Were you injured in a car accident? Know your rights!
Sep 11, 2019 | 7490 views | 0 0 comments | 659 659 recommendations | email to a friend | print

                  When you are injured in a car accident, it is important to know your rights.  The first thing you need to know is how does your medical treatment gets paid for and what happens if you miss work.  New York is a “No-Fault” state.  That means, at least initially, that it does not matter who was at fault for the accident, the car in which the injured person is riding will pay the medical bills.  Sometimes this can seem unfair.  After all, if you are rear-ended in your own vehicle, why should your insurance be paying for anything?  The answer is simple.  It has been determined by lawmakers that the initial treatment and lost wages are more important than who is at fault.  If the injured party had to wait for insurance companies to figure out who was accepting blame, much needed treatment would be delayed.   In that light, this is a pretty good system.  However, like most good things, it comes with its drawbacks.

            In exchange for immediate care, victims of car accidents in New York give up their right to sue for all their injuries.  For example, if you are injured in a slip and fall, you have the right to be compensated for every injury, even if it is minor.  In a car accident, however, your injury must qualify under the “series injury threshold.”  This “threshold” was invented by the insurance companies and then placed into law along with the No-Fault system.  While it may sound initially acceptable for the public to only recover for “serious” injuries, this law has been turned into a weapon by insurance companies and insurance defense lawyers alike.

            For an example of this legal weaponry, look no further than a case recently decided by the Appellate Court.   The injured parties were in a motor vehicle accident in January 2014.  There were two injured victims.  Both had injuries to their neck and their back.  As is typical, the defense hired a doctor who claimed that, after examining the injured parties three years after the accident, there were no “series injuries.”  He claimed that he measured the range of motion for their necks and their backs and decided they had normal range in all areas.  This is despite medical evidence to the contrary.  Additionally, he was forced to concede that the injuries stated in the medical records were indeed caused by the accident.

The defendant used this questionable report to file a “summary judgment motion” based on the serious injury threshold.   A summary judgment motion, in this context, simply asks the judge to dismiss the case because the defendants claim that the injured parties are not injured enough.  If the case is dismissed, the injured parties do not receive any compensation for their injuries.

In response to the motion, affidavits of the injured party’s treating physicians were gathered and submitted to the court.  Not surprisingly, these show limitations to the neck and back of both injured people.  Not only that, it was also shown that they had a restricted range of motion in the areas up to 40%.  Generally, for an injury to be serious, the limitation must rise to at least 15%.  Although there are exceptions to this rule, it is a generally accepted starting point. 

Despite seeing this evidence, the court ruled in favor of the defendant.  It found that there was no serious injury, even though there was significant evidence to the contrary.  Unfortunately, this happens much more than it should.  Because there are many judges without proper experience in this field, often, the wrong ruling can result in horrendous outcomes. This is why insurance companies love this law.  It allows them to make these motions and, sometimes, they can convince a judge that they are right.  Even if they don’t, it results in a delay in the case while the judge makes the decision. 

The ruling was appealed.  Luckily for the injured parties, the Appellate Division saw that, at the very least, there were two different interpretations of the injuries.   Whenever this happens, the question of who is right should almost always be left up to a jury.  Here that is what the Appellate Division decided.  They believe the trial court was wrong, and this case should move forward.

This kind of legal maneuvering is common in the insurance industry.  Even if they don’t win, insurance companies want to hold onto their money for as long as possible.  In the event that they do win, they get to keep it forever.  It is essential to hire an attorney who is up to date with the very latest in personal injury law. 

If you or someone you know has been the victim of an accident, please reach out to us for a free legal consultation by calling 24/7 at 212-514-5100, emailing me at swp@plattalaw.com or visiting our law firm in Lower Manhattan (42 Broadway, Suite 1927).  You can also ask us questions through the 24-hour chat box on our website (www.plattalaw.com).  We offer free consultations for all potential personal injury cases.

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