Automobile / Motor Vehicle Accidents
When injuries have been sustained in a motor vehicle accident, there are generally four potential claims.
I. NO-FAULT CLAIM:
The first is a No-Fault claim, which must be filed within thirty (30) days from the date of occurrence with the insurance carrier for the vehicle you occupied (if a pedestrian - the vehicle that struck you). If there is any question of coverage for the vehicle you occupied (or in the case of a pedestrian - struck by), then a No-Fault claim should be filed with any vehicle in your household (A household vehicle is defined as any vehicle registered to you or someone you reside with related by blood or marriage). If the vehicle you occupied (or in the case of pedestrian - struck by) is uninsured, and you have no household vehicles, then coverage for the No-Fault claim should be covered by the Motor Vehicle Accident Indemnification Corporation (A company that provides coverage to victims of uninsured accidents - where there is no household vehicle).
The No-Fault claim provides coverage for all necessary medical treatment and a portion of lost wages. The minimum coverage for No-Fault in a New York State Policy is $50,000. Generally, the medical provider will require an assignment of the No-Fault claim, which allows them to bill the No-Fault carrier directly. In consideration of the assignment, as long as the claim is not denied for failure to cooperate (see below - duties to cooperate in the No-Fault claim), the medical provider is limited to what the carrier pays for treatment, either by way of voluntary payment or arbitration. In other words, the patient is generally not responsible for the portion or charges for treatment that the medical provider charges when the No-fault claim is assigned to the medical provider.
As for lost wages, No-Fault provides coverage for 80% of your income or $2,000 per month, which ever is less. After the application for No-Fault benefits is filed, the carrier should send a wage verification form to your employer. The employer completes the form and sends it directly back to the carrier. When the carrier has the completed wage verification form together with some medical documentation justifying the absence from work, then payment should be made.
In sum, the No-Fault claim provides basic coverage in automobile related accidents for medical and lost wages. The law was passed to make sure that all persons injured in an automobile related accident receives basic coverage for medical and lost wages. However, the law limits the right to maintain a liability case in court for compensation for non-economic losses (pain and suffering). The limitation is imposed by the Serious Injury Requirement.
II. LIABILITY CLAIM - INJURY:
The second claim is a liability claim for bodily injury. This claim is asserted against the vehicles involved based upon degree of fault. New York State is a pure comparative negligence State. This means that the trier of fact (jury or judge) decides liability based upon relative degree. For example - vehicle #1 may be held 25% and vehicle #2 75% or vehicle #1 maybe found 5% and vehicle #2 95% or vehicle #1 maybe found 100% and vehicle #2 0%. In other words, the total responsibility for the accident must add up to 100%. Under the rules of Joint and Several Liability, a passenger in a vehicle may enter their entire judgment or any portion thereof against the owner and operator of any vehicle involved as long as the particular vehicle is found to be 1% or more at fault. This is often a very critical rule of law when a particular vehicle does not have sufficient insurance coverage to adequately cover the loss.
The next significant topic in a liability bodily injury claim is the serious injury requirement imposed by the No-Fault law.
SERIOUS INJURY REQUIREMENT:
The degree of fault is only one factor that must be established in the liability bodily injury claim in accidents involving motor vehicles (note that the serious injury requirement does not apply to motorcycles - as drivers or passengers on a motorcycle do not have No-Fault coverage - for more information on motorcycle accidents - see the motorcycle section on the home page). Aside from fault, the claimant must prove a serious injury as defined by the No-Fault law. This is commonly referred to as the "threshold requirement". The term threshold means that only one injury must meet one or more of the categories of a serious injury. If any one injury does, then all the injuries, even the minor ones are compensable under the law.
The various categories are as follows:
3. Permanent impairment;
4. Significant limitation;
5. At least 90 of the first 180 day immediately following the accident unable to carry out in ones usual occupation or avocation;
7. Dismemberment and
8. Loss of a fetus.
Many injuries that may appear at first to be minor, over time turn out to be serious. Please do not draw any conclusions about the relative seriousness of an injury and the legal requirements without consulting with an attorney.
III. UNINSURED/SUPPLEMENTAL MOTORIST CLAIM:
If you are involved in an accident in which a vehicle involved is uninsured, the bodily injury portion of the claim can be recovered by asserting an Uninsured Motorist Claim. This claim would be asserted against the vehicle you occupied (if that vehicle is uninsured - then a vehicle in your household - see above for definition of a household vehicle - and if there is no household vehicle, then a claim can be made against the Motor Vehicle Accident Indemnification Corporation - an insurance industry safety net).
An Uninsured Motorist Claim also exists in a "hit and run" type of motor vehicle accident - where there has been physical contact with the offending vehicle, and in which the offending vehicle could not be identified. In such a circumstance, the incident must be reported to the police within 24 hours.
In an Uninsured Motorist Claim, the carrier essentially "steps into the shoes" of the uninsured vehicle (or in a "hit and run" - the vehicle that fled the scene) and as a consequence gets the benefit of all the same defenses that the offending vehicle would have, namely potential liability apportionment and/or the serious injury requirement.
The last point of significance of an Uninsured Motorist Claim, is that it being a function of a mandatory policy provision, the claim proceeds to arbitration rather than trial.
Another subdivision of an Uninsured Motorist Claim, is an Underinsured Motorist Claim also known as a Supplemental Claim. This is an optional policy provision that with the vehicle you occupied or within a household vehicle, that provides an extra layer of insurance over and beyond that of the offending vehicle. In other words if the offending vehicle has a limited policy and the value of the injuries exceeds the policy of that vehicle, then a claim can be made against the Supplemental Provision to the extent the Supplemental Provision exceeds the coverage of the offending vehicle.
Many times were the injuries are serious, one of the biggest issues in the case is identifying coverage. This passage is just a short introduction to this type of coverage, and should never be construed to obviate the need to seek direct legal advice.
IV. PROPERTY DAMAGE CLAIM:
If there is a claim for property damage to the vehicle, this can be covered in one of two potential ways.
The first is when one carries collision coverage. This is a first party insurance provision that provides coverage for the damage to the vehicle regardless of who is at fault. This is also commonly known as a full coverage policy. This is collected through the insurance company that insured the vehicle which was damaged. They will pay the cost of repair or the value of the vehicle as it was immediately before the loss, which ever is less. The amount paid is further reduced by the amount of the premium on the policy.
If a vehicle is rendered a total loss, then you generally have the election of keep the vehicle and accept payment less the salvage value, or you may turn the vehicle over to the carrier, and get the full value without a salvage value reduction.
The property damage claim should also cover the costs of towing, storage and a rental vehicle up until the time that the carrier has the vehicle accessed. After the claim is reported, the carrier will generally send an adjuster to inspect the vehicle.
A property damage claim can be asserted against the other vehicle to the extent that your policy does not carry collision coverage, or to the extent that you do not wish to assert a claim against your carrier. The other carrier may raise the issue of comparative fault. In other words, to the extent that you are partially at fault for the happening of accident, the other carrier will attempt to reduce the payment by the percentage of fault that your vehicle contributed to the happening of the accident.
Often the carrier for the other party does not willingly concede their fair share of responsibility. In the case where they do not, a claim can be added to the personal injury claim as a second cause of action, or pursued separately.
THE ABOVE PASSAGE IS NOT INTENDED TO ACT AS A SUBSTITUTE FOR LEGAL ADVISE, BUT RATHER TO PROVIDE SOME BACKGROUND OF THE COMMON ISSUES OF THIS CATEGORY OF A CLAIM. PLEASE CONTACT OUR OFFICE EITHER BY PHONE OR E-MAIL TO OBTAIN THE LEGAL ADVICE THAT YOU ARE ENTITLED TO. THERE IS NO FEE FOR A CONSULTATION AND OUR OFFICE ONLY OBTAINS A LEGAL FEE CONTINGENT UPON RECOVERY.
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