Pedestrian/Motor Vehicle Accidents
When a pedestrian struck by a motor vehicle when injuries have been sustained in a motor vehicle accident, there are generally three 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 that struck you. If there is any question of coverage for the vehicle that you were 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 were 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 (cooperation includes attending physical examinations designated by the carrier and attending an Examination Under Oath, if requested by the carrier), 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 vehicle 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 ‑ the vehicle maybe held 75% and the person struck 25% or the vehicle maybe found 95% and the person struck 5% or the vehicle maybe found 100% and the person struck 0%. In other words, the total responsibility for the accident must add up to 100%.
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. 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 a household vehicle's carrier ‑ 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 as a pedestrian may be made against a household vehicle. This coverage 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.
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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