In suburban Long Island, the car and the ability to drive is vital for many people to live, work, and perform various other every-day activities. Long Island’s high volume of vehicle traffic, coupled with poorly designed and antiquated roadways, have led to countless car accidents over the years. Even the most careful of drivers can find themselves in a car accident through the negligence of another person. Drunk driving, texting whiling driving, speeding, improper turns, and blown stops are just some of the unfortunate causes of motor vehicle accidents that have left people to suffer severe, life-altering injuries.
When a person is injured in a car accident due to the negligence of another driver, it is important to obtain legal representation immediately. Without a lawyer, not only does a person have to suffer with their injuries, but they must traverse the myriad of task required by insurance companies and under insurance laws without legal guidance. Injuries aside, this alone can be a difficult and frustrating affair. Strict time limitations only amplify the need for legal direction.
At the Law Office of Stephanie G. Ovadia, Stephanie Ovadia has handled motor vehicle accident cases for decades. In her time as a personal injury attorney, she has seen almost every conceivable type of motor vehicle accident possible. She appreciates the pain and suffering car accidents cause people, the frustration insurance companies can add to the situation, and always tries to make navigating the legal process as easy as possible for her clients.
Car Accidents: An Overview
In a typical car accident, the starting point is contacting the insurance company. New York is a no fault insurance state. A no fault insurance claim is primarily focused on the payment of medical expenses and lost wage benefits. This claim is usually filed with the insurance company that insures the vehicle the person was in. Litigation is limited by New York’s no fault insurance law to only those individuals that have sustained a “serious injury” under the law.
No Fault Insurance
New York is a one of the few states in the country that has adopted No Fault legislation. This usually means that after a car accident, a person turns to the insurance carrier for the vehicle they were in for certain no-fault benefits. With some limited exceptions, bicyclists and pedestrians turn to the insurance carrier of the car that struck them. Motorcycles are not covered by no-fault insurance.
This occurs regardless of fault, hence the term: no fault. Navigating the world of no fault insurance claims can be a frustrating affair, especially for a person injured in a car accident, but certain action requires immediate attention to maintain a person’s entitled no fault benefits.
No-Fault Benefits
Assuming additional personal injury protection coverage was not obtained, no-fault insurance covers against “basic economic loss”, which means up to $50,000.00 per person for the following:
Medical Expenses. All necessary expenses incurred for: (i) medical, hospital, surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services; (ii) psychiatric, physical therapy (provided that treatment is rendered pursuant to a referral) and occupational therapy and rehabilitation; (iii) any non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state; and (iv) any other professional health services; all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury. [New York Insurance Law § 5102(a)(1)]. It is important to tell medical providers early that you were involved in a car accident, as the medical provider than may bill the no-fault provider directly.
Lost Wages. 80% of gross wages, up to $2,000 a month for a maximum of 3 years. This is often less than people may expect, however, as filing with New York State disability and receiving such reimbursement will reduce the amount of lost wages received by the no-fault carrier. It is also important to keep in mind that under New York Insurance Law § 5102(a)(2), “[a]n employee who is entitled to receive monetary payments, pursuant to statute or contract with the employer, or who receives voluntary monetary benefits paid for by the employer, by reason of the employee’s inability to work because of personal injury arising out of the use or operation of a motor vehicle, is not entitled to receive first party benefits for ‘loss of earnings from work’ to the extent that such monetary payments or benefits from the employer do not result in the employee suffering a reduction in income or a reduction in the employee’s level of future benefits arising from a subsequent illness or injury.”
All other reasonable and necessary expenses incurred. Up to twenty-five dollars per day for not more than one year from the date of the accident causing the injury.
Death benefit. An estate may receive a death benefit in the amount of $2,000 for the death of such person arising out of the use or operation of such motor vehicle.
Denial of No-Fault Benefits
Under most insurance policies, the above-mentioned No-Fault benefits will be denied if the person:
Drove while intoxicated or impaired by use of a drug, except where there is emergency health related services. Even then, the No-Fault insurer has the right to recovery the full amount of those payments made for the emergency services provided if the driver is convicted of driving while intoxicated or impaired through the use of alcohol or drugs.
Intentionally caused his or her own injuries.
Rode an all-terrain vehicle (ATV) or a motorcycle as operator or passenger. These types of vehicles are not covered under no-fault benefits.
Became injured while committing a felony.
Became injured while in a known, stolen vehicle.
Was the owner of an uninsured vehicle (operators would look to his or her own policy).
Deadlines
A person has only thirty days from the date of a car accident to file a claim for no-fault insurance benefits. Failing to submit a claim within the thirty day time period may (and typically does) result in the denial of a person’s claim by the insurance company in question. If lost wages are being claimed as part of a person’s no-fault application, he or she has ninety days from the date of the car accident to furnish verification of his or her wages. These strict deadlines are an important reason to seek a car accident lawyer promptly after an accident.
Uninsured Motorists / Underinsured Motorists Claims
Since people drive with insurance, despite being a crime, there is a mandatory need for uninsured motorist coverage. This is meant to protect the insured.
One of the least understood aspects of car insurance for people is underinsurance. An underinsured driver is a person that has insurance, but not enough insurance, to cover all the damage inflicted in the car accident. This situation, due to the compulsory nature of automobile insurance, is a very real possibility where a person sustained significant injuries.
Underinsurance reduces the risks associated with this scenario. This type of insurance may be part of a person’s car insurance policy. Unlike uninsured motorist coverage, underinsurance coverage is supplemental in nature. SUM coverage works by making up the difference between the underinsured’s policy and your actual damages.
With either uninsured or underinsured motorists, it is important to put a person’s insurance company on notice in a timely manner of such claims. Failing to give timely notice may result in a denial of your claim.
Car Accident Lawsuits
Lawsuits involving car accidents are reserved only for cases wherein either a basic economic loss exceeding $50,000 or a serious injury can be established. This is a required threshold for maintaining a lawsuit involving a car accident that was adopted as part of New York’s transition to the no fault system in 1974. The idea was to reduce the amount of minor car accident cases from clogging the court system. (See Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350 [2002], citing Dufel v Green, 84 NY2d 795, 798 [1995] (“[T]he legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries”)(internal quotes omitted).
New York Insurance Law § 5104(d) defines a serious injury. Unfortunately, the law provides little to no guidance as to the scope of the terms used, which has resulted in significant litigation. (See Vidal v. Maldonado, 23 Misc. 3d 186, 188-189 [Sup. Ct. Bronx Ctny. 2008](noting the elusive standards)). Although many of the terms are self-explanatory, others have been hotly contested – especially in “soft tissue” type cases. The law defines a serious injury as follows:
Death.
Dismemberment.
Significant disfigurement.
A significant disfigurement may exist if “a reasonable person would view the condition as unattractive, objectionable, or as a subject of pity or scorn.” (Prieston v. Massaro, 107 AD 2d 742, 743 [2d Dept. 1985]). Typically, a significant disfigurement involves scarring. Scars may constitute a “significant disfigurement”, with the dimensions, hue, texture, and particularly the location influencing such determinations. (Jordan v. Mediate, 2009 NY Slip Op 51435 [Sup. Ct. Kings Ctny. 2009].)
Fracture. This also includes broken bones.
Loss of a fetus.
While this is category is self-explanatory, a related issue is when a pregnant woman is recommended bed rest in order to prevent the loss of the fetus, such as a risk of preterm labor. Where preterm labor is concerned, there is some legal precedent that for pregnant woman involved in car accidents, where there is proof that preterm labor is causally related to an automobile accident, and where a physician recommends bed rest, such bed rest does qualify under the 90/180-day category. (Damas v. Valdes, 84 AD 3d 87, 89 [2d Dept. 2011])
Permanent loss of use of a body organ, member, function or system.
To qualify as a serious injury within the meaning of the statute, a “permanent loss of use” must be total. (Oberly v. Bangs Ambulance, 96 NY2d 295, 299 [2001]). In practice, this is very difficult to show.
Permanent consequential limitation of a body organ or member.
The “permanent consequential limitation” category requires establishing that the injury is “permanent,” and that the limitation is “significant” rather than slight. (Saltzman v. Gardella’s Elite Limousine Serv., 2010 NY Slip Op 30204(U) [Sup. Ct. New York Ctny. 2010](citation omitted) Whether an injury is “permanent” in nature is usually a medical question. (See Dufel v. Green, 84 N.Y.2d 795, 798 [1995]. Whether a limitation of use or function is “significant” or “consequential” relates to medical significance and involves a comparative determination. Id. Submitted medical evidence must “contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff’s present limitations to the normal function, purpose and use of the affected body organ, member, function or system.” (Toure v. Avis Rent-A-Car Sys., 98 N.Y.2d 345, 353 [2002]).
Significant limitation of use of a body function or system.
The “significant limitation” category requires more than a minor, mild or slight limitation of use. (Licari v. Elliott, 57 NY 2d 230, 236 [1982]). Nevertheless, the limitation need not be permanent. As with the “permanent consequential limitation” category, the “significant limitation” category requires the submission of objective, quantitative evidence medical evidence with respect to diminished range of motion or a qualitative assessment comparing plaintiff’s present limitations to the normal function, purpose and use of the affected body organ, member, function or system. Id.
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.
This is known as the 90/180-day category. The words “substantially all” are construed to mean that “the person has been curtailed from performing his usual activities to a great extent rather than some slight curtailment.” (Licari v. Elliott, 57 NY 2d 230, 236 [1982]).
In many car accident cases, the existence of a serious injury may be a hotly contested issue. Claims require medical proof, sworn to by medical professions. Where there are significant gaps in treatment or pre-existing injuries, for example, meeting the serious injury threshold may not be possible.
Before litigation, a car accident lawyer will typically determine the insurance company for the at-fault vehicle. This information may usually be obtained by reference to the insurance codes present on a motor vehicle accident report. The car accident lawyer will then normally submit a letter of representation to the insurance carrier. The attorney may submit documentation to demonstrate the seriousness of person’s injuries. Eventually, the attorney may negotiate a settlement with the assigned liability adjuster instead of litigation.
Common Factors in Car Accidents
According to the New York Department of Motor Vehicles (DMV), there was 299,452 total car accidents in New York in 2014. There are many reasons a car accident may happen. The following are some of the most common factors involved in car accidents in New York, based on DMV statistics for the year 2014.
Driver Inattention/Distraction. The single greatest human factor for a car accident in New York state. Inattentiveness or distraction is a factor in approximately 19% of all New York car accidents. Nearly half of such accidents result in personal injury. Common causes of driver inattention/distraction may include texting, talking on cell-phones, and adjusting audio and/or climate controls.
Following too Closely. The second most common factor in car accidents in New York is tailgating, which may results in rear-end collisions. About half of the accidents caused due to following too closely to another car result in personal injury. The best way to reduce the chance of this type of car accident from occurring is to maintain a safe driving distance behind another vehicle.
Failure to Yield R.O.W. The third most common factor in New York car accidents. A person may fail to yield the right of way in a variety of circumstances, which can cause car accidents. A common scenario is not waiting for traffic to clear before proceeding. For example, a driver may make an improper left hand turn and cause an accident by not waiting for traffic to clear before turning.
Unsafe Speed. Speeding is a contributing factor to many car accidents that occur in New York. In 2014, there were 27,859 accidents were police noted that “unsafe speed” as an apparent contributing factor in car accidents.
Animals. The actions of animals, such as dogs, squirrels and deer, resulted in 23,221 accidents in New York in 2014.
Slippery Pavement. Hydroplaning is a serious cause of car accidents in New York. Hydroplaning occurs when water creates a layer between a tire and the pavement. This causes a loss of traction and a loss of control over the vehicle that braking will not stop. Hydroplaning may be reduced by slowing down, avoiding puddles of water, and rotating/balancing tires at the recommended intervals.
Car Safety Tips
Although some car accidents are unavoidable, there are many safety precautions a person can take to help protect themselves and his or her family. Some common safety tips include the following:
Wear a seatbelt. One of the most basic safety devices is also one of the most powerful safety precautions a person can take. Drivers and passengers should always wear seatbelts. According to the CDC, seat belts saved almost 13,000 lives in 2009 and among drivers and front-seat passengers, seat belts reduce the risk of death by 45%, and cut the risk of serious injury by 50%.
Choose the right car seat. There are three basic types of car seats, (i) rear-facing car seats, (ii) forward-facing car seats, and (iii) booster seats. Choosing the appropriate car seat for your child is a matter of the child’s age and size.
Keep the kids in car seats until adequately sized. For younger children, car seats are better than wearing a seatbelt. While a young child may think he or she has outgrown a car seat, the booster seats are recommended for children ages 8-12, depending on size. It is recommend by the NHTSA that a child stay in a booster seat until big enough to properly fit in a seat belt. This means that the seat belt fits snugly across the upper thighs, not the stomach. The shoulder belt should rest across the shoulder and chest, not the child’s neck or face.
Slow down. As an added bonus, you may save on gas.
Don’t drink and think you can drive. People know not to drink and drive. But people often misjudge the effects of alcohol. A person’s blood alcohol concentration results in typical and predictable effects, even if a person thinks they can “hold” their alcohol well.
Put down the phone. The official US government website for distracted driving, distraction.gov, says that “because text messaging requires visual, manual, and cognitive attention from the driver, it is by far the most alarming distraction.”
Don’t drive tired. The National Highway Traffic Safety Administration estimates that drowsy driving was responsible for 72,000 crashes, 44,000 injuries, and 800 deaths in 2013.