Powers & Santola, LLP
Catastrophic Injury Attorneys
Spinal Cord Injuries • Brain Damage • Amputation
An Overview of New York Law Regarding Motor Vehicle Accidents and Insurance
New Yorkers who have been injured or lost family members in auto accidents need to speak to an experienced attorney as soon after the accident as possible. Insurers have in-house counsel whose job is to limit the amount of benefits paid out to policyholders after accidental injuries or deaths.
To level the playing field, people injured in trucking accidents, construction site accidents, or medical malpractice incidents need the assistance of experienced catastrophic injury lawyers. Powers & Santola, LLP, have years of experience and a long list of successful verdicts and settlements. To schedule a free initial consultation, contact us by phone or email.
Important issues related to catastrophic injury accidents include:
Statute of Limitations
Vicarious Liability
Mandatory Minimum Limits of Coverage
Mandatory No-Fault Coverage
Personal Injury Lawsuits
Statute of Limitations
New York has a 3-year statute of limitations for motor vehicle negligence. This can be extended for infancy or incompetence and can be shortened for actions against the state or municipal entities. Generally, there is a 90-day notice of claim requirement for claims involving state or municipal entities. Once the time limits of the statute have run, all claims are foreclosed.
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Vicarious Liability
In New York, the owner of a motor vehicle is responsible for the negligence of the driver of that vehicle, if the vehicle is being driven with the owner's consent. The owner's consent is presumed, absent proof to the contrary. The presumption of consent is nearly impossible to overcome, except in the case of a vehicle that was reported stolen prior to the collision. In addition, if the vehicle is being driven in the course of a business, the driver's employer is usually liable for the negligent operation of the vehicle.
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Mandatory Minimum Limits of Coverage
Automobile liability insurance is mandatory in New York, with the minimum limits being $25,000 per person for injury/$50,000 total for injury per accident/$50,000 per person for death/$100,000 total per accident for death/$10,000 per accident for property damage. All vehicles are also required to have uninsured coverage and many have underinsured coverage. It is best to put the injured person's auto insurance carrier on immediate notice that its insured may make a claim for underinsurance as soon as you are retained.
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Mandatory No-Fault Coverage
Every vehicle in NY is required to carry "basic" No-Fault (PIP or Personal Injury Protection) insurance. Basic No-Fault auto insurance coverage includes, up to a total limit of $50,000 "basic economic loss": necessary medical and rehabilitation expenses (in accordance with established fee schedules); 80% of lost earnings from work, up to a maximum payment of $2,000 per month for up to three years; up to $25 a day, for up to a year, to reimburse other reasonable and necessary expenses resulting from the auto accident; and a $2,000 death benefit (in addition to the $50,000 basic No-Fault limit), payable to the estate of a person eligible for No-Fault benefits who is killed in a motor vehicle accident. No-Fault benefits are generally collected from the injured person's own auto insurance policy. In addition, approximately 60% of all auto policies have supplemental PIP which can raise the No-Fault benefits to $100,000 or more.
An application for No-Fault benefits generally must be made "as soon as reasonably practicable, but in no event more than 30 days after the date of the accident." In the case of a claim for health service expenses, the eligible injured person or that person's assignee or representative shall submit written proof of claim to the Company, including full particulars of the nature and extent of the injuries and treatment received and contemplated, as soon as reasonably practicable; but, in no event later than 45 days after the date services are rendered.
Written proof of claim for work loss benefits and for other necessary expenses must be made as soon as reasonably practicable but, in no event, later than 90 days after the work loss is incurred or the other necessary services are rendered.
If a person is injured in the course of his or her employment, No-Fault benefits are usually primary but the worker's compensation carrier and disability carriers should be put on notice immediately.
Medical providers must accept No-Fault medical benefits as full reimbursement for services and cannot bill for the difference between their normal rates and the No-Fault billing schedule. There is no lien or right of subrogation for "basic No-Fault" benefits paid against the proceeds of a lawsuit brought against the owner or operator of a "covered vehicle" (that is a vehicle which also has No-Fault coverage). There is a lien or right of subrogation for supplemental No-Fault benefits. There is also a lien or right of subrogation for "basic No-Fault" benefits against the proceeds of any claim brought against anyone who is not a "covered vehicle" (i.e. claims for product liability, defective highways, malpractice, etc.).
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Personal Injury Lawsuits
New York prohibits any suit to recover damages for personal injury or economic damages in excess of "basic economic loss" sustained by the occupant of a "motor vehicle" unless that person has sustained a "serious injury" as defined by statute. "Serious injury" is defined as: "a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a 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; or 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
Operators of, and passengers on, motorcycles do not receive "No-Fault" benefits and are not subject to the "serious injury" limitation.
There are no caps on damages in New York state, and there is pure comparative negligence (i.e. if the plaintiff is 60% responsible for the injuries and damages, the plaintiff can recover the 40% attributable to someone other than the plaintiff).
Generally, there is joint and several liability for all damages arising out of a motor vehicle accident. Thus, a party who is as little as 1% at fault can be made to pay all of the economic and non-economic damages. However, settlement with any tortfeasor can destroy or seriously impair that joint and several liability. If the claim is against someone other than the owner or operator of a motor vehicle, there is always joint and several liability for economic damages and there may or may not be joint and several liability for non-economic damages, depending on the nature of the case. Again, settlement with any tortfeasor may destroy or seriously impair whatever joint and several liability may exist.
In the event of a verdict, the plaintiff's damages are reduced by collateral source payments and, once reduced, all past damages are paid and all future damages up to $250,000 are paid. Future damages in excess of $250,000 are "structured" with payment of future pain and suffering being generally paid over 10 years and future economic damages being paid over the period of time determined by the jury (with future medical expenses terminating on death, if it occurs sooner than the time set by the jury).
The information provided here is general in nature, and may not pertain to your personal injury or medical error injury. To discuss your amputation, spinal cord injury, brain injury, or other serious injury, or your family member's accidental death with an experienced upstate New York attorney, contact us.Back to top
