"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.