This article was previously published on Adam Gee’s newest blog, NY Biker Law Blog.  The original article can be found here.  We are re-printing the article here in the hopes that  reading about these two incidents will keep people safer on the highways.

Weekends are meant to be the time we leave work worries and cares behind and get a chance to indulge in our interests. For many people in the Twin Tiers, during the summer this means getting out on our motorcycles.

Along with the thrill and exhilaration of riding a motorcycle, however, comes some risk. This was recently evidenced by an weekend car/motorcycle accident in Wysox Township:

A copy of the WETM story is pasted below, as reported by Jeff Stone

“Woman Injured in Motorcycle Crash”

Wysox Township, Pa. – A Warren Center woman was seriously injured in a motorcycle crash Saturday in Bradford County. Pennsylvania State Police say 25-year old Stacy Wolfe was traveling on Route 6 in Wysox Township when a car coming in the opposite direction made a left-hand turn and crashed into Wolfe’s motorcycle.

Wolfe was thrown from the motorcycle and received severe injuries. Police say the driver of the car was 65-year old Evelyn Boyles of Wysox.

Although the precise circumstances of the accident and any investigation has not yet been revealed, I look on this as another chance to advocate caution. I recently blogged about a theory of “motion camouflage” that suggests motorcyclists are not always visible to car drivers (“NY Motorcycle Accident Lawyer Explains Why Drivers Don’t See Bikers”). All I can say is be vigilant on the road and let’s hope for a full and speedy recovery for Stacy Wolfe.

In a separate incident, an Elmira, NY man suffered a broken leg when he was rear ended – yes REAR ENDED! on Interstate 86 near the Waverly, NY exit.  No media reported on this case, but I became aware of it when he came to see me.  It seems he was riding home from work at shortly after 11:00 PM  wearing a jacket with armor and reflective patches, gloves, boots and a full face shield helmet.  He also had one of those reflective bands around his helmet.  He was riding a sport cruiser with lots of rear lights, and even had two reflectors attached to his rear seat in addition to the tail lights.  Somehow, a guy manages to miss all that and rear ends him, dumping my client onto the middle of I-86.  He somehow avoided getting run over by traffic, but is looking at a long period of recovery.

Our preliminary investigation reveals the driver that rear ended our client was playing with his radio when he smashed in to our client

Thanks for reading and stay safe out there.

Adam

______________________________
Adam M. Gee, Esq.
NY and PA Motorcycle 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

My book, “Would You Ride Your Motorcycle Naked?” is available FREE to New York and Pennsylvania bikers; follow the link to order a copy.

For more motorcycle articles and news, visit Adam’s NY Biker Law Blog here.

When drowning is depicted in movies or on TV, it’s always dramatic. The victim cries out for help, splashes, waves his or her arms around. That’s what experts call “aquatic distress.”

The reality of actual drowning is very different. Drowning people aren’t just stifled by the water – but by the body’s physiological response to the crisis of drowning. The struggle to stay alive, to conserve oxygen and keep the head above water, traps drowning victims in a body that may not be able to spare the energy for calling out or splashing. Close to the final stages, drowning is often nearly silent.

I came across this terrifying information in  a very well-written and chilling blog post, “Drowning Doesn’t Look Like Drowning,” on the gCaptain site for maritime professionals. The post starts off with a short scenario: A boat captain saving the life of a little girl silently drowning only a few feet from her laughing, splashing parents.

Just recently, here in the Twin Tiers we had a number of drowning deaths. I wrote about them in the post, “NY Injury Lawyer Warns of Dangers of River Swimming.” I started the post to write about Elmira’s Fire Chief’s warnings to people considering swimming in the Chemung River – by the time I was done writing it, I had come across two stories of river drownings in New York State, “Girl Drowns in Susquehanna River,” and “Name of Northern N.Y. Drowning Victim Released” One victim was a 16-year-old girl, the other a 74-year-old man.

The involuntary reactions that cause drowning to be a quiet struggle are founded in the body’s uncontrollable instinct to survive. Here’s how Dr. Francesco Pia explained the phenomenon of the Instinctive Drowning Response in Mario Vittone’s post:

1. Except in rare circumstances, drowning people are physiologically unable to call out for help. The respiratory system was designed for breathing. Speech is the secondary or overlaid function. Breathing must be fulfilled, before speech occurs.

2. Drowning people’s mouths alternately sink below and reappear above the surface of the water. The mouths of drowning people are not above the surface of the water long enough for them to exhale, inhale, and call out for help. When the drowning people’s mouths are above the surface, they exhale and inhale quickly as their mouths start to sink below the surface of the water.

3. Drowning people cannot wave for help. Nature instinctively forces them to extend their arms laterally and press down on the water’s surface. Pressing down on the surface of the water permits drowning people to leverage their bodies so they can lift their mouths out of the water to breathe.

4. Throughout the Instinctive Drowning Response, drowning people cannot voluntarily control their arm movements. Physiologically, drowning people who are struggling on the surface of the water cannot stop drowning and perform voluntary movements such as waving for help, moving toward a rescuer, or reaching out for a piece of rescue equipment.

5. From beginning to end of the Instinctive Drowning Response people’s bodies remain upright in the water, with no evidence of a supporting kick. Unless rescued by a trained lifeguard, these drowning people can only struggle on the surface of the water from 20 to 60 seconds before submersion occurs.

(Source: Coast Guard’s On Scene Magazine: Fall 2006)

The moral of this post is don’t expect a drowning to look like it does in the movies. Be aware of swimmers who go quiet. Check and ask if they are OK – if they can answer they probably are. But pay particular attention around children. Play time in the water is loud and full of splashing and shouting. A real drowning is quiet.  If your child should go quiet while swimming, find out why and find out now!

Thanks for reading and stay safe this summer,

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

My book, “Would You Ride Your Motorcycle Naked?” It is available FREE to New York and Pennsylvania bikers; follow the link to order your copy.

Visit the NY Biker Law Blog for legal information and other fun stuff for bikers!

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

I started my legal career at the Chemung County District Attorney’s Office where I prosecuted crimes against women and children, (and just happened meet my wonderful hubby).

Today I received an inquiry from WETM’s Law Talk regarding youthful offender adjudication.  The inquiry read:

I am curious about my Youth Offender status.  I made a stupid mistake and got arrested..small misdemeanor charge, nothing serious…anyways I spent a couple of hours in jail and went to court the next morning.  Since it was my first offense I was put as a Youth Offender and they said it would not be put on my record or “replacing an actual conviction” if I stay out of trouble of course for certain period of time.  Now I called the courthouse and was told my record is “clean” and will remain clean until for that period of time until they throw it out when the time comes.  I also called the Sheriff’s office where I was arrested and they said my arrest record along with the court record is sealed and will be thrown out when I finish my unwatched probation.

I had a background check done on me and nothing shows up…and I was also told that even though I was fingerprinted they will not send my fingerprints to the FBI because again my record is still considered clean.  I understand I can still have this put on my record if I mess up.

I just want verify if this is the case..I don’t want it sent up to the FBI and I want to know what’s your say on this.  Is this basically a 2nd chance for me not to mess up?  How certain is it that they will throw it out if I complete my probation?  Is there a certain law that applies with Youth Offenders?

This gave me a good chance to wade through the cobwebs in my noggin and think about Criminal Law for a few minutes.  I responded:

You are correct.  Unless you have something unrelated to this on your record, your record is clean.

New York State Law essentially allows young people under 18 who are charged with a misdemeanor a free pass the first time they get into trouble.  In other words, the misdemeanor conviction for a person age 18 or younger is replaced with “Youthful Offender Status” and the person’s record remains clear.

The law makes the replacement of a misdemeanor conviction with YO mandatory (called “mandatory YO”) for all people under 18 if that person has not been convicted (i.e. has not received YO in the past), though it may not apply to some misdemeanor sex crimes.   I am not sure.  A judge generally has discretion to grant YO (called “discretionary YO”) to any person under 18 regardless of the person’s past criminal history, though most judges do so very rarely.

My guess is you plead guilty to the misdemeanor and were granted mandatory YO and a conditional discharge or probation, meaning if you stay out of trouble for one year from the time you plead guilty the court will lose jurisdiction to resentence you.  If you get into trouble, the judge can bring you back into court and impose a greater sentence (jail, probation, etc), but, with respect to this charge, you should always be mandatory YO.

The bottom line is if what you say is true, your record is squeaky clean and you should not have any problems.  Keep in mind most background checks ask if you have ever been “convicted” of a crime.  The answer for you is no – YO is NOT a conviction.  But, be careful of the wording in the background check.  It may ask if you have ever been “arrested”, in which case you would have to say yes. Read the rest…

During hot summer days like those we’ve been having recently – when the temperature reaches into the 90s and even above – the Chemung River can look like a pretty inviting place to take a swim.

You can see it from so many spots in the Twin Tiers area. It starts in Painted Post, where Trails.com says the Iroquois Indians held the river sacred and marked its beginning – the convergence of the Tioga and Cohocton rivers – with an actual “painted post.”

The Chemung idles through Corning, and passes right through downtown Elmira, practically splitting the city in half. Then it’s on toward the PA border,  past Wilawana, Waverly, Athens and Sayre. South of Athens and Sayre, the Chemung melds into the Susquehanna River, which travels on to Chesapeake Bay and the Atlantic.

The Chemung River is an integral part of the scenery and life of Twin Tiers residents. You can see it from so many of our cities and villages, and its length is peppered with boat launch sites and access points.  The Chemung Basin River Trail Partnership is one of the organizations devoted to keeping residents aware of the river and its beauty.

Unfortunately, recent regional accidents point out that everyone must also be aware of the safety concerns of swimming in the river. In a tragic accident on Tuesday, a 16-year-old girl drowned in the Susquehanna River, pulled under by a strong current. (The story, “Girl Drowns in Susquehanna River,” was covered by the Star-Gazette). The Star-Gazette also reported on the river drowning  death of a 74-year-old man in Northern New York on Monday.

These tragedies illuminate the dangers fire and police authorities hope the public is aware of. WETM-TV covered the story, “Dangers of Swimming in the Chemung River”, pasted below, which included several warnings from the Elmira Fire Chief, Patrick Bermingham. He cautioned that:

• River currents can be deceptively slow on the surface – and stronger beneath.
• Hidden debris can hurt or snag swimmers from the river bottom.
• Town pools offer lifeguards and better supervision for children.

In Corning, a safe “cooling center” has been opened by the American Red Cross. Anyone can stop in the center to take advantage of the lower temperatures inside and get re-hydrated with provided water. WETM also reported on this development, in the story “Cooling Center Open in Corning” It’s the first time such a center has opened in Steuben County – proof positive that we are having one hot summer.

The Chemung River is beautiful - look at it, fish it, take your boat or canoe out on it. But if you choose to swim in it,  be extra careful.

Thanks for reading,

Adam

______________________________

Adam M. Gee, Esq.

NY and PA Personal Injury, Malpractice and Motorcycle 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

My book, “Would You Ride Your Motorcycle Naked?” It is available FREE to New York or Pennsylvania accident victims; follow the link to order a copy.

“Dangers of Swimming in the Chemung River”

(WETM Nick Natario,  7/06)

ELMIRA – With the temperature surging into the 90′s this week, neighbors are searching for ways to stay cool.

Some of them are turning to the Chemung River.

That’s something the Elmira fire chief urges you not to do.

A number of people were swimming in the water Tuesday at the Grove Street Boat Launch in Elmira.

Elmira Fire Chief Patrick Bermingham says while the current looks slow on top, it’s much stronger underneath.

He says that debris can also be floating down the river which can tangle you.

But neighbors who decide to swim here anyways say they take extra precautions.

“Swim with partners, always be around people and don’t go out too far,” said Samantha Ray.

“We swim with a partner and always make sure there’s somebody with us,” said Valerie Bellows.

“I believe that parents, if they are in there need to be on guard, if you will for the kids who can get into trouble in an instant,” said Bermingham.

Bermingham says there are plenty of other safe alternatives to swim at: such as a local school or county pool instead of the river.

A visitor to the Finger Lakes region was killed in a tragic jet-ski accident recently. This is sad news to read about after a beautiful holiday weekend.

Can you imagine a friend or family member going on a fun trip to a tourist destination – and suffering a fatal accident while they were enjoying themselves? It would be devastating.

WETM-TV reported on the accident. Here’s a link to the story “Lake Accident Fatal,” also pasted in its entirety below.

As a personal injury attorney with more than 20 years of experience – and particular experience handling boating accident cases on a number of the Finger Lakes – I wanted to take a moment and emphasize why it’s so easy to be seriously or fatally injured in a simple accident on the water. The Ziff Law Firm has devoted a practice emphasis in boating accident cases.

Jet skis look like great fun, and don’t they seem safer than riding a bike or motorcycle? After all, you have the whole lake to spread out and water to cushion your fall. WRONG. It’s a fallacy to think that way – water can have an unforgiving impact.

Water is not a soft landing at high speed – hitting it can be like hitting concrete. And even held afloat by a life jacket, an unconscious person can be knocked face down and deprived of oxygen.

Not only do you have to worry about impact with the water but you also have to worry about impact with other objects like other jet skis, boats, docks, debris in the water, etc.  Please keep your eyes peeled and use the utmost caution when using a jet ski. Warn teens and kids, who frequently get caught up in the exhilaration of speed, of the dangers too.

Thanks for reading,

Jim
_______________________________________
James B. Reed, Esq.
NY Boating Accident Lawyer
Ziff Law Firm, LLP
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.

Lake Accident Fatal

(Sofia Ojeda, 7/05)

Tyrone, N.Y.- A man is dead Monday after 2 jet skis collided on Waneta Lake over the weekend.
Schuyler County Sheriff’s deputies say 43-year-old Lee Brandt of Wisconsin was on a jet ski with friends Sunday.
He was operating it along the East shore towards the North end of the lake.
Police say Brandt was riding his jet ski closely to another one.
That’s when he turned in front of the second jet ski and collided.
Brandt was struck suffering fatal injuries.
No other injuries were reported.

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• Injury Attroney Offers a Jet Skier Safety Reminder (zifflaw.com)
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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 Read the rest…

I was recently contacted by e-mail for some legal advice by a reader of the NY Injury Law Blog. This person had gone over some of my posts, particularly “The “People’s Court”– NY Small Claims Court.”

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.