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I had the pleasure of handing over a sizable settlement check to the victim of a Pennsylvania Motorcycle Collision the other day.  It’s a pretty common occurrence, but the circumstances of this particular case made it particularly satisfying.  My hope is that by sharing the information on this blog, I can keep a future motorcycle client from making the same mistake.

This client  didn’t come to us when he was first hurt.  He made the mistake of calling one of those firms who advertise on TV about every 15 seconds.  So they sent an “investigator” to him to have him sign a retainer agreement, and made him travel to their BIG CITY office several hours away to meet with some paralegal.  Everything seemed to be going fine until the time came to discuss settlement with the insurance company.  It turned out that who was at fault for the collision was a little bit of an open question, so the insurance company decided they wouldn’t pay a penny and basically dared the attorney to sue them.

This is where things get really interesting.  You see, the client had a really significant injury.  If this “BIG CITY” lawyer with the multi-million dollar advertising budget could convince the insurance company that their driver was at fault, the insurance company would surely offer up the entire policy due to the nature of the biker’s injury.  For whatever reason, this “BIG CITY” attorney couldn’t convince the insurance adjuster to do this.  That kind of thing happens.  Insurance companies don’t stay in business long if they hand over money every time an attorney comes knocking with an arguable claim.  If the insurance company refuses to pay anything willingly, the next step is clear:  you sue them and start heading for trial.  It doesn’t mean there will necessarily be a trial, as after the discovery part of the law suit is concluded there will be another round of negotiations where the case may settle, but you have to keep the case moving.

What happened next astounded me.  This “BIG CITY” lawyer with the tough guy commercials tucked his tail and ran for the hills.  He told the client he would no longer represent him.  Now that the case might actually take a little work, this “BIG CITY” lawyer wanted nothing to do with it.

So the client came to me.  I couldn’t figure out why the “BIG CITY” lawyer dropped the case, as it seemed like a good case to me.  I sued the case and proceeded with the litigation.  I was eventually able to convince the insurance company that their driver was at fault for the accident, and they agreed to pay my client the fully policy limits.

There are a couple lessons to be learned from this case.  First, spending millions of dollars a year on tough sounding TV commercials doesn’t make a lawyer tough.  Second, you don’t have to drive to a big city to get quality representation.

If you need a personal injury attorney, ask your family, friends and neighbors who they may have used.  Do some research, and make an informed decision.  As the above situation reveals, which attorney you choose can make a huge difference in how your case comes out.  Ask any attorney you meet with if they are willing to take your case to trial if necessary, and how many similar cases they have tried.     Insist that you actually meet with the attorney that will be handling your case and not some “investigator”.  After all, do you really want to hire an attorney who is “too busy” to meet with you himself?  If you are too far away for the attorney to drive to meet you, aren’t you too far away to drive to meet the attorney?

Everything for this client ended up working out for the best.  I just worry about that firm’s other clients.  Heaven help them if the going get tough in their case.

Thanks for reading,

_______________________________
Adam M. Gee, Esq.
NY and PA Personal Injury and Malpractice Attorney
The Ziff Law Firm, LLP
303 William Street
Elmira, NY  14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
www.zifflaw.com

Over my 23 years of practice in Upstate NY and PA, I have handled my share of tragic cases due to falls on snow and ice:

• a woman from Ithaca, NY who suffered a permanent brain injury due to hitting her head on an ice sidewalk outside a Corning, NY pizzeria;
• a construction worker from Elmira who was caused to suffer a nasty, spiral fracture of his femur when caused to fall on icy steps at a Waverly, NY factory;
• a Binghamton, NY man who badly injured his back in a twisting fall in a shopping mall parking lot.

Each of these cases resulted in very substantial payments by the insurance carriers for the property owners.

The sad part about each of these cases was just how easily they could have been avoided had the property owner just taken the simple (and legally required) step of keeping their property free of snow and ice.

Now don’t get me wrong, as a property owner myself, I know that it’s often a pain in the neck to keep my home and my office clear of snow and ice but I also know that it is my legal responsibility to do so and even more important, I sure don’t want to see one of my family, friends or clients hurt just because I was too lazy to make sure that I kept my property safe.

During the cold and stormy months of winter, it seems as if we just get the sidewalks cleared before Mother Nature strikes with another storm. A new layer of snow and ice coats the area, making roads and sidewalks slippery and dangerous until we can treat and clear them again.

I want to share some advice about winter conditions and legal liability. This is good information to remember, no matter what your “walk” in life. You may a business or building owner with the responsibility of keeping sidewalks and entrances clear and safe, or you could be a victim of a nasty fall on ice, trying to figure out what your legal rights are.

I was inspired to share some information about this issue by a post, Snow and Ice: Five Ways to Avoid Legal Liability by attorney Tim Rayne. Tim’s tips address the potential liability of property owners. He basically cautions them to:

Determine who is responsible for keeping walking areas free of snow and ice. It may be the property owner, or it could be the municipality – the key is to KNOW for SURE and assume the responsibility if it is yours.

Treat ice and snow effectively and get rid of it quickly. Don’t dawdle! If you are a property owner, and you don’t address dangerous walking conditions quickly, you are opening yourself up to a lawsuit.

I want to add that if you are a pedestrian and you note poor conditions, be sure and tell the property owner. You don’t want to be the victim of a slip and fall accident – or allow anyone else to be, either.

And finally, Tim tells property owners to be sure and have enough liability insurance to cover the cost of perhaps serious injuries to victims of slip and fall accidents.

I know from my 20+ years of experience handling personal injury cases that even when insurance adequately covers the costs of physical recovery, serious injuries have repercussions in victims’ family life, careers, mental state and more. First and foremost, we need to keep people aware of their responsibilities and/or risk during this sometimes treacherous season.  Stay safe!

Thanks for reading,

Jim

_________________________________________
James B. Reed, Esq.
NY Fall and Injury Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com
E-mail me at FreeReports@zifflaw.com for two free books:

NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

Our hearts go out to the family of local builder, John Roy from Horseheads, NY, who died after falling from a scaffold while building a house in Lansing, NY.  John had an excellent local reputation and I fondly remember time spent talking with him years ago when I was building my own home.  We send our thoughts and prayers to his family.

The facts of John’s fall are not very clear at this time.  The Corning Leader and WETM report:  “62-year old John Roy of Horseheads died after falling 30 feet from scaffolding while building a home in Lansing.  Roy was working on the roof of the house at the time.”

John’s tragic death caused me to reflect on the purpose behind a very important New York law.

Under NY law, construction workers are protected by what is referred to as the Scaffold Law (copied below). This law imposes liability on both the owners and general contractor whenever a worker is injured or killed due to an “elevation related risk.” Most commonly, cases under the Scaffold Law involve falls from a ladder or scaffold but they can involve other types of falls where the worker was exposed to injury due to working at a height.

The public policy behind this law is to encourage greater workplace safety for NY workers and accordingly it is a law that serves a very important function.  Because of this law, over the years, construction safety practices have dramatically improved. Heck, when I was a teenager carrying shingles for a local roofer, I never had the protection of a safety line but now such safety equipment is routinely seen on work sites.

Despite the fact that I am a lawyer who makes my living representing injured workers and their families, I am a strong supporter of any law that seeks to protect public safety.  My feeling is that unfortunately there will always be way too many injured people, so anything that can help protect more people is a great thing.

Here is an excerpt from the NY Scaffold Law:

New York Labor Law 240. Scaffolding and other devices for use of employees

1. All contractors and owners and their agents, except owners of one and two- family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Thanks for reading and stay safe,

Jim
_________________________________
James B. Reed

NY Scaffold Accident Lawyer
Ziff Law Firm, LLP
Mailto: jreed@zifflaw.com
Office: (607)733-8866
Toll-Free: 800-ZIFFLAW (943-3529)
Web: www.zifflaw.com
Blogs: NYInjuryLawBlog.com and
NYBikeAccidentBlog.com

Here is a copy of a story The Leader ran about John’s accident:

H’heads contractor dies after fall

(By Derrick Ek; Corning Leader; Wednesday Jan. 27, 2010, 04:33 PM EST)

Horseheads, N.Y. – A Horseheads man killed in a construction accident Tuesday was a longtime member of the community and a respected businessman, according to Horseheads Mayor Don Zeigler.

John D. Roy, 62, the owner of Roy Builders Inc., died after falling 30 feet from scaffolding at a home his company was building in an upscale neighborhood in Lansing, north of Ithaca, said Capt. Derek Osborne of the Tompkins County Sheriff’s Office.

Roy was climbing out of a window near the roof of the home onto the scaffolding when he fell, Osborne said. The scaffolding may have been unstable, Osborne added.

Roy was rushed by ambulance to Cayuga Medical Center, where he succumbed to his injuries, Osborne said.

Zeigler called Roy a good man and an excellent contractor who had built many homes and larger projects over the years, contributing to the area’s growth. Roy had recently submitted plans to village officials for a 30-unit senior housing complex near Hanover Square in Horseheads.

“He will be greatly missed,” Zeigler said.

Roy, who lived on Johnson Road in the town of Horseheads, leaves behind a wife and two children, said Jim Lynch, owner of Lynch’s Funeral Home in Horseheads, which is handling Roy’s funeral arrangements.

Lynch had known Roy since high school, he said. Roy was a good friend and a “master craftsman” who truly cared about his customers, Lynch said.

Calling hours are 5-8 p.m. Friday at Lynch Funeral Home, 318 W. Broad St., Horseheads. Funeral services will be held at 11 a.m. Saturday at Trinity Episcopal Church, located at the corner of Main and Church streets in Elmira.

There was an inaccurate statement in my blog post yesterday “Good News for NY Workers’ Compensation Claimants and Physicians.” In my rush to get that information out, I didn’t read the Board’s release as closely as I should have and I apologize for that. I got an email this afternoon from Joseph Cavalcante, Assistant Director of Public Information for the NYS Workers’ Compensation Board, informing me about my error. I thank Mr. Cavalcante for reading and letting me know about the inaccuracy.　

My statement should be corrected to read “as a measure to deal with that shortage, Mr. Beloten temporarily rescinded the mandate that AUTHORIZED providers IN THE PROVIDER TEMPORARY SHORTAGE AREA file a C-4 form in order to be paid for seeing claimants. With regard to the rest of New York, authorized providers may file the new or older versions of the C-4. Doctors outside provider temporary shortage area are not authorized to submit the CMS-1500 as a result of this subject number.”

In short, only providers in the temporary shortage area are relieved of having to file C-4 forms. However, the good news for any provider statewide is that they have the option of filing the older and easier C-4 form and still have their bills enforced by the Workers’ Compensation Board.

Being in a rush is a pitfall of having a busy practice area such as Workers’ Compensation, but I’m not going to make any excuses and I do apologize for any inconvenience this may have caused.

As always thanks for reading,
Eric

______________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com

It’s not news to most New York Workers’ Compensation claimants and certainly not news to physicians and other health care providers that the Workers’ Compensation Board has been imposing increasingly rigorous paperwork requirements on providers without a commensurate increase in the amount providers can charge and the fee schedule was already set at a rate where many providers considered seeing Workers’ Comp claimants as a money-losing proposition.  

This was something that could only last so long.  This afternoon Robert E. Beloten, the Chair of the NY Workers’ Compensation Board, announced in Subject Number 046-398 that there is a provider shortage in the Rochester Area or more specifically in Monroe, Livingston, Steuben, Allegheny, Wyoming and Ontario counties.  As a measure to deal with that shortage, Mr. Beloten temporarily rescinded statewide the mandate that providers file a C-4 form in order to be paid for seeing claimants.  Providers’ bills will be enforced if they are submitted on universal claim forms (CMS-1500 or HCFA-1500) with sufficiently detailed office or narrative notes.

Hopefully this reduction in mandatory paperwork will stem the tide of providers turning away Comp claimants.   Let’s also hope that this temporary measure is made permanent.

I would only caution claimants who are temporarily disabled and who have lost time from work that if your doctor is no longer submitting the C-4 form, it’s a really great idea to remind him or her to document your degree of disability in the office or narrative note.  That little bit of advice will go a long way to making sure you get paid for your lost time.

Thanks for reading,
Eric

___________________________________________
Eric L. Johnson, Esq.
Workers’ Compensation and Disability Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529
Email: ejohnson@zifflaw.com
Web: http://www.zifflaw.com

“A World of Hurt” is right.

Last April, the New York Times ran an in-depth expose of the New York State workers’ compensation system. The articles and associated videos and resources ran under the umbrella title, “A World of Hurt.”

What did the Times discover? I quote: “New York State’s workers’ compensation system serves no one well and is arguably the most adversarial of any state in the nation.”

IME: The test doesn’t deliver the truth

As a personal injury attorney in New York and Pennsylvania and managing partner of the Ziff Law Firm – which has a Workers’ Compensation and Social Security Disability group headed by attorney Eric Johnson – I’ve long felt strongly about some of the issues this series examined.

In particular, I’m galled about the practice of giving injury victims insurance company-ordered, so-called “Independent” Medical Exams, or IMEs, to prove the validity of injuries. These exams are NOT INDEPENDENT.

As a doctor was quoted in the story: “If you did a truly pure report… you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

Check out the video embedded in this post, depicting a typical IME given by a semi-retired doctor WHO DOESN’T TAKE NOTES.

You can hear the doctor describing the patient’s pains and limitations in the video. The insurance company report of the exam was that the patient was healthy and did not have a valid workers’ comp claim.

When questioned about the different results, the doctor denies responsibility. It must be the fault of the appointment booking agency that transcribed his notes, or the insurance company, he says. Without the video record, it’s the patient’s word against the doctor’s. Guess who wins that bout.

How can insurance companies pay for “independent” exams?

IMEs are meant to flush out people who are faking or exaggerating their injuries. More than 100,000 of these exams are given each year in New York State.

The big irony of the system is that the people who are truly hurt – workers who are suffering both physically and financially – are often further victimized by the system. Their cases get ground to dust by the interlocking gears of the big insurance companies, the “expert” doctors who are essentially paid to save the insurance company money, and the “entities” – exam booking and transcription agencies – who give the doctors and the insurance companies plausible deniability.

Check back on the NY Injury Law Blog soon for my tips about IMEs. My recommendations are based on experience advising clients for more than 20 years. It’s a must-read for clients before they have what I refer to as their “Insurance” Medical Exam.

Thanks for reading,
Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

In the aftermath of a NY auto accident you may think a lawsuit is the best means of achieving justice and receiving just compensation. Don’t be shocked to hear this from a lawyer, but there may be some compelling reasons NOT to bring a lawsuit.

I’ve been receiving the New York Injury Times online newsletter by Gerald M. Oginski, an experienced accident attorney practicing in the New York City area. Gerald has some great advice and he’s given his permission for me to repost a recent article from Gerald Oginski’s Blog. Be sure to visit www.oginski-law.com to read more of Gerald’s excellent advice on the topic or to request a copy of his book, “Secrets of a New York Medical Malpractice Lawyer.”

‘7 Reasons You May Not Want to Sue’

- by Gerald M. Oginski (originally posted at www.oginski-law.com)

If you were involved in a car accident, there’s an excellent chance that you would bring a lawsuit against the driver of the car that hit you. In this article, I explain 7 reasons why you may not want to bring a lawsuit if you were involved in a car accident:

1. You were not injured. You’d think this was self-explanatory, but it’s not. There are two types of claims you can bring in an auto accident. The first is a property damage claim for the damage to your car. The second is a personal injury claim which would be for the physical injuries you suffered, the medical expenses, your past and future pain and suffering, as well as lost wages and potential lost future wages.

2. Your friends will think you are greedy. Some people feel that the only reason to bring a lawsuit is because you are looking to “make money” off the system, and why not? It’s only the insurance company’s money. Other people don’t look at their injuries as a way to make money. They’d rather go to work and earn money the old-fashioned way by working for their income.

During a trial, a good trial lawyer can make the following argument when asking a jury to understand what his client went through and why he’s entitled to compensation:

Let’s suppose that this morning Mr. Jones put an ad in the newspaper and said he’d give away one million dollars, for free! Just show up at his door, and the first one there will get it. No questions asked. How many people do you think would sprint out their door and race to be the first one in line? Thousands of people would try. But …what if you placed certain conditions on getting that $1,000,000 dollars?

Let’s say now that the ad said that in order to get that one million dollars you had to be involved in a horrific head-on collision that ejected you from the car and you landed 30 feet from the car. How many people do you think would still be waiting on that line? A lot less than started. But what if the ad went further, and said that before you could get that money, you not only had to be involved in this terrible car accident, but you had to have suffered a fractured pelvis, shattered both of your femurs (the largest bone in your body – they’re the thigh bones) had to be placed on a respirator for 20 days, intentionally put into a medically-induced coma for 10 days, and had major reconstructive surgery to fix the broken bones. How many people do you think would still be standing on that line? Not very many, but maybe one or two very desperate souls.

What if we added a few more conditions on to that advertisement, so that in order to get that “free” million dollars, you had to learn how to walk all over again, you had to spend three months in a rehabilitation center, and had to have two more surgeries to fix complications and infections that happened from the original surgery. Then on top of that, explain that their daily activities would have to be forever changed and they could not play sports, run, jog, ski, play basketball, football and everything they liked to do before the accident. How many people do you think would still be standing at the door seeking that “free” million dollars? Nobody.

That’s what a good trial attorney tries to explain to a jury in a significant accident case. The money will help pay for medical bills and modifications to their home to ambulate. It will provide a safety net for the injured victim and their family. Anyone who thinks a seriously injured car accident victim is suing because they’re greedy should read this article. In addition, they should spend at least one day in a victim’s home watching them struggle with daily activities such as tying their shoes or buttoning their shirt. Only by showing someone the tremendous hardships you face will they realize how important it is to obtain full compensation for your injuries.

3. What good will the money do you? This is a famous defense attorney line. This is used during negotiations, and also used during summations. “Plaintiff’s attorney is asking for millions for his client. Think about this … what good will the money do him? He can’t use it. His medical expenses … sure, give it to him, he deserves it. But the millions he’s asking for? No way. His injuries prevent him from going out and spending such huge exorbitant amounts of money.

The reply to this argument is not what you think. As much as you’d like to shake some sense into the defense lawyer, this is a better approach. “Look, your client created the problems that my client suffered. He didn’t do anything to create this accident or his injuries that stem from this accident. My client has incurred medical expenses in the thousands of dollars. Who is going to pay for those expenses? Should he, or his insurance company, have to foot the bill for your client’s wrongdoing? I don’t think so. That only covers his medical expenses in the past. What about future medical expenses that he’s sure to have? You’ve got to cover that as well.

This doesn’t even begin to address the compensation that he’s entitled to for the suffering he’s endured from the time of the accident until today. Don’t forget about the future suffering he’ll have from his injuries and medical care he’s going to need to treat his ongoing problems. This is known as past and future pain and suffering. Thankfully for injured victims in New York, there is no cap on pain and suffering awards.

To answer the question above … it will do a lot for the injured victim and their family.

4. You don’t know a good New York lawyer anyway. If you don’t know a good lawyer, you should keep looking. There are many ways to find a good attorney. Importantly, you want an attorney who has handled many cases just like yours. You want someone with experience. The question of whether you want a big New York City firm, a small firm, or even a solo practitioner is simply a matter of personal preference. Keep in mind that whomever you choose, you must feel comfortable with him or her. Always ask, “Who is going to be handling your case day to day?” “Who will be appearing on your conferences with the Court?” “Who will appear at your deposition, and the depositions of the people you have sued?” “Who will be trying my case if it goes to trial?”

If you don’t mind many different attorneys handling different parts of your case, then you should have no problem going to a large firm.  If you want the same attorney to handle your case from beginning to end, you may want a small firm or experienced solo practitioner.

5. The chances of you recovering money are not good unless you have a significant injury. That may be true. If you have a minor injury, then your compensation will likely be minimal. If your injuries are significant, the compensation you may be entitled to may also be significant. Each case will differ. The answer also depends on where your case is venued – that is, which court it’s in. Is it in the Bronx or Brooklyn? Or is it in Westchester or upstate Albany?

If you don’t have any injury, or the injury was minimal, your case may be dismissed without ever getting to trial. Your injuries may not meet the “threshold” that is needed to continue your case. There are specific guidelines relating to the type of injury you must have to bring a case in the Supreme Court of the State of New York – which by the way, is the trial-level court.

6. The driver of the car that hit you will not like you if you sue him. My response is “So what?” Why would you care about what the other driver thought? You shouldn’t. The other driver was careless and his carelessness caused you permanent injury. If you want to live your life worried about what other people think, then you should re-think what you do on a daily basis.

A decision to sue someone isn’t about whether you’re popular or whether someone will or will not like you. It’s about your fundamental right to be repaid something that is owed to you. When a wrongdoer causes harm, he becomes obligated to pay you for your harm and the disability that he has caused. That’s an obligation we as a society recognize, not just in New York, but throughout the United States.

7. Your picture might appear in the newspaper. In most accident cases in New York your picture will not appear in the newspaper. Most cases are not deemed “newsworthy” by the local newspapers. They’re a common occurrence and unless it’s an extremely slow news day, or there’s something unusual about your particular case, it is unlikely your picture or your case will get any mention in the newspapers.

Conclusion

After reading this article you should have a better understanding of whether you should or should not bring a lawsuit if you’ve been injured in a car accident in the State of New York.

Thanks for reading, and thanks to Gerald for allowing the NY Injury Law Blog to post his advice!

- Jim
_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com

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Congratulations are in order for my colleague Jim Reed, managing partner of the Ziff Law Firm. Jim, who is a busy guy with his practice and legal blogs, was just reappointed to serve on the New York state Independent Judicial Election Qualification Commission.

Each judicial district in New York has an IJEQC. They screen judicial candidates, reviewing the qualifications of candidates seeking election to our state’s high courts: Supreme, County, Surrogate’s, Family, New York City Civil, District and City.

Each commission has a limited number of members, and they are VERY carefully selected. Chief Judge Jonathan Lippman picked Jim Reed to serve on the commission. Jim is one of only 12 commission members selected from the entire Sixth Judicial District.

The Commission’s work is important. Chief Administrative Judge Ann Pfau, described how the Commission “promotes  greater confidence in the judicial election,” because voters know that judges have been evaluated and they have the qualities to do a good job.

Judge Pfau even thanked Reed for continuing to serve on the Commission, specifically because of the considerable time and effort it takes.

Jim has been practicing for more than 20 years, specializing in personal injury, medical malpractice and legal malpractice cases.

Some of his other achievements:

• He’s written two books about  “Learn the Five Deadly Mis­takes that can KILL Your Acci­dent Case!” and “Learn the Five Secrets to Buying Auto Insur­ance in NY.”
• He has personally handled several million dollar-plus cases, and is an active member of the New York Academy of Trial Lawyers and the New York Trial Lawyers’ Association.
• He has also been honored as a New York Super Lawyer by the publishers of Law & Politics Magazine.
• He has two blogs, the NY Injury Law Blog AND the NY Bike Accident Blog.

I could probably go on some more, but I wouldn’t want to embarrass Jim or anything! It is a big deal to be appointed – again – to the  ndependent Judicial Election Qualification Commission. I hope you’ll join me in congratulating Jim Reed for this honor.

Sincerely,

Adam
______________________________

Adam M. Gee, Esq.
NY and PA Personal Injury and Malpractice Attorney
The Ziff Law Firm, LLP
303 William Street
Elmira, NY 14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
www.zifflaw.com

A question I am frequently asked is: Can my insurance company raise my premium due to an accident or traffic ticket?

The answer is YES, unfortunately.

I want to share details about this answer from the official N.Y. Insurance Department website. It’s important for drivers to understand just how the insurance companies justify charging you more and the terminology they use.

Such an increase is known as a surcharge. Surcharges are based on the fact that a driver who has previously been at fault in one or more accidents, or has a record of traffic convictions, has an increased likelihood of being involved in future accidents.

Insurers “classify” drivers according to criteria such as:

• Age
• Location
• Vehicle type and mileage

To further refine those classifications, many insurers use “merit rating plans,” a point system in which increases are applied according to an individual driver’s record (traffic convictions and accidents).

Surcharges are applied to liability (bodily injury and property damage), collision and no-fault (PIP) coverages, and are only allowed for:

• Accidents involving bodily injury, or losses to property in excess of the accident reporting threshold ($1,000), where the insured driver is at fault, or
• Convictions for certain violations which are chargeable under the Insurance Law.

No-one intends to get a traffic ticket or have a car accident. A surcharge may seem almost like a punishment, but it really a way for the insurance company to balance premiums against risk.

A surcharge is used as a tool to properly price the exposure the insurer is writing, NOT as a means to recoup payment made under a claim.

Another important point: The total dollar amount paid as the result of a claim does not affect the surcharge. For example: An insured person being surcharged for a particular accident will pay the same amount regardless if the damages were $10,ooo or $50,000.

Thanks for reading,

Jim

_________________________________________
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com www.zifflaw.com

E-mail me at FreeReports@zifflaw.com for two free books:
NY Car Accidents and NY Car Insurance Secrets YOU Need to Know.

Becoming a victim of a dog attack can be a devastating experience – both physically and emotionally. The physical wounds can range from cuts, to broken bones to disfiguring or even life-threatening injuries.

The emotional after-effects can be even more severe.  Dog attacks may affect the life of the victim in many ways:

Attacks may cause the victim to miss work and may result in a complete change in the victim’s life due to the injuries.

Many victims must deal with concerns such as stress or depression due to physical and financial limitations as a result of the attack.

Victims may also have to deal with the psychological symptoms due to experiencing a traumatic situation that may range from fear to flashbacks or anywhere in between.

Finally, victims may be terrified to deal with dogs and may be robbed of the wonderful experience of owning a pet.

Who is considered a victim of a dog attack? Those who are attacked by a dog are the obvious victims.  However, some folks find it surprising that those injured fleeing a potential attack also have legal options.

What Should I Do if I Have Been Attacked?

If you have become a victim of a dog attack, there are some steps that you should take. 

• First, seek medical attention. Whether you call 911 or go to the hospital on your own, DO NOT WAIT.
• Second, call the police or animal control as soon as possible to let them know that you were attacked. It is especially important to call the police or animal control quickly when the dog is loose or you do not know who it belongs to; a prompt call may allow them to find the dog.  Unfortunately, without the dog or knowledge of who owns dog, treatment may be more difficult for you, others may be in danger of similar injury and future legal proceedings may be impossible.
• Third, when speaking with police, animal control and medical providers, ask for documentation. If no documentation is available at the time, ask for report numbers or names of the individual you are talking to. Fourth, document your injuries, medical visits and experiences through pictures and notes.   This will help you remember what you’ve gone through as a result of this injury and may be of help in future legal proceedings.
• Finally, do not hesitate to contact an attorney that specializes in this type of case. Most clients feel that having someone going through the process with them is immensely helpful.  Ziff Law can help; we have years of experience handling this type of case.

What Happens in the Legal System?

In New York, there are a few different avenues to deal with dog attacks that provide different outcomes.  First, there is a dangerous dog proceeding.  In addition, there is a civil case against the owner of the dog.
What happens in each? Below, I will explain both types of proceedings briefly including what the proceeding is, what it is used for and how it may affect you, the owner and the dog. For further questions, help with the process, or to talk about your case, please feel free to call the Ziff Law Firm for expert advice.

Dangerous Dog Proceeding

A dangerous dog proceeding is a proceeding under Section 121 of Agriculture and Markets Law.  See the blog post ” ‘Dangerous Dog’ Law in New York State” for a more detailed description.  However, basically, a dangerous dog proceeding is a proceeding to impose penalties on the owner for having a dangerous dog which allows society to place controls on the dog.

As a victim of a dog attack, your involvement in this process will be contacting animal control and asking for a dangerous dog proceeding if animal control does not already suggest it. The proceeding is usually held in a local court and you may have to testify at the proceeding to help prove that it is “more likely than not that the dog attacked or threatened to attack.”  If the court finds that the dog was dangerous, the court will impose penalties against the owner and dog.

How does this proceeding affect the owner, the dog and you? Typically, the owner will only be fined unless the dog has attacked in the past; if the dog has attacked in the past it is possible that the owner may go to jail for up to 1 year.

Will the dog be euthanized or “put down”? Although many believe that this happens frequently, in reality, the opposite is true. Euthanizing a dog is a last resort and typically the court does not decide to do that unless the dog’s attack causes death or serious injury to a person or other animal or the dog has attacked in the past.  Rather, if the court finds that the dog is dangerous, they will likely impose other restrictions on the owner and dog to keep society safe from the animal.  For example, the court may require the pet be trained, require leashing or muzzling when in public and/or request confinement, among other things.

As a victim of a dog attack, a dangerous dog proceeding may help you by covering some of the costs of your injuries.  However, the costs are the only things that are covered.  Therefore, to reach additional expenses including emotional injuries or costs due to loss of work, a civil case against the owner is necessary.

A Civil Case: Liability Against the Pet’s Owner

As discussed above, bringing a civil case against a dog owner is different than a dangerous dog proceeding.  A civil case focuses on whether the owner is at fault, i.e., liable, and should pay for the victim’s expenses; therefore, a civil case is more about the victim’s experience than a dangerous dog proceeding.

For an owner to be held responsible for their dog’s attack in a civil case, it must be proved that the dog had “vicious propensities.” This concept is fairly complex; for more details see my “Vicious Propensities” posting.

However, in short, we can think of vicious propensities as something in the past that should have tipped off the owner that the dog might have a tendency to attack.  In a civil case, a jury decides whether the dog’s past actions were enough to “tip off” the owner by considering whether a reasonable person would have thought that the dog might attack. (For more details about what past juries have considered enough to hold owners responsible, you should also check see my “Vicious Propensities” posting on this blog.)

Unlike a dangerous dog proceeding, a civil case does not fine an owner or place controls on the dog; in fact, a civil case does not have any effect on the dog responsible for the attack.  Rather, a civil case compensates the victim for the losses associated with the attack if a jury believes the owner should have known the vicious propensity of his or her pet.

As a victim of a dog attack, a civil case may be helpful because it can allow you to recover additional costs related to the incident that would not be permitted in a dangerous dog proceeding.

In Summary

The dangerous dog proceeding and the civil case have different effects on the parties involved.  There are a few main differences:

1. A dangerous dog proceeding may impose for some restrictions on the attacking dog, e.g., requiring a leash, muzzle or training and, in extreme cases, euthanasia; a civil case cannot impose restrictions on the attacking pet.
2. A civil case allows for more compensation for a dog attack; a dangerous dog proceeding allows only costs to be covered.

Surprisingly, there is also some overlap between dangerous dog proceedings and civil cases. A finding of a dog as dangerous can be helpful in establishing vicious propensities of the dog in a civil case.

Can I proceed with both? It is possible to proceed with both. In fact, many people often find it satisfying to proceed with both because they are able to be involved in protecting others from a similar experience by helping to impose controls on the attacking pet as well as making sure they, as a victim, are fully compensated for their injuries and losses.

This article has been written to give you a very basic idea of what to do if you have been a victim of a dog attack.  Being such can be a very traumatic and difficult experience. Please do not hesitate to contact me directly at jreed@zifflaw.com or call 800-ZIFFLAW (943-3529) to discuss your legal options.

Thanks,

Jim

_________________________________
James B. Reed
NY & PA Dog Bite Lawyer
Ziff Law Firm, LLP
303 William St., Elmira, NY 14902
Phone: (607) 733-8866 Fax: (607) 732-6062
Toll-free: (800)-943-3529

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