not be held responsible for any corresponding increase in a verdict at trial.

Investigation

Your lawyer will conduct an investigation into your accident which includes examining any incident reports, speaking with eyewitnesses, reviewing photographs and video from the scene, reviewing property damage, inspecting the site and possibly engaging accident reconstruction experts.

By conducting a thorough investigation, your lawyer can prepare and present a claim that sets forth a clear sequence of events preceding the accident and details your injuries and post-accident treatment.

Gathering Evidence

Evidence can be obtained as part of an investigation or a Court-ordered exchange. Not all documents and statements are automatically considered evidence however. Rather, they must first be determined to be admissible.

For example, certain portions of a Police Report describing an accident may be inadmissible because the officer was not there to witness the accident first-hand. However, a party’s admission of fault contained in the Police Report may be considered admissible under an exception to the hearsay rule if they made the statement directly to the officer.

Building The Case

Building a client’s case starts the minute the attorney is engaged. From that point on, all efforts are geared towards maximizing any settlement or verdict that might be received at trial. From collecting evidence to establishing legal and factual arguments, the attorney will aim to craft the strategies that deliver the best possible outcome.

Negotiating with the Insurance Company

Insurance carriers can be tough negotiators when it comes to paying out compensation. If the carrier is unwilling to meet the fair valuation of damages suffered by an injury victim, it may be best to proceed with a personal injury lawsuit.

Filing a Personal Injury Lawsuit

By pursuing a personal injury lawsuit, attorneys can seek an order from the Court directing liable parties to pay their injury victims just compensation. While the vast majority of cases settle, taking a case all the way through trial may be necessary to enforce your rights to receive fair and just compensation.

Initial Pleadings

When litigation is necessary to enforce your rights to compensation, your attorney will draft initial papers consisting of a Summons and Complaint. These documents will describe your claim and set forth the legal basis underpinning your entitlement to damages. Upon receiving service of these papers the defending party will typically serve an Answer responding to the allegations contained in the Complaint. The Answer is often accompanied by various discovery demands requesting proof of your claim.

Documentary Discovery

In the first phase of litigation, the parties will make certain demands for the exchange of documents such as medical records and photographs. These documents will serve as the factual basis for your claim with regard to both liability and damages.

Depositions

Depositions are occasions where attorneys ask questions to parties and witnesses who are under oath about the liability and damages components of your claim. They are an opportunity to obtain first-hand testimony which can be used in support of motions, during settlement negotiations as well as at trial.

Independent Medical Examinations

Independent Medical Examinations (IME’s) are opportunities for the defense to have their own doctors review your records and perform physical examinations. Should the matter proceed to trial, these doctors may testify concerning the extent of your injuries and treatment and in response to experts retained in support of your claim. Defense counsel also rely on IME reports in support of their attempts to dismiss personal injury claims.

Motions

A range of motions are filed during the course of litigation. These motions may seek to compel the other side to exchange certain discovery, limit the issues at trial or dismiss the claim altogether. Among other things, they are useful when seeking to direct an otherwise uncooperative party to comply with discovery orders, or to obtain certain legal determinations where the material facts are undisputed.

Conferences

Court-mandated conferences occur at key points during litigation. Specifically, the Court will summon the parties to meet during the discovery process, to conference pending motions, and/or in efforts to resolve the claim before proceeding to trial.

Trial

If the matter cannot be resolved, the parties are sent out to trial. There, your attorney will present documents, testimony and expert opinions in support of your claim. Once the parties rest, the jury will reach a determination as to the factual arguments and a judge will determine the legal issues. While there can be a risk in proceeding to trial, it may ultimately be necessary to enforce your right to just compensation.

How much is my case worth?

The value of your case depends on the apportionment of liability and the severity of the injuries caused by the accident. Typically, the maximum recovery is the defendant’s insurance limit. This amount can vary based on the identity of the liable party. For example, larger construction companies may have multimillion dollar policies where as smaller subcontractors may have only $1 million in coverage.

How long will my case take?

The length of any particular case will vary. The factors that determine how long the case takes include whether the material facts are in dispute, the nature of the injuries, any history of prior injuries to the claimed body parts, the number of parties in the case, and the degree of cooperation between the parties. While a matter can settle at any time during litigation, it can take upwards of 1-2 years (and sometimes longer) from the initial filing through trial.

What should I do immediately after the accident?

First, remove yourself from the risk of further injury and evaluate your health. Depending on the degree of injury, the most prudent course may be to request an ambulance and have professionals perform an initial evaluation at the scene. If an ambulance is not requested, you should still seek treatment as soon as possible to address and document sustained injuries.

Additionally, secure as much information as you are able at the scene of the accident. This can include taking pictures, noting contact information for any eyewitnesses, and filing / obtaining any corresponding incident reports.

Should I speak with the insurance companies?

The best course of action is to engage counsel so that they may correspond directly with the insurance companies on your behalf. This is because insurance companies will often extend lowball offers to unrepresented parties to avoid having to compensate them for the fair value of their injuries later on. Before considering any such offers, an attorney should be engaged to evaluate your claim and potentially intervene on your behalf.

What should I do while my claim is pending?

While your claim is pending, it’s essential to continue your course of treatment and document how your condition progresses over time. Additionally, maintain records of your medical visits and how your injury impacts your employment and day-to-day activities. Finally, it is essential to keep off social media as much as possible. Insurance carriers will review your public profiles to see if your posted content contradicts your claimed injuries.