Q
What Should I NOT Do If I Was in a Car Accident?




A
  • DO NOT ADMIT RESPONSIBILITY FOR THE ACCIDENT EITHER WITH THE POLICE AT THE SCENE OR THE OTHERS INVOLVED. If there is litigation, things you say may be used against you. Although you may think the accident was your fault, you may find out later that the other driver was actually to blame, or you were both equally at fault. This is not to say that you shouldn’t be truthful with the police about the FACTS of your accident– you just should not offer your OPINION that the accident was your fault.
  • DO NOT SIGN ANY DOCUMENTS NOR AGREE TO PAY ANY DAMAGES. You should leave the payment of any damages to your insurance company. That’s why you pay insurance premiums and that’s why you have insurance coverage. Your insurance company will determine what expenses are appropriate to pay.
  • DO NOT EVER DOWNPLAY YOUR INJURIES OR SAY YOU’RE “O.K.” AT THE SCENE. Soft tissue and disc injuries often take hours or days to begin to really hurt. People are often very shaken up and disoriented after an accident so very often they don’t realize they’ve been hurt until later when they start to calm down from the initial excitement of the crash. If you are asked if you were injured, always say, ” I am not sure about my injuries– I plan to see a doctor to look me over.” If you have any pain at all, and the officer offers an ambulance, you should consider letting him or her call one for you.
  • NEVER GIVE A STATEMENT TO THE OTHER DRIVER’S INSURANCE COMPANY. OFFER ONLY THE VERY BASICS. The insurance company is sure to be in contact with you soon after the accident regarding the property damage to your vehicle. That does not give them the right to ask you detailed questions about your injuries. It is best not to speak to them at all regarding your injuries until you seek the advice of an attorney who concentrates on personal injury.
  • DO NOT TAKE MONEY FOR YOUR INJURIES OR SETTLE UNTIL YOU HAVE FINISHED TREATMENT. Insurance companies may try to offer you money for your injuries right away. The full extent of your injuries may not be apparent for weeks or months. Once you settle for your injuries, you can’t get any more money, no matter what they say.
  • DO NOT HIRE A “FAMILY ATTORNEY” FOR AN INJURY CASE. Many people have a “family attorney” who assists the family with wills, real estate closings, or domestic matters; however, this is usually not the best attorney to handle your personal injury case. It is best to seek an attorney who concentrates exclusively on personal injury cases. If you don’t know an experienced personal injury lawyer, you may call us at 1–800-ZIFFLAW or E-mail us at info@zifflaw.com and we will be happy to speak with you right away.

No-fault insurance in N.Y. 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. However, no-fault does not apply to property damage claims which are usually paid for by the insurance carrier for the vehicle that caused the collision or by your carrier if you carried collision coverage. Also, no-fault does NOT apply to motorcycles so please refer to the motorcycle FAQ’s to see how motorcyclists are treated different.

No-Fault Benefits include:

  • Hospital and Medical Expenses.
  • Lost wages equaling 80% up to $1000 per month for a period not exceeding three years (Note: Some policies provide more than the $1,000 per month minimum required by N.Y. law).
  • All N.Y. NF policies are required to provide TOTAL coverage of $50,000 for both medical costs and lost wages.

No-Fault Benefits are NOT payable when:
No-Fault benefits are not available to anyone who was driving while intoxicated or under the influence of drugs if the NF carrier can prove that the accident was caused by the their insured’s intoxication or drug use. NF Benefits are also not available if the person intentionally caused his/her own injury, or if the accident occurred while the person was committing a felony.

Making a Claim for No-Fault Benefits
To claim No-Fault benefits, you must file a written application with the appropriate insurance company within 30 days of the accident. After the accident, immediately request from your insurance company that they send you the New York State No-Fault Application. You will be given a claim number and the name of an insurance company claim representative to whom you or the medical provider can send the bills. You may also contact this person if you feel you’re not receiving the appropriate benefits.

What Happens If the NF Carrier Fails to Pay the Bills?
If you do not receive your benefits, there is an arbitration procedure which can require the insurance company to pay them. You should consult with an attorney to make sure that your rights are protected and that you receive the benefits you are entitled to. An arbitrator’s award can also include payment of interest as well as attorney’s fees.

In NY, if you have suffered what the law defines as a “serious injury”, you may bring a claim for your pain and suffering. Under NY law, a “serious injury” is defined as any of the following injuries:

  • Fracture of a bone
  • Significant facial disfigurement with visible scarring
  • Loss of a limb
  • Permanent loss or use of a body organ, member or system
  • Permanent consequential limitation in use of a body organ or member
  • Significant limitation in use of a body function or system
  • A medically determined impairment that prevents the victim from conducting their normal daily activities for at least 90 days during the 180 days immediately following the accident.
  • Loss of a fetus
  • Death

These injuries must be medically proven. Your complaints about your injuries alone are not sufficient; rather, expert medical testimony and medical documentation are required to pursue a lawsuit. You should consult with an experienced, personal injury attorney as to whether or not your injuries meet this “serious injury” requirement.

Maybe. Maybe not. The point is that you should NEVER, EVER take your legal advice from the other driver’s insurance company. Remember, it’s their JOB to pay you NOTHING or as LITTLE as possible.

Many times, the insurance adjuster will say things like “sorry but you don’t have a serious injury as required under N.Y. law but because we feel bad about what happened to you, we are willing to pay you $500″. This is wrong, improper and even illegal for this adjuster to do this. First, he’s not a lawyer and surely not your lawyer so it’s absolutely improper for him to be giving legal advice to you. Second, most often it is way too early to tell whether you will have a serious injury or not. Many people don’t know the full extent of their injuries for months after a car crash. Third, do you REALLY believe they are paying you $500 because they feel bad? No way. They are paying you $500 because they want your signature on a Release. A Release is a legally binding document that says you are giving up ALL rights (both past and future) in exchange for the money. Once you sign off, you are done forever even if you need surgery two months later or start to have problems that disable you from work forever.

Bottom line– you need YOUR OWN attorney to give you proper advice about whether you should settle your case or not. If you are in doubt about whether you should settle your case or not, feel free to E-mail us at info@ziffflaw.com or call us at 800-ZIFFLAW and we will tell you whether what you are being offered is fair or not. Don’t worry, if you call or E-mail us you are not obligated to hire us but we will help you figure out whether the insurance company is trying to take advantage of you or not.

Almost always the answer is yes. The law says that you have to be able to stop safely if a car stops in front of you. As a licensed driver in N.Y. or Pennsylvania, you are obligated to have your car under control at all times. That means if it’s snowy, you should reduce your speed for the conditions.

Many times people do not feel that they are seriously injured in an accident until days or weeks later. Many times people just feel that they were “shaken up” or that “I’ll get better in a few days”. Unfortunately, insurance companies and their defense lawyers try to turn this against these people who didn’t treat right after an accident by trying to claim that the people weren’t really hurt in the accident. Because of this tactic, our best advice to people involved in accidents is to PROMPTLY get checked out either at the hospital or Dr. It is important that you report ALL complaints even if at the time you just feel like you are “just a little stiff or sore”. With that said, if you did NOT promptly seek medical attention, it does not necessarily mean that you don’t have a good case. It just means you should sit down with an experienced personal injury lawyer who is familiar with the best way to deal with this situation.

Yes, it is in YOUR best interest to hire an attorney. They will be YOUR advocate in dealing with the insurance companies to cover the damage to your automobile and to cover your medical expenses. A national study showed that injured persons who were represented by an attorney received 300% MORE than persons who settled their claims without a lawyer. So even after you deduct the usual attorney’s fee of 1/3rd, people represented by attorneys netted twice as much as those who accepted the insurance company propaganda that “you don’t need an attorney… don’t worry we will treat you fairly”. Remember, the insurance companies have attorneys who represent them so you better have an attorney to represent YOU!

Every case is different. Some cases can be settled very promptly while others may take years to resolve. A number of factors influence how long a case will take: the nature and severity of your injury (the more serious your injury the longer it will take your condition to stabilize and the longer we will have to wait to try to start settling your case); the amount of time you are unable to work (like your injury, the longer you are out of work, the longer it is before we can get serious with the other insurance company about trying to settle your case); and, the insurance carrier for the other driver (some carriers settle quickly while others never settle until you are on the courthouse steps). The important thing to remember is that you do not want to hurry or rush your case as you only get one chance to pursue your case so you better make sure it is done correctly.

If the accident occurred in N.Y. and the other driver does not carry the insurance required by N.Y. law there is a special type of claim known as an MVAIC claim that can be brought to cover your expenses. There are very special time requirements and rules that pertain to an MVAIC claim so it is very important that you immediately consult with an experienced personal injury attorney if you have any reason to believe that either the other vehicle or the vehicle in which you are riding is not insured. In addition to an MVAIC claim, you may also be able to bring a claim under your OWN insurance policy. You may have coverage under either the Uninsured or Underinsured Motorists endorsement to your policy. Once again, there are special rules and requirements to pursuing these claims so we strongly suggest that you promptly consult with your attorney so they can decide how to handle your claim to make sure you are protected.

Yes, the no-fault insurance carrier should pay your medical bills and lost wages as discussed above.

It depends on whether or not your insurance policy provides rental car coverage for the time your car is being repaired. Check your insurance policy; many will have a clause that allows you to rent a car. Be sure to track the expense involved as this is considered a cost that you suffered.

Every case is different and unfortunately there are no hard, fast rules for determining the value of your case. Many factors influence the value of your case: how clear it is that the other driver was at fault in causing the accident, the severity of your initial injuries, how long you were hospitalized, how long you were out of work, the permanency of any injuries, the amount of your medical bills, etc. An experienced personal injury attorney takes all these factors into account in determining the reasonable value of your case.

The answer varies from case to case, and from individual to individual. You should know that going to trial can take years, but many times in return the judgment in court is larger than in a settlement. The client often needs to weigh the certainty of a settlement against the uncertainty of whether a jury will come in with a verdict that is higher or lower than the settlement amount. An experienced attorney can help the client make this difficult decision by discussing with the client his or her past experience in handling similar cases.

No. Tell the insurance company that you’ll get back to them. In the meantime, contact an attorney immediately. Often times an insurance company will offer a minimal amount of money in return for your signature stating that you are giving up your rights to sue them. Never take an insurance check without first consulting an attorney. You need to make an informed decision about what is in your best interest and you can’t do so until you have gotten advice from your own attorney. Remember, it’s the insurance adjuster’s job to pay you as little as possible for your claim so keep that in mind when they are sweet-talking you about how they are just trying to help you out.

Normally, in cases such as these, you don’t pay the attorney any money until, and if, you win your case. If you do win, the attorneys fee is 33% of the settlement after expenses are deducted off the top.

The personal injury attorneys at the Ziff Law Firm (Carl Hayden, Jim Reed and Adam Gee) will consult with you for free to see if you need to have them represent you or not. Just call us at 1–800-ZIFFLAW or E-mail us at info@zifflaw.com and we will be happy to speak with you right away.

Carl T. Hayden, our senior partner, is a FACTL, a Fellow of the American College of Trial Lawyers. The College is not a bar association. You cannot join; you must be invited. Invitees are nominated by other trial lawyers and candidates are subject to intense scrutiny that focuses on the actual cases they have tried, their skill as a trial advocate and their ethical standards. Only one percent (1%) of lawyers are offered admission to the American College of Trial Lawyers. In the Elmira-Corning area, Carl is the only plaintiff’s lawyer admitted to the College.

Jim Reed, our Managing Partner, was invited to membership in the Million Dollar Advocates Forum. As it says on the Forum website: “Forum membership is limited to trial lawyers who have demonstrated exceptional skill, experience and excellence in advocacy by achieving a trial verdict, award or settlement in the amount of One Million Dollars or more.”

No, generally you do not have to pay taxes on a settlement unless a portion of your settlement was specifically designated as compensation for lost wages. The other exceptions to this general rule are set forth below. Most good personal injury attorneys are aware of these exceptions and will make sure that your settlement is properly structured so as to avoid or minimize any taxation.

In New York and Pennsylvania, compensation for your injuries and pain and suffering is tax free. You will receive notification from the insurance company that paid you compensation with documentation about your settlement. You need to give that to your accountant. However, there are no taxes to be paid on your settlement.

Once you receive the settlement proceeds, the taxability of that money is just like any other money you invest or put in a savings account. When you invest those monies into taxable investments, then any profit or gain you achieve is obviously taxable.

In a death case, an award for pain and suffering is generally taxable to the estate. In some instances there are legal ways to allocate the monies to the wrongful death cause of action (which is not taxable to the estate) rather than the pain and suffering cause of action (which is taxable to the estate).

It’s bad enough being injured, and then having to bring a lawsuit to obtain proper compensation and payments for your disabilities. Can you imagine the impact it would have if you then had to pay income taxes on those monies? Luckily, the government realized that injury settlements are not earned income. Rather, they compensate an injured victim for the pain, suffering, and disabilities they suffered at the hands of another’s carelessness. Accordingly, they generally (and thankfully!) are NOT taxable.

That is one of the toughest questions of all because there are so many factors that influence the value of a case including the following:

  • How clear is the proof that the other driver is at fault in causing the accident? For example, a case of aggravated carelessness like a drunk driver may be worth more than a difficult intersection case where both drivers claim they were in the right.
  • How serious are your injuries. Obviously, the more serious your injuries the more your case may be worth.
  • How much time did you miss from work? Generally, the longer you are unable to work, the more your case is worth. Likewise, the more money you make per week the more likely your no-fault insurance covered all of your economic losses and accordingly the more your case is worth.
  • How much insurance does the other driver have? One of the most frustrating problems we encounter is when we represent a client who has a very substantial case but the other driver only has the state minimum liability insurance (just $15,000 in Pennsylvania and $25,000 in NY). Inevitably, not only do these people have the minimum insurance but they also have no personal assets to pay any large verdict we may obtain against the bad guy. It’s the old adage “You can’t get blood from a stone”. Because of this, a case with more insurance is worth more than a case with insufficient insurance.

Because of the wide range of possible case values, it is imperative that you talk to an experienced personal injury attorney as soon as possible so you can get some guidance as to what factors are very positive for your case and what factors might present obstacles to your obtaining a maximum recovery. It is amazing how often our being consulted early in a case permits us to do a prompt investigation that defuses many of these obstacles…

No. In both New York and Pennsylvania, there are laws that permit you to recover even if a judge or jury conclude that you are partially at fault in causing an accident. These laws are called “comparative negligence” laws because they compare the relative negligence of each of the parties involved in an accident. While this does permit you to recover even if you were partially at fault, any recovery may be reduced by the same percentage you were found to be at fault. For instance, if the other driver was found to be 70% at fault and you were found to be 30% at fault and the jury returned a total verdict in your favor in the amount of $100,000, that verdict would be reduced by 30% (the amount of your fault) and you would receive $70,000. Please appreciate that this is an over-simplification of a tricky area of the law but it does provide the general idea of how comparative negligence works.

Please see our webpage on Accidents for more information.


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