Some thoughts on injuries in car accidents. Insurance companies try to sell the idea that if there is not a lot of damage to your car, you can’t be seriously hurt. This has been disproved by numerous studies, but let me tell you about a demonstration that some attorneys have used at trial to demonstrate injury to the jury. A low speed car accident can push your body and brain back and forth, even without a lot of property damage.
A good lawyer trick: A trial attorney may hold up and drop a carton of eggs to the ground. The eggs break, yet the carton remains visibly undamaged. Like the eggs, the human body can be hurt, yet a car, like the egg carton, can show very little outside damage.
Insurance companies seem to have the attitude that everyone exaggerates or fakes pain. In thousands of negotiations with insurance companies, I’ve heard them “poo-poo” clients’ complaints of pain. Pain alone won’t carry the day, either for settlement, or in court.
Learn why by reading on.
What do we mean by “No-Fault”?
Put simply, No-Fault refers to having your accident-related medical bills paid, up to $50,000, regardless of whose fault the accident is.
Two different things happen after a car accident. First: No-Fault insurance pays your medical bills and lost wages, except in certain instances involving buses, motorcycles and heavy trucks. No-Fault also protects pedestrians and bicycle riders. Second: This should not be confused with issues of liability in an accident, which are very much about who is at fault, and the focus of the second thing that may happen: a lawsuit. Let’s learn about No-Fault insurance and what it means for your he satisfies the requirements of the No-Fault law. The No-Fault law precludes recovery for pain and suffering, between “covered persons,” unless the accident victim proves a “serious injury.” This is one of the most litigated sections of New York law, with many, many reported case decisions. And at this point, we are not even talking about liability (fault for the accident), which is a completely separate issue. We are only talking about the degree of injury.
The nine No-Fault serious injuries in New York State’s Insurance Law are:
1. Death (brought about by the accident);
2. Dismemberment – mangling, mutilation or dismemberment (loss of) a body part;
3. Significant disfigurement (a scar; there’s no hard and fast formula for scar size – depends on the visibility of the scar; usually scars above scalp line don’t clear the threshold);
4. A fracture (broken bone);
5. Loss of a fetus (traumatic abortion);
6. Permanent loss of use of a body organ, member, function or system (the first of the “tricky” categories);
7. Permanent consequential limitation of use of a body organ or member (pain alone won’t do; headaches alone won’t do; a herniated/bulging disc alone won’t do; sprains/strains won’t do);
8. Significant limitation of use of a body function or system; or,
9. 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 (known as the 90 out of 180 days rule).
The first five are the easy categories, they are fairly straightforward.
The two less tricky categories:
Number “6”: If you can no longer use a part of your body, you can qualify.
Number “9”: Usual and customary daily activities generally means that you miss three months of work in the first six months after the accident, but there are two wrinkles. First: Your failure to work has to be medically determined. In other words, your doctor must say that you can’t work. Second: You need to show that you couldn’t do any of your other customary daily activities. This may be housework, driving the children to school, or other things.
The two trickier categories:
Numbers “7” and “8” have no fixed definition or explanation. Some cases make it; some don’t. Your lawyer needs a thorough understanding of the current case law to know how the courts are applying these two threshold categories. Frequently, it comes down to documenting a reduced range of motion in the injured part of your body – for example the doctor determines that you can’t fully bend or twist or turn
your back or neck.
