First, a mother and her 1-year-old child were injured, then a 17-year-old girl was struck 45 minutes later!

In the Elmira/Corning area where I live, there seems to be a growing trend of cars and trucks hitting pedestrians and bicyclists. I think this is a combination of more walkers/bikers and more cars/trucks sharing the roads together with a huge increase in the number of distracted drivers on the road.

These drivers are distracted by phones, radios, texting — or they are simply not paying attention.

In both Elmira pedestrian injury cases, the pedestrians were crossing the four-lane Clemens Center Parkway, which is a nightmare for pedestrians because they have to move quickly to get across safely before the light changes.

How many times have we seen pedestrians stranded unsafely in the middle of an intersection, waiting for the light to change again? This problem is especially obvious on a road like the Clemens Center Parkway, where the road is four lanes wide and there is a higher speed limit.

BUT REMEMBER:  NY LAW REQUIRES A MOTOR VEHICLE TO YIELD TO A PEDESTRIAN!  So regardless of the color of the light, if you see a pedestrian on the road, follow the law and give them a safe distance.

In one of the accidents, a mother and her 1-year-old child in a stroller were struck. They suffered minor injuries, police said.

According to news reports, the first accident occurred at about 8 p.m. Tuesday at the Clemens Center Parkway and East Fifth Street, Elmira, NY. The mother and child were transported to Arnot Ogden Medical Center and the driver of the pickup truck accused of striking them, Clayton Stevens of Lowman, was charged with Failing to Yield and Driving with a Suspended License.

A 17-year-old girl was hospitalized with internal injuries and possible broken bones after a second accident 45 minutes later involving a pedestrian at the Clemens Center Parkway and South Avenue on Elmira’s Southside. She is being treated at Robert Packer Hospital in Sayre. Police said the investigation continues.

See the news reports from WETM-TV and the Star-Gazette.

Remember the 17-year-old girl, and the mother and her 1-year-old child, the next time you’re driving on Clemens Center Parkway and SLOW DOWN. As you approach intersections, even if you have a green light, scan both sides of the road for pedestrians. Remember there may be people still trying to cross the road!

Finally, FOCUS ON THE ROAD — not your text messages or your missed phone calls or talk radio or talking with your passengers.

Someone else’s life may depend on you paying attention to the road!

Thanks for reading.

Thanks, Jim

_________________________________

James B. Reed
NY & PA Injury & Malpractice 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

The use of event data recorders starting in 2013 will lead to big changes in car accident reporting.

Everyone has read about event data recorders (EDR) — usually called “black boxes” — that investigators find at the scenes of plane crashes. They are valuable tools for investigators in learning the exact details of what happened in the moments before and right up to the time of the crash itself.  Black box data reveals speed, braking, angle of forces, timing and a whole host of other valuable information.

My Westchester County colleague, Mark A. Siesel, recently pointed out that black box data will be more widely available in car accident cases starting in 2013. Starting in 2013, the National Highway Traffic Safety Administration will require that all vehicles capture the same data in the same format. There will also be a tool available to access all the data.This will be a huge change because it will allow a treasure trove of information to be available to those people investigating how a crash occurred.

My recent blog post on bicycles with GPS-enabled computers, coupled with the news about vehicle black boxes, provide cold, hard, objective proof of issues that historically been tough to prove — speed of a vehicle before impact, speed at impact, braking times and so on.

For now, the data from the black boxes in vehicles is not easily accessed by third parties such as insurance companies and litigants in car accident cases, even though between 65 percent and 90 percent of vehicles now made have EDRs, according to government figures from 2008.

Among the information available — the change in forward speed of the vehicle; the maximum change in speed; speed prior to impact; whether the driver applied the brake; seat belt use; the number of crashes and much more.

In New York and 12 other states (not Pennsylvania), privacy concerns led to laws requiring an owner’s permission to download the data. In New York, the owner is the person with the title to the vehicle.  Because of these laws, a vehicle owner, particularly one who felt that they might be at fault in causing a collision, could legally withhold permission to download their vehicle’s data.

OBTAINING BLACK BOX DATA QUICKLY CAN BE CRITICAL!

A big concern should be about the time limit on the access to the data. The data is only stored temporarily, for six to eight weeks of normal use of a vehicle.

This is another reason why it is critically important that injured parties promptly contact an experienced accident lawyer because there are many complex issues regarding preserving, analyzing and presenting the scientific data. Sad to say, it is never a good idea to try to perform your own brain surgery. Same goes for trying to handle your own injury case in Elmira, Corning and the Twin Tiers  ….

Thanks for reading.

Jim

A new campaign aims to cut down on accidents caused by unnecessary distractions.

We live in a world of distractions, and a new campaign launched this week in the Southern Tier aims to remind everyone – pedestrians, bicyclists and motorists – about the dangers of not paying attention.

The traffic safety boards of Chemung and Steuben counties kicked off “Be Alert, Distraction Kills” in hopes of curbing accidents.

“We had a spate of bicycle and pedestrian deaths in Elmira, but that alone was not the reason for this initiative,” Jay Schissell, vice chairman of the Chemung County Traffic Safety Board and director of the Elmira-Chemung Transportation Council, told the Star-Gazette newspaper at a news conference.

“If there’s one commonality to the crashes we’ve been having recently, it’s distraction,” he added. “Distraction on the part of all users in the transportation system.”

He’s right! We all have the potential to get distracted when we walk, ride or drive – too often by cell phones and other devices.

But it is OUR JOB (and our legal obligation) to pay attention!  Failing to do so needlessly endangers other people and it just is NOT right that we should put someone else at risk of serious injury (or death) just because we don’t care enough to pay attention!

Schissell listed some all-too-common distractions – cell phones, CD players in cars, eating, putting on makeup, wearing headphones and using illegal drugs.

We forget how dangerous distractions can be until someone gets hurt!

Law enforcement will be involved in getting the message out, too.

The Elmira Police Department used a grant to buy a distracted driving simulator to be used in classrooms.

“We don’t want it to be just a video game,” Police Chief Michael Robertson told the Star-Gazette. “We want it to be an educational tool.”

Corning Police Chief Salvatore Trentanelli said they also plan an educational campaign, adding, “However, there will be some enforcement maintained by the police agencies.”

The campaign will also include portable message signs along some roads and YouTube videos, according to news reports, but in the end, it is up to all of us to STAY FOCUSED!

“It’s not for bicyclists, it’s not for pedestrians, it’s not for motorists,” said Schissell of the campaign. “It’s for everybody.”

Let’s remember that – and BE SAFE!

To see the news reports:

Elmira Star-Gazette

The Leader in Corning

WETM-TV

WENY-TV

YNN

Thanks, Jim

Boaters are used to being warned about alcohol, speed and safety vests.  But a May 31 fatal accident in Erie, Pa., serves as a stark reminder of the dangers boaters face when refueling.

A 25-year-old Erie woman was killed and nine others, including a 2-year-old child, were injured when a 32-foot Wellcraft exploded after refueling at the Erie Yacht Club.

The Pennsylvania Fish and Boat Commission is leading the investigation with the Erie Bureau of Fire, according to news reports.

Erie fire investigators told the Erie Times-News newspaper that they believe a faulty gasket in one of the boat’s two tanks, which combined can hold 200 gallons of fuel, allowed gas fumes to back up into the boat’s engine compartment instead of being blown out.

The buildup of fumes fueled an explosion that investigators said was set off when the boat backfired as the boat’s owner tried to start the boat after refueling, the newspaper reported.

Here is the latest news: Investigators will now meet with experts to try to determine the cause of the explosion, the newspaper reported June 12.

Fuel fires or explosions caused three deaths and 113 injuries in boating accidents nationwide in 2009, according to the most recent information from the Coast Guard.

Refueling tips

The Coast Guard offers boaters these refueling tips:

Before fueling

• Put out all smoking materials and secure your boat to the dock.
• Know how much fuel your boat holds and how much you need.
• Turn off engine, electronics and extinguish all flames.
• Send passengers ashore and close hatches, ports and doors.
• Remove portable tanks and fill them on the dock.

During fueling

• Make sure you have selected the type of fuel you need.
• Be certain fuel is going into the proper fill entry.
• Use an absorbent pad or doughnut around the deck fill to catch spills.
• Maintain contact between the nozzle and deck fill to prevent sparking.
• Hold the nozzle when refueling — don’t use a hands-free clip.
• Fuel slowly and listen for a change in tone as the tank gets full.
• Don’t rely on the automatic shut-off device as they often don’t shut off in time. Marina fuel pumps flow at a faster rate than land-based pumps.
• Resist topping off. As the temperature rises, fuel expands. Fill tanks to 90 percent capacity to leave room for expansion.

After fueling

• Wipe up all spills and drips on deck from the overboard fuel vent. Dispose of used pads properly.
• Do not use detergents to disperse a sheen or spill on the water. It’s illegal.
• Open ports, hatches and doors to ventilate.
• Before starting the engine, operate the blower for three to five minutes.
• Sniff the bilges and engine compartment for fumes.

Remember that boating safety begins at the dock!

During our too short summers I am on Keuka Lake with my family as often as weather permits.  Fellow Ziff Law attorney Jim Reed spends his summers on beautiful Seneca Lake.  We are boaters ourselves, and know the pressure that Captain Dad is under to get the family out on the water as soon as possible.  There are so many things to remember, and most of them take time to address.  I have experienced the temptation to fire the boat up immediately after gassing up.  The boat is full of kids intent on a day of swimming, sunning, skiing and tubing – the cooler is packed  – the sunscreen is on  – everyone wants to get started.  It is at this point that we have to do the responsible thing.  Turn on the blowers, open the hatch and sniff for gas, make sure that everything is safe before you turn that key. The tragedy in Erie, Pennsylvania that inspired this story is a horrific reminder of what can happen when we take shortcuts.

Thanks for reading, and stay safe on the water this summer!

Adam
_______________________________
Adam M. Gee, Esq.
NY and PA Injury and Accident 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 local man and woman were very seriously injured last week in a car accident that’s cause is still unknown. WETM reported the incident in the story “Southport Woman in Critical Condition After Crash” (pasted below). The woman veered out of her lane and hit a bakery truck in the oncoming traffic on Route 352. The truck driver was seriously injured too.

A crash like this raises a lot of questions: “What happened?” and “Why?” And then “What happens next?”

After an auto accident, that question is strongly connected to Auto Insurance. How does it work to cover damages and injuries? It’s a complicated topic, which I’ve helped many clients understand. There are even a different set of rules when motorcycles are involved, a topic I write about frequently on my motorcycle blog, the NY Biker Law Blog.

In the Route 352 accident, the driver of the car, who appears to be at fault, will have coverage for her injuries through the No-Fault portion of her policy. The bakery truck driver was likely working at the time of the accident, meaning that rather than No-Fault, his Worker’s Compensation carrier would be responsible for paying his medical bills and lost wages.

What is “No-Fault” Insurance?

We have an FAQ section at ZiffLaw.com devoted to the legal issues our firm covers, from injuries and accidents to family law; bankruptcy, medical malpractice to real estate. There’s a section explaining No-Fault coverage and how it works.

No-Fault Insurance in New York state means that the insurance carrier for your vehicle, rather than the insurance carrier for the other vehicle, pays your medical bills or lost wages. This is true regardless of who was at fault in causing the accident, hence the name.

Some No-Fault benefits:

• All No-Fault policies in New York are required to provide TOTAL coverage of no less than $50,000 for both medical costs and lost wages.
• No-Fault covers hospital and medical expenses.
• No-Fault covers lost wages at 80%, up to $1,000 per month (that’s the N.Y. minimum, some policies pay more) for a period not exceeding three years

What doesn’t No-Fault cover?

No-Fault does not apply to property damage claims. Such claims are usually paid for by the insurance carrier for the vehicle that caused the collision or by your carrier if you carried collision coverage.

No-Fault does NOT apply to motorcycles. Check out the explanation in my motorcycle insurance FAQs to see how motorcyclists are treated differently, or order a free copy of my book, “Would You Ride Your Motorcycle Naked?” It explains how many motorcyclists are riding “naked” because they don’t have the proper insurance coverage – and don’t even realize it.

It’s sad when accidents happen and people get injured. I think about Chris Ackley, the truck driver, just doing his job and probably a family and children relying on him at home.  He did nothing wrong, and yet he is now laying in a hospital bed.  No one yet knows why the accident happened, why the other driver left her lane. We have seen it happen many, many times in other cases. She could have been distracted by her cell phone, texting, changing the radio station, eating, or even putting on nail polish, the cause of a fatal accident I recently blogged about in the post “‘Nail Polish Crash’ Driver Sentenced for Causing Fatal Motorcycle Accident.”

Thanks for reading and please drive safely!

Adam

_______________________________
Adam M. Gee, Esq.
NY and PA Injury and Accident 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

Visit the NY Biker Law Blog at www.NYBikerLawBlog.com!

Southport Woman in Critical Condition After Crash

Reported by: Naveen Dhaliwal (ndhaliwal@wetmtv.com)

BIG FLATS – A Southport woman is in critical condition in Rochester.

The Chemung county sheriff says the crash happened about 10:15 am on Thursday morning on State Route 352 in the Town of Big Flats.

They say Christina Pappas of Southport was driving her jeep Cherokee westbound.  She veered into the eastbound lane and hit a Stroman’s bakery truck.

The Sheriff says the truck driver is 52-year-old Christopher Ackley.  Ackley is in stable condition at a local hospital.

Pappas is in critical condition in Rochester.  The Sheriff says the road was closed for about an hour and a half.  The road is open now.

I am in the process of drafting a complaint against a doctor, nurse and hospital for extremely egregious medical malpractice that led to the premature and unnecessary death of an Elmira man.  Included in my complaint is a claim for punitive damages.

In drafting the complaint I did a fair amount of research about punitive damages in New York, and learned several helpful tips for both practitioners and potential claimants.

At the onset, it is critical to understand what punitive damages are designed to do as well as the strict limitations New York Courts apply in their application.  New York’s tort system (the system that allows injured people to recover against the people or entities that caused their injuries through negligence, malpractice and intentional conduct,) generally allows an injured person to only be compensated for actual economic and non-economic injuries directly related to his or her injuries.  These types of damages are called “compensatory damages” because they are designed to compensate victims.  Compensatory damages include such things as lost wages, medical bills, pain and suffering, loss of enjoyment of life and future treatment costs.

Punitive damages, on the other hand, are designed to punish and deter the wrongdoer or “tortfeasor”.  In other words, the purpose of awarding punitive damages is to send a message to the torfeasor and all similarly situated persons or entities that the conduct alleged is so egregious and unacceptable as to require punishment in order to deter others from engaging in the same types of acts.

In 2008 the New York Law Journal published a very interesting article called “The Rules On Punitive Damages.”  In this article authors Steven Napalitano and Hayden Coleman explain, “[t]hese damages, also known as exemplary damages, serve a dual purpose: first, to punish the tortfeasor, and second, to deter both the wrongdoer and others similarly situated from engaging in the same conduct in the future.”

There is no question the bar for allowing an injured person to recover punitive damages in New York is set very high.  In a recent landmark case, New York’s Court of Appeals (the highest court in New York) observed:

“Punitive damages are permitted when the defendant’s wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations”. (Ross v Louise Wise Serv., Inc., 8 NY3d 478, 489, quoting Walker v Sheldon, 10 NY2d 401, 405; see Prozeralik v Capital Cities Communications, 82 NY2d 466, 479; Sharapata v Town of Islip, 56 NY2d 332, 335).

Indeed, Napalitano and Coleman assert “New York courts have strictly limited punitive awards to the most reprehensible instances of wrongdoing; they are only awarded in cases involving gross, wanton or willful fraud, or other morally culpable conduct.”

So, the question emerges: are punitive damages appropriate in my case?  Of course, the analysis required to answer this question must be performed on a case-by-case basis.  However, there are a few general considerations every practitioner and potential claimant should keep in mind:

1.   Does the conduct warrant punitive damages?

This is the million dollar (figuratively speaking, of course) question.  In many ways the answer starts in your gut.  Do the tortfeasor’s actions make you mad? Really mad?  Seething mad?  Do they make you want to call the newspaper and the cops and 20/20 because this sort of thing should never happen in the USA?  If the answer is a resounding yes, then perhaps you have a claim.

Much more critically, do the torfeasor’s actions make your 72 year-old/very fiscally conservative/wary of lawsuits/cheerleader of tort reform mother-in-law seething, red-faced mad?  Too often we see our cases through a rose-colored lens, and, after having sat with a grief-stricken family, believe punitive damages are a given.  They’re not.  Ever.  Vet your case out to your neighbors, your families, your colleagues.  Become part of some active list-serves.  Read verdict sheets.  There is simply no substitute for good old research.  It can save you a lot of time (and face) down the road when you are answering the summary judgment motion the defendant will surely bring.

2.   Would the conduct have made your mother-in-law seething, red-faced mad at the time it occurred?

Do not overlook this step!  Determine when the conduct occurred.  Is this a toxic tort case that involved conduct in the 1950’s?  Is this an asbestos case where the building was erected 50 years ago?

According to Napalitano and Coleman, “a claimant should be precise in defining the time period of the conduct allegedly justifying punitive damages. In cases where the conduct at issue happened many years ago, as is often the case in the toxic tort context, a plaintiff must be prepared to show that the conduct was outrageous based on the norms and knowledge then prevailing. Defense counsel may seek to engage an expert witness to establish that the conduct was not sufficiently malicious or vindictive at the time. Finally, if circumstances have changed so that the allegedly offending conduct could not happen today, as with a change in the law, defense counsel may properly assert that the goal of deterring future improper conduct cannot be satisfied.”

3.   Is the claim for punitive damages insured?

As usual, insurance is the 110 pound gorilla in the room.  It is one thing to be a crusader and secure a 10 million dollar punitive damages verdict for your client, but a whole other beast to actually translate the judgment into money your client can take to the bank.

Unfortunately, it appears claims for punitive damages are generally uninsurable in New York.  New York’s Court have ruled the public policy underlying a claim for punitive damages – that tortfeasors actually endure punishment in order to deter future bad conduct – is eradicated if insurance companies simply pick up the tab.

The law firm McCullough, Campbell & Lane, LLP created a detailed list of the rules governing the interplay of punitive damages and insurance in all 50 states, including New York:

Directly assessed punitive damages are not insurable in New York. See Public Service Mut. Ins. Co. v. Goldfarb, 425 N.E.2d 810 (N.Y. 1981); Hartford Accident & Indem. Co. v. Village of Hempstead, 397 N.E.2d 737 (N.Y. 1979); Soto v. State Farm Ins. Co., 600 N.Y.S.2d 407 (N.Y. App. Div. 1993), aff’d 635 N.E.2d 1222 (N.Y. 1994); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Ambassador Group, Inc., 556 N.Y.S.2d 549 (N.Y. App. Div. 1990), appeal dismissed, 571 N.E.2d 85 (N.Y. 1991).

In addition, the court in Home Ins. Co. v. American Home Products Corp., 550 N.E.2d 930 (N.Y. 1990), aff’d in part, rev’d in part, 902 F.2d 1111 (2d Cir. 1990), applied the prohibition to out-of-state punitive damages awards for which the insured seeks coverage in New York. The court pointed out that “the punitive nature of the award, coupled with the fact that a New York insured seeks to enforce it in New York against a New York insurer … calls for the application of New York public policy.” 550 N.E.2d at 933. See Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 642 N.E.2d 1065 (N.Y. 1994) (noting that only when a statute allowing indemnification awards damages that serve a wholly punitive, and not compensatory, purpose are they precluded by New York policy).

Vicariously assessed punitive damages are not insurable in New York. See Zurich Ins. Co., 642 N.E.2d 1065.

This of course does not mean claims for punitive damages should never be asserted in NY, nor does it mean they are always uninsured.  It simply means practitioners should have their eyes wide open with respect to collections matters.

Thanks for reading!

Christina

_________________________________
Christina Bruner Sonsire, Esq.
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com
Blog: NYInjuryLawBlog.com

Fourth of July in the New York’s Southern Tier was filled with celebration and family fun, though several accidents resulted in needless death.  In one accident, a man was killed on Waneta Lake while riding on a jet ski.

According to WETM TV, 43-year-old Lee Brandt of Wisconsin was on a jet ski with friends Sunday.  While operating his jet ski along the east shore of Waneta Lake in a northbound direction, Brandt turned in front of a second jet ski and collided with it.  Brandt died a short time later.

This sad story presents a good opportunity to review some basic jet ski safety tips:

Learn how to operate a jet ski before climbing aboard.

Jet skis look uber-cool, and the sight of many young people riding them leads to the misconception that they are easy to drive.  However, you wouldn’t hop on a motorcycle and peel away before learning how to operate it.  Take your time, learn to drive and make the lake safe for everyone.

Wear a life jacket.

For most people this is common sense, but I still amazed to see people scream by aboard a jet ski with nothing on top but a shiny layer of tanning oil.  Life jackets are a must – there is no way around it.  Moreover, New York law requires anyone who uses jet ski to wear a life jacket, and your civil case in the event you are injured could be substantially impacted if you “forget” to wear it.

Stay away from other watercraft.

Most jet ski injuries are caused by collisions with boats or other jet skis.  To be safe, stay AT LEAST 100 feet away from other watercraft, divers, water skiers, tubers, knee-boarders, wake-boarders, rafts, and swimmers.

Never jet ski at night.

The bottom line is that open water is dangerous at night. It is nearly impossible to accurately gauge your distance from other watercraft.  Simply put, don’t jet ski at night.  Ever.

Don’t Drink and Ski.

This is another common sense point, but it is worth mentioning.  Drinking at the lake is a favorite pastime for many people.  If you plan to drink before you jet ski, make sure it is or the nonalcoholic sort.

Thanks for reading,

Christina Sonsire

NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com
Blog: NYInjuryLawBlog.com

The Elmira Star Gazette reported that Steuben County officials identified the driver in a one car crash that occurred at about 5:00 A.M. on Wednesday, June 30, 2010, in Hornellsville.

Sheriff identifies driver in accident that injured 9

The Steuben County Sheriff’s Office named the driver in the one-car accident that injured nine teens Wednesday morning.

Six of the teens remain hospitalized today, deputies said.

The investigation is ongoing, the sheriff’s office said.

As I reported in an post earlier today, this terrible tragedy highlights a number of issues all parents need to consider.  Aside from the obvious concerns about underage drinking and teen drivers, an accident such as this with multiple victims raises several important questions regarding auto imsurance coverage.

Please take the time to read my earlier post, and do not hesitate to contact me if you have questions about your own coverage.  Many times coverage questions are asked after an accident occurs, and generally that is just too late.

Thanks for reading,

Christina

_________________________________
Christina Bruner Sonsire, Esq.
New York and Pennsylvania Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com
Blog: NYInjuryLawBlog.com

A horrific accident involving nine teenagers occurred at approximately 5:00 A.M. on Wednesday, June 30, 2010, in Steuben County, New York (near Corning).  Aside from highlighting the dangers associated with underage drinking and teen drivers, the accident raises several critical insurance coverage issues that every parent should understand.

According to the Elmira Star Gazette (full article pasted below, nine teens were injured in a one car accident in the Town of Hornellsville following an underage drinking party.

The parents of the nine injured teens are facing — or surely will face — tough questions with respect to how or if their children will be compensated as the teens begin the long road to recovery.

In general, parents of children injured in one-car motor vehicle accidents involving multiple passenger need to be aware of the following insurance coverage information:

1.  BASIC NO-FAULT COVERAGE – New York State Insurance Law requires every driver to provide at least $50,000 of Personal Injury Protection (“PIP”) to each passenger of his vehicle regardless of whether he caused the accident or not.  This type of insurance is generally referred to as “No Fault Insurance” because it is triggered even if the driver was not at fault.

What does this mean?  Every passenger in a vehicle is entitled to $50,000 of PIP coverage under the driver’s insurance policy in the event the passenger is injured in an accident.  In general, PIP covers economic losses such as lost wages and medical bills.

Why is this important?  Here, assuming the driver had proper insurance coverage, all nine teens (the driver is entitled to PIP benefits as well) are likely entitled to receive up to $50,000 to compensate them for their economic loss.  In addition, a passenger may be able to collect No Fault PIP benefits under his own policy once PIP iunder teh driver’s policy is exhausted.  This is called “stacking” PIP coverage, and it often allows a passenger to receive up to $100,000 to cover economic loss.

2.  ADDITIONAL NO-FAULT COVERAGE — Residents of New York are also free to purchase additional No Fault coverage in the event they or members of their families are seriously injured in an accident and their economic losses exceed $50,000.  The two primary types of additional coverage are called Additional Personal Injury Protection (“APIP”) and Optional Basic Economic Loss Coverage (“OBEL”).

What does this mean?  If you or a family member are seriously injured in an accident and your economic loss — again, I am primarily talking about lost wages and medical benefits — exceed the available PIP coverage ($50,000), APIP and OBEL can be triggered to cover your excess expenses.  In addition, as a passenger you may be able to collect against the driver’s APIP and/or OBEL coverage, depending on how the policy is written.

Why is this important? According to the Star Gazette article, at least three of the teens suffered serious injuries and were helicoptered to Strong Memorial Hospital.  A helicopter ride alone generally costs around $2,500, and it is safe to assume the medical bills for these teens could approach $50,000 very quickly.

The passengers first need to determine whether the driver had APIP or OBEL coverage.  If so, it is possible the passengers could be compensated for additional economic loss under the driver’s policy, depending on how it was written.

Next, if the teens’ parents have APIP or OBEL coverage, the teens will likely be considered “Resident Relatives” and will meet the standard to be named an “eligible injured person” under their parents’ polices.  (Important tip — MAKE SURE YOU HAVE APIP AND OBEL NO FAULT COVERAGE.  At Ziff we are willing to review your insurance policy FOR FREE. Just stop in or email us a copy of your policy to info@zifflaw.com.)

3.   LIABILITY COVERAGE– In addition to no-fault coverage, New York State Insurance Law requires all drivers to carry at least $25,000/$50,000  liability coverage.  What does this mean?  It means every driver on the road in New York is required to provide at least $25,000 of coverage to any one injured person for non-economic loss(things like pain and suffering, serious disfigurement and loss of enjoyment of life) because of his negligence.  If more than one person is injured, the total maximum recovery is limited to $50,000 regardless of whether two people are hurt or whether 20 people are hurt.  If there are more than two people hurt, those people would have to split the $50,000 “pie”.

Of course, drivers are permitted to carry — and, in my opinion, SHOULD carry –  much higher liability coverage.  Why is this important?  In an accident such as this — where I am speculating at least eight people sustained serious injuries due to the driver’s negligence — it is possible the maximum amount of liability coverage available to compensate their non-economic losses  is only $50,000, in the event the driver only had a minimum policy.  In other words, unless the driver had enhanced liability coverage, the seriously injured passengers may only have a total pot of $50,000 from which to be compenstated for their non-economic losses.

4.  THE MOST IMPORTANT COVERAGE I HOPE THE PASSENGERS CARRIED– SUPPLEMENTAL UNDERINSURED MOTORIST’S (SUM) COVERAGE– Fortunately, like No Fault, residents may purchase Supplemental Underinsured Motorist Coverage (“SUM”) to avoid the situation described above.  SUM policies of $250,000/$500,000 or $5000,000/$1,000,000 or even higher can be added to almost any insurance policy, and generally cost less than $15.00 PER YEAR.  In my opinion, this is the best money you could spend to make sure you and your family are best protected in the event something really bad happens.

What does this mean?  In the event the driver who caused an accident does not have enough liability protection to fully compensate the people whom he injures, the injured person can trigger his own SUM policy once the full amount of the driver’s policy has been tendered.

Why is this important?  If the Steuben County teens have sustained serious injuries and the driver has a small liability policy, it is likely at least some of the injured teens are not going to be fully compensated for their non-economic losses.   If the teens’ parents have SUM policies, it is possible the teens could meet the “Resident Relative” standard (described above), and trigger their parents’ additional liability coverage.

HOWEVER, New York law is tough in this regard.  In a recent case, the New York Court of appeals held an insured’s SUM policy is NOT triggered unless the amount of the SUM policy is greater greater than the liability policy of the negligent driver, even if the injured party actually collects less than the SUM coverage because of multiple claimants.

Clearly much of this blog post is speculative, but it gets to the heart of some of the most pressing insurance questions.  Bottom line — parents need to protect their families!  Make sure you have adequate No Fault coverage — including APIP and OBEL — and spend the extra dollars each year to buy the biggest SUM policy possible.  Hopefully you will never need it, but if the day comes you will sure be glad you are protected.

I will be following the developing news about this crash and will provide updates as they become available.

Again, bring your insurance policy to Ziff Law at ANY TIME and we will review it for free.  It may be most worthwhile 5 minutes of your entire week!

Thanks for reading,

Christina Bruner Sonsire

Christina Bruner Sonsire, Esq.
NY & PA Injury & Malpractice Lawyer
Ziff Law Firm, LLP
303 William Street
Elmira, New York 14902-1338
csonsire@zifflaw.com
Office: 607.733.8866
Toll-Free: 800.ZIFFLAW (943.3529)
Web: zifflaw.com

Here’s the Elmira Star-Gazette article:

Nine teens packed into car are injured in crash

Nine Steuben County teens packed into a small sedan were injured — six of them seriously — in a one-car accident Wednesday morning in Hornellsville.

County Sheriff Joel Ordway said the car, a 2004 Chevrolet Cavalier, was speeding west on county Route 109 when the driver lost control on a sharp curve about a quarter-mile east of Lain Road and drove into a ditch.

The car continued about 135 feet, struck a concrete culvert, became airborne for 25 feet, overturned and landed on its side in a driveway, deputies said.

Ordway said the crash occurred about 2 miles from the underage drinking party, which was a birthday party. He said alcohol and the car’s speed were factors in the accident.

When emergency responders arrived at the scene, they found nine teens “on top of each other” inside the car, Ordway said.

It was not clear where in the car each of the teens was seated before the crash, though Ordway said they were likely “on top of one another” before the crash. Nobody was riding in the trunk, he said.

Ordway said he knows who was driving, but was not ready to release that information Wednesday afternoon because the investigation is still in progress.

“We’re just going to continue with the investigation,” Ordway said. “In the next couple days, we’ll have some charges, not only on the operator, but also on the source … who provided the alcohol prior to” the crash, he said.

Six of the nine teens in the car suffered serious injuries; one of them suffered a life-threatening head injury, Ordway said.

Emily S. Mayorga and Dylan Henry, both 18 and from Canisteo, and Taylear K. Maiello, 17, of Hornell were taken to Strong Memorial Hospital in Rochester by helicopter. All three were listed in guarded condition Wednesday, according to a hospital spokeswoman. Branden S. Mulhollen, 17, of Canisteo, also was taken to Strong for treatment. His medical status was not available Wednesday.

Bethany Jones, 17, and Carleenea L. President, 18, both of Hornell, were taken to Robert Packer Hospital in Sayre. Both were listed in stable condition Wednesday.

Ordway said the car was traveling between 71 and 78 mph at the time of the crash. The speed limit on the road is 55 mph, though the suggested speed on the downhill curve where the car left the road is lower, about 40 mph, he said.

County Road 109 was closed for several hours Wednesday.

The crash is reminiscent of another serious crash involving underage drinking in western Steuben County in 2007.

That September, three teens and a 21-year-old man were killed when a car hit a concrete abutment and went into Sugar Creek off of state Route 248 near Jasper. Police said all four had been drinking alcohol before that crash.

I am going keep this person’s identity confidential, but I want to share my response because I believe this advice will be useful to other readers.

The person who contacted me had been the victim of an assault. The assailant had pled guilty and awaits sentencing. The victim had a permanent scar from the assault and this damage was the source of the question to me.  As a NY personal injury attorney, could I advise:

1. How the assault victim should act and speak when before the judge.

2. What amount of compensation might be expected for a scar?

3. When would the compensation decision be made and is there a process to collect claims won in Small

Claims Court?

Here is the advice that I offered:

1. Go to court prepared and organized. Have an outline of how you are going to explain what happened to the judge. Take some good pictures of your scar and print them out as 8-inch by 10-inch images so you can give them to the judge.

Go to the Court Clerk’s office and get a copy of the Certificate of Conviction showing the guilty plea. If you have any witnesses to the assault, bring them with you and have them prepared to tell the judge how you were assaulted.

Stay calm and be polite to the judge (say “Yes, sir,” and “No, sir,” etc.).

2. Scars are tough to value and there is no single website where you can get a precise idea of value.

However, with that said, don’t sweat it because the decision about how much your scar is worth is up to the judge anyway. In order to convince the judge to give you the highest amount possible, you need to be prepared to tell the judge in a calm, honest way about the many different ways in which the scar bothers you both emotionally and physically.

Tell your story with as much heart as you can, but be honest and be careful to not come off as a total whiner.

3. In Small Claims Court, the judge makes the decision. Usually he or she makes it that day, but he or she can “reserve decision” to secure more time think about the ruling.

There is a process to collect, and you can read about it in the informational booklet available at Small Claims Court.

I hope this advice helps the reader who contacted me, as well as anyone else anticipating a day in Small Claims Court.

I enjoy working on the NY Personal Injury Law Blog and helping readers make sense of some very complicated and scary legal issues. Please feel free to contact me with questions – I’m happy to help and explain what you need to know.

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