Short answer: maybe, maybe not. The bottom line is that it depends on whether you have suffered what the law defines as a “serious injury”. If you have suffered a “serious injury” you may be able to sue the other driver. If you did not, you may NOT sue the other driver. Keep reading for an explanation for how this all works.
First, you need a little bit of a history lesson– please bear with me as this will not be too painful– promise!
Long ago (30 years plus) before NY adopted its No-Fault Insurance law, if you were hurt in an auto accident, you could sue the other driver regardless of the seriousness of your injury. Little injury, big injury? Didn’t matter– you could sue the other driver who negligently caused your injuries. That was the good news. The bad news was that you had to sue the other driver because your own insurance company was not required to pay your medical bills or your lost wages. In other words, the only source of recovery was the other driver’s insurance because your insurance did not cover these expenses. The bad thing about this old system was that injured people were literally penniless and starving because they had no money coming in to support their family while their lawsuit slowly worked its way through the court system.
With the adoption of the New York no-fault law, the rules totally changed. Under no-fault, YOUR insurance company is required to cover a minimum of $50,000 of your medical bills and lost wages. This is great for the injured person because it means that their medical bills and lost wages are promptly paid so that they can keep their head above water financially. The downside to the adoption of no-fault law is that you are now only able to sue the other driver if you have suffered what the law defines as a “serious injury”. In other words, if your injury is not “serious” enough, you can NOT sue the other driver no matter how careless they were in causing the accident. For example, if you got rear-ended at high speed by a drunk driver who had been convicted of drunk driving 17 times before, you can NOT sue that drunk unless you have suffered a “serious injury”.
So, WHAT IS A “SERIOUS INJURY”. Here is the definition from Section 51o2(d) of the NY Insurance law:
“Serious injury” means a personal injury which results in
- significant disfigurement;
- a fracture;
- loss of a fetus;
- permanent loss of use of a body organ, member, function or system;
- permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system;
- or a 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 not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
In a future post, I will explore how the NY courts have interpreted this “serious injury” definition. Some of the interpretations may surprise you!
But the bottom line is that it can be very difficult to tell whether you have suffered a “serious injury” so do NOT let any insurance adjuster tell you that you have not. In fact, if an adjuster tells you that, the best response of all is to ask him where he/she went to law school?
James B. Reed, Esq.
Personal Injury & Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William St., Elmira, NY 14902
Tel. (607) 733-8866 Fax. (607) 732-6062
Toll Free 1-800-943-3529