Motor Vehicle Accidents
"Serious injury" is a term of art that has a defined legal meaning under the New York Insurance Law. The phrase typically is used in the context of a personal injury case arising out of a motor vehicle accident ("MVA"). In an MVA case, the injured person can make a claim or sue the negligent driver only if the injured person has in fact suffered a "serious injury."
Some injuries clearly meet this standard. Under New York's Insurance Law, any fracture qualifies. Death, dismemberment, significant disfigurement and loss of a fetus also qualify. More challenging to analyze and define are the other categories that constitute a "serious injury":
- permanent loss of use of body organ, member, function or system
- permanent consequential limitation of use of a body organ or member
- significant limitation of use of a body function or system
- a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment
In preparing your case, we obtain and analyze the medical records prepared by the doctors and other health care providers that you have seen for treatment of your injury. We also talk with you about what you have experienced in the weeks and months following the accident. We then use this information to make a determination of whether you have sustained a qualifying "serious injury?"
Attorneys and insurance adjusters sometimes use the phrase "no-fault threshold" to refer to whether or not the injured person has in fact sustained a "serious injury." If the injured person has suffered a "serious injury," we might refer to that as "getting over the no-fault threshold."
Even if you did not have a qualifying "serious injury" in an MVA, you are still entitled to so-called "no-fault benefits", which are sometimes referred to as "first party benefits." These include:
- payment of your reasonable and necessary medical expense for doctors, hospitals and other health care providers
- payment of a portion of your lost wages
- certain other incidental expenses
What you are precluded from doing if you do not have a "serious injury" is making a claim against the negligent driver for monetary compensation for your pain and suffering.
No-fault benefits are paid by the automobile insurance company of the owner of the car you are in at the time of the accident -- even if the driver of that car (whether you or someone else) is not at fault -- hence the term "no-fault benefits."
In other words:
- If you are driving your own car, your insurance company is responsible for your no-fault benefits.
- If you are a passenger in a car, the insurance company for the owner of that car, whether that owner is you, a family member or someone else, is responsible for your no-fault benefits.
- If you are a pedestrian or bicyclist struck by a car, it is the insurance company for the owner of that car that is responsible for your no-fault benefits.
Under current New York law, there are no "no-fault benefits" for an injured motorcyclist.
However, there is also no "no-fault threshold" for an injured motorcyclist, and thus you can bring a claim for recovery of medical expenses, lost wages and pain and suffering against another negligent driver without needing to have a "serious injury."
It has been our experience that motorcyclists are seldom at fault in an accident, and are usually the injured victims when the driver of another vehicle "doesn't see them." Unfortunately, motorcyclists struck by cars typically do suffer a "serious injury," even though they have a claim for even non-serious injuries.
These are the two documents we prepare to start the lawsuit against the defendant -- the person or entity that we allege to be responsible or liable for your injury. When the Summons and Complaint are filed with the appropriate County Clerk, or the Federal District Court Clerk, the lawsuit has been commenced. The Summons and Complaint are then "served on" (that is, delivered to) the defendant by a law enforcement officer, or private process server.
The Summons tells the defendant how many days they have (typically 20) to formally respond to the Complaint.
The Complaint consists of a series of numbered paragraphs that lays out the basic facts of who you are, who the defendant is, how and where the accident happened, and what injuries and damages you suffered as a result of the accident.
An Answer is a formal legal response to the Complaint, typically prepared by the attorneys hired by the insurance company for the defendant. The Answer admits or denies each numbered paragraph of the Complaint, and describes any defenses that the defendant is going to assert.
A Statute of Limitations refers to the period of time in which a lawsuit must be commenced, before it is "too late" and untimely. In a personal injury case, this period of time is usually computed starting with the day of the accident.
The Statute of Limitations is not the same for every type of case. For example, the typical New York personal injury case based on negligence must be commenced within 3 years from the date of the accident. But New York personal injury cases based on medical malpractice have a 2.5 year statute of limitations.
The status of the parties also affects how the time period is computed. For example:
- An injured person under the age of 18 generally reckons the Statute of Limitations from the time he or she turns 18 -- and not from the date of the accident.
- When the defendant is a governmental entity, such as a municipality, the State or Federal government, or an agency, the time within which to commence the lawsuit is much shorter, and typically requires a formal Notices of Claim, or other prerequisite to the lawsuit.
One of the first things we will do in representing you is to determine exactly what type of case you have, and what the statute of limitations is for you and your particular case.
Discovery refers to the stage of the lawsuit after the Complaint has been answered, where the lawyers for the plaintiff and the defendant explore the claims and defenses asserted by the opposing party. This Discovery process allows the parties to better understand the strengths and weaknesses of their case, and thus either sets the stage for settlement discussions, or a trial of the case.
The New York and Federal practice rules provide a variety of tools that the lawyers may utilize to probe the claims or defenses of the opposing party. These tools include:
- Demands for Production of Documents
- Demands for Bills of Particulars
- Notices to Admit
- Depositions (also referred to as Examinations Before Trial, or "EBTs")
- "Independent" Medical Examinations
Which tools are used, and how they are used will vary depending on the issues involved in the case. You will required to assist the lawyers in preparing and responding to the various types of Discovery demands.
Settlement represents an agreed resolution of the case, when the lawyers and insurance adjusters satisfy themselves that a particular amount of money paid in settlement is an acceptable alternative to the risks and uncertainties of a trial outcome for their clients.
A jury or judge trial is how cases are finally resolved if the parties are not able to reach a settlement. We prepare every case as if it is going to go to trial, so that the facts and evidence are fully developed and understood, and can be presented in the most effective way on your behalf.
As a practical matter, many, if not most cases, do in fact settle sometime along the way before a trial. In some cases, if there is clear liability on the part of the defendant, and reasonable medical certainly about the nature and extent of the injuries, settlement might occur through a series of negotiations before a lawsuit is even commenced. In other cases, disagreement about liability or uncertainty about the extent of the injuries may mean that the case does not settle until after the completion of discovery, or even during the trial itself.
No settlement takes place without your involvement and agreement. While we act as vigorous advocates on your behalf in dealing with opposing counsel and the insurance companies, our responsibility as your lawyers also requires us to objectively assess your case, present to you the risks and uncertainties of your particular case, and recommend to you what we feel would be a reasonable range for settlement.