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The New York No-Fault Law, also known as the Comprehensive Motor Vehicle Insurance Reparations Act, has been effective since February 1, 1974. The legislature passed this law, within the scope of no-fault insurance, to provide prompt payment of health expenses, lost wages, and other reasonable expenses occurring from auto accidents. Under the no-fault law, victims of an auto accident, are compensated by the insurance company of the car they were in or that hit them, regardless of who was responsible for the accident. Minor injuries arising from car accidents are paid for by the individual’s personal injury protection (PIP), also known as no-fault insurance. The PIP insurance promptly pays economic losses including cases of negligence regardless of who was at fault up to a maximum of $50,000.
Consequently, New York licensed drivers must have car insurance with certain minimum requirements as follows:
- $25,000/$50,000 for bodily injury per person
- $50,000/$100,000 for death
- $10,000 for property damage per accident
However, you can still recover compensation if you suffered serious injuries from an uninsured driver by filing a no-fault claim. You can also use your uninsured motorist coverage to recover damages or sue the driver responsible for the accident. It is important to note that PIP insurance does not cover some injuries such as pain and suffering. Also, motorcycle accidents are not addressed under the New York No-Fault Law.
New York No-Fault Law insurance does not cover serious injuries and non-economic losses. For an injured person to get compensation for serious injuries, pain, and suffering, they have to file a lawsuit against the driver responsible for the accident.
What is the serious injury threshold statute in NY?
The Insurance Law § 5102(d) states that a plaintiff in a personal injury action arising out of negligence in the use or operation of a motor vehicle must establish that he/she has incurred a basic economic loss exceeding $50,000 or must establish that he/she has suffered “serious injury”. Car accident lawsuits that do not meet the legal requirements as defined by the courts and legislature are not admissible in court regardless of the level of negligence of the driver involved.
Qualifiers for serious injuries under the New York No-Fault Law
The New York State Serious Injury Threshold law defines injuries considered “serious”, in which an injured person can pursue compensation from the at-fault driver. Injured persons intending to pursue a car accident lawsuit must prove that their injuries fall under the nine categories of serious injuries.
Under the Insurance Law § 5104(a), (b) a serious injury is a personal injury that results in:
- Significant disfigurement – to qualify, an injury must cause a condition visible on the plaintiff’s body that reasonable people would believe to be unattractive, objectionable, or which would subject the plaintiff to pity or scorn from the community.
- Loss of a fetus
- Permanent loss of use of a body organ, member, function, or system,
- Permanent consequential limitation of a body organ or member,
- A significant limitation of the use of a body function or system
- 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 at least 90 days during the 180 days immediately following the occurrence of the injury or impairment. (90/180-day rule)
Injuries involving death, fractures, and loss of fetus are more straightforward to prove. The other cases of serious injuries are decided through rules, tests, and court decisions on cases involving these injuries. The last four injuries, including permanent loss of use, permanent consequential limitation, significant limitation, and 90/180-day rule for disability) require medical evidence and documentary proof as compared to the rest. They may involve serious injuries causing permanent consequential or significant limitations such as soft tissue injuries which affect the person’s quality of life. In such cases, the plaintiff should provide objective medical testing evidence in the form of MRIs and EMGs, and qualitative aspects of the injury such as disability, pain, and discomfort.
Under the New York No-Fault Law Gaps in treatment must be explained
The court of appeals, in Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 (2005), stated that a plaintiff who terminates therapeutic measures following the accident while claiming ‘serious injury’ must offer some reasonable explanation for doing so. This is because gaps in the treatment of victim injuries raise questions as to the reliability of the medical expert’s conclusion on the seriousness and causation of the injuries. Whenever the defense moves a summary judgment pointing to the gaps in treatment based on Insurance Law 5102(d), the plaintiff must explain the discontinuity through a doctor’s opinion affirming the issue in their last examination. A defendant moving a summary judgment motion in a case with a gap in treatment should emphasize the gap in treatment as an issue of causation. It would be helpful to use a doctor’s opinion demonstrating a lack of causation. The plaintiff may explain that they discontinued treatment due to financial challenges such as claim denial or lack of insurance.
Pre-existing injuries and conditions must be addressed
The court of appeals, in Pommells v. Perez, 4 N.Y.3d 566, 797 N.Y.S.2d 380 (2005), held that when the defendant moves for summary judgment and raises an issue of whether a pre-existing medical condition caused the alleged injury, the plaintiff must address the question of whether the symptoms and/or injuries were caused by the accident. This means that a plaintiff with a pre-existing medical condition or intervening medical problem facing a summary judgment on the threshold must address it in its entirety and detail through a doctor’s affirmation. A conclusory doctor’s affidavit or a doctor’s affidavit that doesn’t address the prior injury is not sufficient. It is important to note that a doctor’s opinion noting asymptomatic prior injuries such as asymptomatic pre-existing “degenerative” spine condition does not shift the burden to the plaintiff to address the injury Pommells v. Perez holding).
The deficiencies must be quantified
The Court of Appeals in Toure established that an expert’s conclusory findings, without support, will not suffice to establish a serious injury under the Insurance Law. The court stated that “To establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted by a plaintiff must contain objective, quantitative evidence for a 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.”
Plaintiffs relying on a claim of decreased range of motion must submit proof of the Plaintiff’s actual range of motion and compare it with the normal range of motion. Conclusory opinions of “decreased range of motion” will not be sufficient to raise issues of fact as to serious injury. The plaintiff may need to establish objective deficiencies, such as decreased range of motion, to meet the threshold. Courts have repeatedly held that proof of a herniated disc, without objective tests, is insufficient to meet the threshold.
Defendants need to keep in mind that a plaintiff’s subjective complaints of pain, without any objective medical evidence in support, are insufficient to establish a serious injury. In cases involving back and neck injuries, the plaintiff must submit proof of objective findings of decreased range of motion, muscle spasms, etc. If a defendant can point out where a plaintiff’s complaints are subjective, the defendant can argue that these “mild, minor, or slight” injuries do not meet the threshold injury. For instance, an MRI showing herniated discs (without more) will not meet the threshold.
Medical Records Must be Certified
Proof submitted in support of summary judgment motion, or in opposition thereto, must be in admissible form, Zeigler v. Ramadhan, 5 A.D.3d 1080, 744 N.Y.S.2d 211 (4 Dept., 2004). When moving a motion for summary judgment on the issue of serious injury threshold, the attorney cannot rely on unsworn medical records.
Plaintiffs and defendants must have certified their medical records at the initial request. However, a defendant can rely on uncertified medical provided by the plaintiff. Some Courts have recognized that a defendant moving for summary judgment may submit unsworn medical reports and records of the plaintiff’s physicians to demonstrate a lack of serious injury. However, when the defendant does so, the plaintiff may rely on the same unsworn or unaffirmed records in opposing the motion.
Proving a serious injury is not always easy without the help of a good attorney. Injured persons should document their injuries properly, and get the right medical treatment and medical proof to obtain compensation. Expert opinions from doctors in the relevant medical specialty in the order approved by the courts are critical in proving a serious injury.
How do you file a no-fault claim Under New York No-Fault Law?
If involved in a car accident in New York, an injured person should file a claim with the no-fault insurer through a written notice as soon as possible within 30 days. If a victim files the claim after 30 days, they must have a reasonable explanation and evidence justifying the extension of the period. In the notice, they should identify persons injured and any relevant information on the incident such as the circumstances, when and where it occurred.
If the vehicle accident was within New York state, the injured person must file the no-fault claim with the car insurer they were in or that struck the pedestrian. If the incident was outside the State of New York, and the victim was in a different vehicle, they are required to file the claim with their insurance company. However, if the injured person was a passenger on a bus, they should get their no-fault benefits from their household automobile policy, or the bus insurer.
In case of a hit-and-run accident, the incident must be reported to the relevant authority within 24 hours. And in this case, the victim’s household auto insurance should provide no-fault benefits. If the injured person doesn’t have auto insurance, they can file no-fault benefits with MVAIC. Upon receiving the claim notice, the insurer or MVAIC should send an application for benefits within five business days, for the claimant to complete and return as soon as possible. The claimant will also receive a letter explaining their rights, obligations, and available no-fault coverage.
Injured persons can pay for treatment and submit bills for reimbursement or the hospital can forward medical bills to the relevant no-fault insurer. No-fault benefits have prescribed fee schedules and should be paid within 30 days upon receipt of the health care provider’s claim and supporting medical care/lost wages proof.
Delayed payments come with penalties of 2% interest per month plus any attorney fees the claimant might have incurred. In case of delayed no-fault payments, a claimant can file a complaint, request for no-fault arbitration, or sue.