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
- death;
- dismemberment;
- 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? 
Thanks, Jim
_________________________________________
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
mailto:jreed@zifflaw.com http://www.zifflaw.com
so what about the pain and suffering that one endures with all of the pain that one goes thru with pain and injury? Does that not go into account?
or.. the Chronic pain that one will face from the injury.. re: whiplash.. what about that? Isn’t that taken into consideration?
Deb – Pain in and of itself is not really taken into consideration when detrming if you have suffered a “serious injury” as defined by the state of NY. Only people have suffered such a “serious injury” are permitted to sue for their injuries. Once the “serious injury” threshold is reached, pain is certainly considered when detemining the total amount of damages that should be awarded. Unfortunately, the NY courts have determined that you must have objective indications of injury to support a finding of “serious injury”. Since pain alone is not objective, it cannot be the sole basis for a finding of serious injury.
As you can see, a dterminaion of whether someone has sustained a serious injury is a complex legal and medical determination. That’s why its makes us so angry when these insurance adjusters make false claims to the innocent victims of a car accident. Doctors, lawyers and judges struggle with these detrminations, so where does some insurance adjuster with six months on the job get off trying to get people to give up important rights?
Thanks for reading,
Adam M. Gee, Esq.
Personal Injury and Malpractice Attorney
Ziff, Weiermiller, Hayden & Mustico, LLP
303 William Street
Elmira, NY 14901
Phone: (607)733-8866
Fax: (607)732-6062
Email: agee@zifflaw.com
http://www.zifflaw.com
Jim,
Thanks for your response. Unfortunately it is too late for me and my wife. Approx. 5 plus yrs. ago we were hit by Renalto Sorge-the result of which was over 20 surgeries-so far to myself. I will never be right-physically. My lawyer refusued to sue. We took the insurance settlementment to avoid being left high and dry as I have heard can happen.
My lawyer refused to sue-according to your critera, we have every right to sue.
In any case, there is no amount of money that can compensate one for the catastrophic losses that result from an accident.
My uncle had an accident a little over 2 years ago. Since that time he has died. The other person involved in the accident is trying to sue my uncle’s estate. What is the NYS law governing this type of case? Thanks and regards
Eileen:
Properly calculating the applicable time limits for different types of cases can be complicated but the general rule of thumb is as follows:
Most Negligence Actions– 3 years from the date of the alleged negligence.
Wrongful Death Actions– 2 years from the date of the death.
Medical Malpractice Actions– 2.5 years from the date of the alleged malpractice.
Like I said before, this is a very over simplified summary of what can be a complex legal determination. Accordingly, my best advice is to ALWAYS consult with an experienced injury attorney to determine the exact time limits that apply to your case.
Thanks, Jim
_________________________________________
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
mailto:jreed@zifflaw.com http://www.zifflaw.com
Visit the New York Injury Law Blog at: http://www.NYInjuryLawBlog.com
I was rearened in 7/2006 due to a table falling off the back of a pickup truck and landing in front of me, the party behind did not see that I was slowing down on the highway and rearended me, giving me neck pain to this day, I can crack it, it feels like a bulge in the back of my neck and I have difficulty sleeping. Do I have a case?
Sorry but from the little bit of information you have provided here, it’s tough for me to say that you qualify as having suffered a “serious injury” as is required to bring a lawsuit in N.Y.. I strongly urge you to search this blog for the term “serious injury” for all the posts I have done on this topic. If after reading those posts, you think you have the basis for a qualifying serious injury, I am more than happy to talk with you.
Good luck, Jim Reed
jreed@zifflaw.com
800-ZIFFLAW (943-3529)
My wife was 14 months ago was at a red light and was rearended,her van was totaled,she is having neck surgery in two weeks.Our lawyer said we can on sue for the supplimentary under insured part of the party who hit her. He also said a civil suit would be some what difficult because the guilty party could claim bankruptcy,etc…. Is the supplementary underinsured the only thing my wife can sue for? Would it be that difficult to have a civil suit?
Sorry to hear about your wife. Although I am always willing to answer questions, I am afraid that with the little bit of information you have posted, I couldn’t possibly give you a good answer to your question. In your case, as is true in virtually every case, you can’t give a solid legal answer without knowing ALL the facts. If you want to email me directly at jreed@zifflaw.com with more details, I will be happy to see if I can give you a good answer.
Jim Reed
NY & PA Car Accident Lawyer