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READY FOR TRIAL?

 

KOHANE’S “QUICK AND EASY” NEW YORK NO-FAULT GUIDE

 

What Damages Are Recoverable in an Auto Accident Case in New York?

 

Dan D. Kohane

Hurwitz & Fine, P. C.

1300 Liberty Building

Buffalo, NY 14202

716.849.8942

[email protected]

 

Assume that today, you are about to start a trial with these facts

 

Penelope Plaintiff is a legal assistant earning $36,000 a year.  She is involved in a car accident in Buffalo when her car is broadsided by another car driven by Dangerous Dave, the drunken defendant driver (a New York insured).  Assume that Dave is fully responsible because he was intoxicated, ran a red light, and struck Penelope’s car (also insured in New York) that was stopped at a red light.  Assume that the Penelope has bumps, bruises and strains and she may not have a “serious injury” as defined in the New York No Fault statute.  She is out of work for the first two months following and returns to full time employment.  Penelope has medical and chiropractic care and her medications total $1000.

 

Penelope sues the Dave only.  This case is now scheduled for a trial or a summary jury trial.

 

Assume that the full value of the pain and suffering case is $5000.

 

Please answer the following questions by filling in the blanks:

 

I. In the case of Penelope against Dave:

 

a) If it is determined that Penelope does have a serious injury, what can she recover in the lawsuit against Dave?   __________

 

b) If it determined that Penelope does not have a serious injury, what can she recover in the lawsuit against Dave? ________

 

II. Assume for the purposes of this subpart that she sues the bar, Tavern on the Snow, that over-served the Dave as well.

 

In the case of Plaintiff against the Tavern:

 

a) If it is determined that does have a serious injury, what can Penelope recover in the lawsuit against the Tavern?

 

b) If it is determined that she does not have a serious injury, what can she recover in the lawsuit against the Tavern?

 

HOW TO APPROACH THE PROBLEM

 

The KEY to answering these questions is focusing on the apt words of the New York Fault statute:

 

 

Insurance Law    § 5104.

 

Causes of action for personal injury. (a) Notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss.

 

You can find definitions of BASIC ECONOMIC LOSS, COVERED PERSON and NON ECONOMIC LOSS in section 5102.

 

Easy one first: 

 

v     COVERED PERSON (CP) is defined as an owner, operator, passenger or pedestrian.  That’s it.  Nobody else.  Note that 5104(a) ONLY applies to actions by Covered Persons against other Covered Persons.  It does not apply, at all, in actions by covered persons against non-covered persons, such as the TAVERN in Question II. 5102(j)

v     NON ECONOMIC LOSS is defined as “pain and suffering and other non-monetary detriment” in 5102(c). Accordingly, in any action by a covered person against another covered person there shall be no right of recovery for PAIN and SUFFERING except in the case of a “serious injury.”

v     BASIC ECONOMIC LOSS is a critically defined term.  Let me re-quote the statute without the parenthetical interruptions and then discuss the definition:

 

Causes of action for personal injury. (a) In any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery … for basic economic loss.

 

v     That is the absolute rule – in CP v. CP, the plaintiff cannot recover Basic Economic Loss.

 

OK, so what is Basic Economic Loss, the stuff you cannot recover?  It is simply defined:

 

(a) "Basic economic loss" means, up to fifty thousand dollars per person of the following combined items, subject to the imitations of section five thousand one hundred eight of this article:

 

(1)  All necessary expenses incurred for: … medical, hospital, nursing etc.  ... all without limitation as to time provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury.

 

(2) Loss of earnings from work which the person would have performed had he not been injured, and reasonable and necessary expenses incurred by such person in obtaining services in lieu of those that he would have performed for income, up to two thousand dollars per month for not more than three years from the date of the accident causing the injury.

 

(3) All other reasonable and necessary expenses incurred, up to twenty-five dollars per day for not more than one year from the date of the accident causing the injury.

 

In other words, subject to an overall COMBINED ceiling of $50,000, BEL is defined as:

 

v     Medical specials, UNLIMITED as to time, so long as it’s ascertainable within first year that treatment will be necessary;

v     Wages, ONLY for three years from date of accident, ONLY up to $2000 a month;

v     Household expenses, for ONLY one year from date of accident, ONLY up to $25/day.

 

Any economic loss that doesn’t fall within those individual categories is NOT Basic Economic Loss, which means it is recoverable.

 

When Can a Plaintiff Recover Economic Damages?

 

The statute answers the question quite clearly: 

 

In an action against a Non-Covered Person (i.e. bar, school, municipality, construction company, product manufacturer, etc) there are no restrictions.  All economic damages are recoverable whether there is a serious injury or not.  A lien exists under 5104(b) for the No Fault carrier to recover no fault benefits paid. The statute does not preclude any plaintiff, serious injury or not, from recovering against a non-covered person)

 

In an action against a Covered Person, a Covered Person cannot recover BASIC ECONOMIC LOSS whether or not he or she has a serious injury:

 

v     He or she CAN recover economic loss that is NOT Basic Economic loss.

v     Assuming the combined $50,000 totals have NOT been reached, it means the plaintiff cannot recover, in an action against another covered person, (a) his or her medical expenses, (b) wages within the first three years of the accident and ONLY up to $2000 a month, and (c) household expenses within the first year and only up $25 a day. If it isn’t restricted, it’s recoverable.

v     Put another way, whether or not the plaintiff has suffered a serious injury, in an action against another covered person, he or she can recover any economic loss that isn’t Basic Economic Loss.  For example:

 

    • any wages over $2000 a month are recoverable.  Any wages after three years are recoverable. If any individual category item is exceeded, the amount in excess isn’t BEL. So, in Question I, where the Penelope earned $36,000 a year (which divides up to $3000/month x 12 months) only the first $2000 is Basic Economic Loss.  So what about the remaining $1000?  What is it?  It’s economic loss, but it isn’t Basic Economic Loss.  Accordingly it is recoverable, even without a serious injury;
    • any household expenses over $25 a day are recoverable;
    • any household expenses after one year are recoverable.
    • of course, if the $50,000 combined limit is reached, anything over that is recoverable.

       

v     This rule has NOTHING to do with how much No Fault Insurance has been purchased (with the peculiar exception of OBEL – Optional Basic Economic Loss, which changes the definition of BEL just a bit, if purchased). If the plaintiff has purchased APIP (Additional Personal Injury Protection), the recovery rules just described do not change; all that changes is the No Fault carrier’s subrogation rights for any recovery of APIP benefits.

v     Put yet another way, there is no restriction in the recovery of ECONOMIC LOSS that isn’t BASIC ECONOMIC LOSS. 

v     Let me rewrite the statute with respect to the rule relating to economic losses:

 

Causes of action for personal injury. (a) In any action by or on behalf of a covered person against another covered person or a non-covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be a right of recovery any economic loss that isn’t Basic Economic Loss.


When Can a Plaintiff Recover Pain and Suffering Damages?

 

The statute has answered that question as well:

 

v     A plaintiff can ALWAYS recover pain and suffering damages against NON-COVERED persons, even without a serious injury, because the statute only limits pain and suffering (non-economic loss) recoveries to serious injuries in cases where CP are suing CP;

v     A plaintiff can ONLY recover pain and suffering damages against a COVERED person if he or she has suffered a serious injury.

 

With all this is mind, we can now answer the questions to the quiz. The correct answers are as follows:

 

Action v. Driver

a) If it is determined that does have a serious injury, what can Penelope recover in the lawsuit against the other driver?

 

Action v. Driver
b) If it determined that she does not have a serious injury, what can Penelope recover in the lawsuit against the other driver?

 

Action v. Bar
a) If it is determined that does have a serious injury, what can Penelope recover in the lawsuit against the bar?

 

Action v. Bar

b) If it is determined that she does not have a serious injury, what can Penelope recover in the lawsuit against the bar?

 

She can recover $1000 a month (wages) for two months, as it’s not BEL and she can recover her $5000 pain and suffering because she has a serious injury:  $7000

She can recover $1000 a month (wages) for two months, as it’s not BEL but she cannot recover for pain and suffering because she has no serious injury:  $2000

She can recover $3000 a month (wages) for two months ($6000), as the action is against a non-covered person, she can recover her meds ($1000) and she can recover her pain and suffering ($5000) because there is no restriction in the statute with respect to lawsuits against Non-Covered Persons. No Fault Carrier has a lien. Total: $12,000

She can recover $3000 a month (wages) for two months ($6000), as the action is against a non-covered person, she can recover her meds ($1000) and she can recover her pain and suffering ($5000) because there is no restriction in the statute with respect to lawsuits against Non-Covered Persons. No Fault Carrier has a lien. Total: $12,000

 

 

Call with any questions.

Dan D. Kohane
Hurwitz & Fine, P.C.
1300 Liberty Building
Buffalo, NY 14202
716-849-8900

Copyright 2005