Auto Accident Information Need to Know

Helpful Legal Information

AUTOMOBILE ACCIDENTS - NO FAULT LAW

Following any automobile accident in New York State, lost earnings and medical bills are payable under mandatory “No Fault” provisions. You can collect for pain and suffering outside the No Fault law but only if you have a “serious” injury and another person or entity can be found at fault (i.e., they were negligent and/or unreasonable or broke the Vehicle and Traffic Law.)

Motorcycle drivers do not have to prove “serious injury” but also are not entitled to No Fault unless they took out a special policy for that coverage. This is expensive and rarely occurs. If one of the entities at fault for the accident is not covered by No Fault (i.e. a town with a missing or faulty guardrail), the No Fault carrier may have a “lien” or claim upon your lawsuit which must be paid back upon recovery.

A “serious injury” is not easily defined. Only an experienced personal injury attorney can advise you if your injury may qualify. Most fractures, as well as injuries with permanency and which are backed up by objective medical proof, will qualify. (A short-term sprain having only subjective complaints of pain, for example, may not qualify as a “serious injury”.)

The Insurance Law defines “serious injury” as follows: “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.”

Thousands of cases (known as “Case Law” or “Common Law”) have further refined/defined “serious injury”. For this reason full consultation with experienced counsel, preferably early on after your injury, is highly recommended.

No Fault only pays for 80% of lost earnings and only to a limit of $2,000 per month for 36 months. You can add any additional losses beyond those caps to your personal injury lawsuit. There is also a cap of $50,000 for mandatory No Fault coverage. You may have coverages which expand upon that through your individual policy, but these extensions may produce a subrogation right on behalf of your own No Fault carrier to the monies from your lawsuit. Again, experienced counsel can help you navigate through these tricky waters.

Furthermore, if your family owns more than one vehicle, or you are a pedestrian, there may be multiple policies that could afford No Fault coverage. In serious cases this becomes very important as a way of obtaining more than the $50,000 No Fault limit for wage and medical losses. As always, it is highly important that you seek legal advice promptly to protect your rights to multiple insurance policy protections.

UNDERINSURANCE/UNINSURED COVERAGE

The greatest risk a safe driver has on the roadway is not hitting someone else with his or her vehicle. Rather, it is getting hit by an “uninsured” or “underinsured” motorist.

For a relatively small premium you are strongly urged to carry at least a $300,000 underinsurance policy on your automobile. At least purchase all the coverage you can afford. If the other driver, for example, has only a $25,000 minimum policy, or no policy at all, you can recover what the accident really cost you in pain and suffering, lost wages and/or medical bills through what is known as an “underinsurance claim”. These claims go through an arbitration process. What is key is that you, or your attorney, properly preserve your claim within ninety days following your accident by communication with your carrier. If that time is exceeded, there may be other alternatives that can be looked into on your behalf. If you are represented, make sure your attorney protected these important rights.

WORKERS' COMPENSATION and CONSTRUCTION ACCIDENTS

Many believe that if you are injured at work your sole remedy is Workers' Compensation. This system pays you nothing for pain and suffering and is quite limited in many other ways as far as compensating for loss.

If (1) you are hurt on a construction site, or (2) a machine caused your accident, or (3) a person not employed by your own employer caused your injury, even if in part, you may be able to bring what is known as a “Third Party Action”. In a third party action, you can be fully compensated – even for pain and suffering. The claims can often be substantial. You may have to repay some portion of the Workers' Compensation claim back but, even so, you may benefit significantly by the lawsuit.

Any construction worker who falls from any height at a worksite or who has something fall on them should contact an attorney. In these situations building owners, (other than single or 2-family residences) and not just your employer, owe special duties to insure that you are not harmed by a “gravity related” incident.

Even if you are involved in only a basic Workers' Compensation claim, be sure to report the accident to your employer within thirty days and file the claim within two years. Your employer is required to post the name of your carrier at the workplace. Under a basic (not third party action) Workers' Compensation claim, you receive no payment for the first five days of lost time unless ten days are lost. Then payment is made from the beginning loss day. There are limits as to weekly lost wages. In 2001 you only could receive $400 per week in pay loss from basic Workers Compensation.

If you were working while you were in a car accident, your Workers' Compensation is the primary carrier and No Fault fills in any losses (as secondary carrier) up to its own limits. An automobile accident is often a situation where the above “third party action” could be filed on your behalf.

MUNICIPAL CASES

Cases involving highway or sidewalk defects, school liability and/or any fault/negligence on behalf of a governmental body are very technical. You must file a “Notice of Claim” within ninety days with such municipality and/or sue the entity within one year and ninety days of the occurrence of the event that gave rise to your claim. Having an experienced attorney is critical to knowing what to include in your claim, where and how to file it, and how and when to present a lawsuit thereafter.

Again, the public is advised that our firm offers its services on a contingency fee basis. If we do not recover any sums on your behalf, you owe us nothing for our time. We also provide an
in-depth initial consultation at no cost to you.

DEFECTIVE DRUG CASES

Unfortunately sometimes dangerous prescription drugs see their way into the marketplace. Drugs such as Avandia, Bextra, Byetta, CellCept, Cipro, Crestor, Digitek, Duragesic Patch, Fleet Phospho Soda, Levaquin, Nuvaring, Ortho Evra, Raptiva, Serevent, Seroquel, Vioxx, Yaz, Yasmin, Zicam, and others have been shown to sometimes cause severe side effects and even death. If you or your loved one has been severely injured by the use of one of these or other prescription drugs, you may have a legal claim for your injuries. Timely legal representation is important to cases like these.

HOW TO FIND THE BEST PERSONAL INJURY ATTORNEY

If you've suffered a personal injury through the fault of another, you may be out of work, overwhelmed with piles of medical bills, or in constant pain and agony. Under any of these circumstances, researching, locating, and retaining the best lawyer to handle your personal injury claim in court can seem like yet one more insurmountable obstacle. There are, however, some guidelines that can help you select the right personal injury lawyer. With the right advocate on your side, you can breathe a sigh of relief and let someone else carry at least part of your burden, allowing you to focus on your recovery.

It is also important to consider an attorney local to the Finger Lakes region. The Law Office of Jacob P. Welch services Corning, Elmira, Ithaca, Bath, Hornell, Penn Yan, and Watkins Glen. We have successfully went to trial in all of the above locations and are familar with the local judges in each region.

PERSONAL INJURY ATTORNEY SELECTION TIPS

One of the most important factors to consider when selecting a personal injury lawyer is whether the lawyer has experience in and concentrates his or her legal practice on personal injury law. Attorneys with personal injury law as their primary focus have a decided advantage in that they understand the complexities of the area, can more easily keep abreast of the latest developments and ever-evolving laws, and are more likely to know the habits and tactics of opposing counsel - all of which can give their clients an edge over defendants. Plaintiffs' lawyers with demonstrated experience dealing with insurance companies and their lawyers may have also gained credibility with opposing parties, and thus have less of an uphill battle in order to achieve an equitable settlement on thier clients' behalf.

Another factor worth considering is whether a particular personal injury lawyer has experience trying cases and winning substantial verdicts. Although most personal injury claims are settled out of court, knowing that an attorney is a skilled litigator can add an additional dimension to the client's overall sense of security. And if the case does fail to settle, strong and shrewd litigation skills can almost certainly precipitate a better outcome for the plaintiff.

Another consideration is what might be defined as "happy balance." There is no question that a good trial lawyer is one who zealously takes on opponents. Yet there can be excesses. A lawyer who tries every case is going to be either (a) spread awfully thin or (b) very delayed in getting cases back at the office moving along - most likely including your own. Furthermore, it is often foolish to risk what a jury may assess when a fair offer has been made.

On the other hand, if (1) a lawyer is known for always "settling up" or (2) there is a lot of pressure to move cases along in a large volume practice, the insurance company may know that they can pay less than top dollar. All the carrier needs to do is (a) wait for the hard work of trial preparation to begin or (b) depend on your lawyer's nervousness over walking into a courtroom. Thus, having a lawyer who will try a case and has a reputation for doing it well is an invaluable asset.

Finally, personal injury trial attorneys are an interesting blend, as they have to (a) know their law but also (b) know medical issues. The as well have to (c) know how to associate with jurors who, in the end, will be the people who will decide your case. If your attorney also has the reputation of being a genuinely good person, you are way ahead when it comes to having the right lawyer in your corner. Like a good stock in the stock market, the best payoffs usually come with what/who you have "hitched your star to".

SHOULD YOU HIRE A LARGER OR SMALLER FIRM?

Some larger firms offer a multi-member team approach which can have its advantages. Also, a large firm may sound big and powerful. Keep in mind, however, that the insurance company rates case value on the individual lawyer who will be bringing the case to trial. Some large firms do have excellent counsel but these same attorneys can be reserved for battling only the large multi-million dollar cases.

Smaller firms have a distinct advantage for the consumer in the sense that you will be represented by the lawyer you expected would be your advocate.

Also keep in mind that a local attorney may know what a jury in his particular locale may do - a key benefit in deciding whether to take the insurance carrier's top offer.

You may also want to do a little homework on the attorney's support staff. These are the people who help line up witnesses, keep deadlines from passing and who relay messages to the attorney. A weak link anywhere can affect a successful outcome. In a larger firm it is not always easy to know who will be dealing with your file.

LAWYER ADVERTISING ALSO BEARS MENTIONING.

Unfortunately, personal injury practice, for better or worse, has gotten extremely competitive. Competing often includes some media exposure to get clientele attention.

A big part of lawyer advertising ties to announcements of large dollar numbers, i.e. past case results. These announcements can be helpful to the consumer in the sense of showing those legal abilities which have led to success as opposed to failure. They do, however, have their pitfalls. The fact that any given law firm may have obtained an award is no guarantee that the lawyer who got the big settlement will be the person who will be guiding the strategy and approaches taken in your particular case. The better question for the consumer is what has the lawyer who will be representing me done for his past clients. Also bear in mind that when it gets down to it, there is only a limited handful of personal injury attorneys who have personally achieved million dollar results for their clients. If you can retain such a top-end lawyer, who still appears eager to represent clients and who is not (a) resting on his reputation or (b) taking a lot of time off on the money he has made, you may have picked a winner.

Furthermore, on this same topic of lawyer advertising, keep in mind that just being on television or in the phone book means nothing if it does not translate into your getting a lawyer who is (a) skillful, (b) compassionate, (c) available to you and (d) who has a personal reputation of being a strong advocate. The real work on your case has nothing to do with the glitz of the media. On the other hand, if such qualities are present in a lawyer who advertises, then view advertising as a bridge that helps you find the lawyer you need to assist with your case.

WHEN TO HIRE AND WHEN TO FIRE

Most personal injury lawyers work on a contingent-fee basis, under which the client pays a fee only if he or she wins the case. In New York State typical contingent fees are 33-1/3% of the amount of damages recovered; if no damages are recovered, no legal fees are due, but costs may still need to be paid.

Many personal injury lawyers provide initial consultations free of charge. Thus potential plaintiffs may interview multiple candidates before signing a fee agreement. Care should be taken, however, to make a selection in a relatively short period of time, since the law provides strict limits on the time periods in which claims may be made and/or when suit may be brought. Moreover, it is often critical to obtain, document and preserve evidence shortly after the accident occurs.

Once engaged an attorney should be responsive to the client's needs, answering questions satisfactorily, returning phone calls, and, most importantly, representing the client's interests zealously. If at any time a client is dissatisfied with his or her counsel, the client should be able to change attorneys without penalty.

CONCLUSION

Dealing with a personal injury, potential income loss, almost certain medical bills, and the resulting stress and anxiety can be overwhelming. One way to alleviate some of the immediate pressure and ensure the most favorable long-term consequences is to select a personal injury attorney who is experienced, skilled, and responsive to his or her clients' needs. Experienced personal injury attorneys can take care of your legal needs so that you can focus your energies on your recovery, and they may even be able to help you secure interim benefits to which you are legally entitled, well in advance of resolution of your lawsuit. If you have been injured, contact the right lawyer as soon as possible.