Tuesday, May 18, 2010
Tuesday, May 11, 2010
potential new no fault law in for car accident victims New York
New York's No-Fault Law (Ins. L. Article 51) was controversial when it was enacted 36 years ago (L. 1973, ch. 13, in full effect Feb. 1, 1974), and it remains so today. Adopted by the Legislature to correct certain infirmities recognized to exist under the common-law tort system of compensating automobile accident claimants, the Comprehensive Automobile Insurance Reparations Act, as it was officially known, changed the legal landscape by providing a compromise: prompt payment for basic economic loss to injured persons regardless of fault, in exchange for a limitation on litigation to cases involving "serious injury." See Pommells v. Perez, 4 NY3d 566, 570-571 (2005); Licari v. Elliott, 57 NY2d 230, 234-235 (1982); Montgomery v. Daniels, 38 NY2d 41, 50-51 (1975).
The legislative intent underlying this statute was "to weed out frivolous claims and limit recovery to significant injuries," thereby lowering insurance premiums and reducing the burden on the courts. Toure v. Avis Rent A Car Systems Inc., 98 NY2d 345, 350 (2002); Dufel v. Green, 84 NY2d 795, 798 (1995); Licari, supra. "Tacit in this legislative enactment is that any injury not falling within the new definition of serious injury is minor and a trial by jury is not permitted under the no-fault system." Pommells v. Perez, 4 NY3d 566 (2005).
As originally enacted, the No-Fault Law contained a two-part definition of the term "serious injury" which was "keyed to the nature of the injuries and the amount of the medical expenses." Licari v. Elliott, supra, The monetary part provided that if reasonable medical costs exceeded $500, a "serious injury" automatically would be established. That provision was repealed in 1977, when "experience demonstrated to the Legislature that the $500 threshold provided a target for plaintiffs which was too easily met and that the standard was unsuitable to fulfill the purpose of the No-Fault Law. (Memorandum of State Executive Dept., 1977 McKinney's Session Laws of N.Y., p. 2450)." Licari, supra.
It was then replaced with the present definition of "serious injury," i.e., a personal injury which results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus1; (6) permanent loss of use of a body organ, member, function, or system; (7) permanent consequential limitation of use of a body organ or member; (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 90 days during the 180 days immediately following the occurrence of the injury or impairment. Ins. L. §5102(d).
Complaints and Criticisms
How well has the No-Fault Law met its goals? From the very beginning, the statute has had its detractors and, indeed, there have been numerous calls over the years for its total repeal. It appears that this movement has gained strength in recent years, as not only the parties to "serious injury" threshold litigation, but also the courts, have begun to voice their dissatisfaction and complaints.
For example, in Pommells v. Perez, 4 NY3d 566, 571-572 (2005), then-Chief Judge Judith S. Kaye, stated, as follows:
Abuse nonetheless abounds. From 1992 to 2000, reports of No-Fault fraud rose more than 1,700 percent and constituted 75 percent of all automobile fraud reports received by the Insurance Department in 2000 (see Matter of Medical Socy. of State of N.Y. v. Serio, 100 NY2d 854 [2003]; see also State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]). There is, similarly, abuse of the No-Fault Law in failing to separate "serious injury" cases, which may proceed in court, from the mountains of other auto accident claims, which may not. That "basic economic loss" has remained capped at $50,000 since 1973 provides incentive to litigate. In the context of soft-tissue injuries involving complaints of pain that may be difficult to observe or quantify, deciding what is a "serious injury" can be particularly vexing. Additionally, whether there has been a 'significant' limitation of use of a body function or system (the threshold statutory subcategory into which soft-tissue injury claims commonly fall) can itself be a complex, fact-laden determination. Many courts have approached injuries of this sort with a well-deserved skepticism. Indeed, failure to grant summary judgment even where the evidence justifies dismissal, burdens court dockets and impedes the resolution of legitimate claims.
More recently, Bronx Supreme Court Justice Paul Victor, in Vidal v. Maldonado, 23 Misc.2d 186 (Sup. Ct. Bronx Co. 2008), bemoaned what he perceived as the deficiencies in the existing No-Fault Law, and implicitly urged legislative reform of that statute. In a lengthy, well-written decision punctuated by paragraph headings such as "Another Frustrating Assembly Line 'Serious Injury' Motion," "The Dilemma Continues" and "A Difficult and Frustrating Task," Justice Victor disapproved of both moving defendants and opposing plaintiffs for their submission of "assembly line 'cookie cutter'" papers, which predictably and in "boiler plate fashion," state and support the parties' respective positions; complained about the "great expenditure of limited judicial time" required for the court to review the "usually copious" submissions by both sides, as well as the extensive current appellate decisions in this area; criticized the litigants for appealing "many (too many)" of these cases, and the appellate courts for issuing "non-unanimous (and sometimes acrimonious) decisions which are often difficult to reconcile with prior precedent"; and reproved the lack of guidance to the bench and bar in the enabling legislation as to the scope of the terms used in the statute.
As to this latter point, Justice Victor observed, "For example, one should reasonably assume that the Legislature sought to distinguish 'significant limitations of a body function or system' from a 'consequential limitation of a body organ or member,' however, there appears to be no practical difference. Some courts have held that 'consequential' means 'significant' [citation omitted]; and there are abundant cases in which all of the above terms (including body function, system, organ or member) are used interchangeably. The guidelines, conditions and examples provided by the Court of Appeals in a series of decisions, including Toure…although very helpful, have not entirely unburdened the trial courts, and these serious injury claims continue to be the cause of incessant motion practice, and an abundant use of judicial resources at both the trial and appellate levels."
In addition, Justice Victor expressed his frustration at the current system of resolving No-Fault "serious injury" disputes, as follows: "There are those who harbor a flawed assumption that judges (on papers) rather than medical scientists and jurors, are more able and equipped to discern and distinguish the false, frivolous and/or insignificant claims of serious injury from those which can cause legitimate, sometimes profound and 'more than frivolous' limitations, pain and quality of life impairments. This legislatively imposed task has caused more than a season of judicial discontent and frustration, it has resulted in an extremely difficult and flawed process which results too often in an inconsistent and unfair application of the law."
Different Problem
It should be noted that although Justice Victor has identified the apparent similarity between the "permanent consequential limitation" and "significant limitation" statutory categories as a problem worthy of correction, we have long been concerned with, and, we admit, confused by, the difference between these categories, as drafted by the Legislature. Experience has shown that in almost all cases in which the plaintiff is asserting an injury to his or her neck or back—be it a herniated disc or a bulging disc—claims are made under both the "permanent consequential limitation of use" and the "significant limitation of use" categories. However, as previously noted, for reasons that we have never understood, the "permanent consequential limitation of use" category is limited, by its terms, to a "body organ or member," while the "significant limitation of use" category is restricted to a "body function or system."2
The medical definitions of the terms "organ," "member," "function," and "system," reveal their distinction. Dorland's Illustrated Medical Dictionary (27th ed. 1988), for example, defines these terms as follows:
member… 1. a part of the body distinct from the rest in function or position. 2. a limb. See also membrum (1000).
membrum… a limb, or member, of the body…a general term for one of the limbs, that is, the upper (arm, forearm, hand), or lower (thigh, leg, foot). Called also…extremity…(1003).
organ… a somewhat independent part of the body that performs a special function or functions; see organum…(1187).
organum… an organ; a somewhat independent part of the body that is arranged according to a characteristic structural plan, and performs a special function or functions; it is composed of various tissues, one of which is primary in function….(1189).
function… 1. the special, normal or proper physiologic activity of an organ or part….(1667).
system… 1. a set or series of interconnected or interdependent parts or entities (objects, organs or organisms) that function together in a common purpose or produce results impossible of achievement by one of them acting or operating alone (1652).3
Such medical/legal authority strongly suggests that claimed limitations of the neck and/or back do not involve a body "organ" (heart, liver or skin), or a "member" (limb or extremity), and, therefore, do not fall within the scope of coverage of the "permanent consequential limitation of use" category of serious injury under Insurance Law §5102(d). Rather, such claimed limitations would involve a "function" or "system," and, thus, would potentially qualify only under the "significant limitation of use" category (or the "90/180 day" category, if applicable).4 Several cases have so suggested or held,5 while several others have explicitly or inferentially rejected that argument.6
New Bill Introduced
Against this backdrop, we have recently learned of a proposed bill that was introduced to both houses of the New York State Legislature on April 16, 2010 (A10734 and S07518), which, if passed, would dramatically change the definition of "serious injury" and radically alter the litigation of personal injury lawsuits arising out of automobile accidents.
The "Justification" section of the Sponsor's Memorandum for the Assembly's bill makes the following argument in support of its proposed changes to the No-Fault Law, which are remarkably reminiscent of Justice Victor's complaints:
When the legislature originally passed N.Y.S. Ins. Law §5102, it never intended that New York's citizens would be deprived of their constitutional right to a trial by jury where they actually sustained a serious injury. The judicial transformation and interpretation of this statute has produced overwhelming obstacles never intended by the legislature and has clogged the courts with boilerplate "threshold motions" which monopolize judicial resources. Over the past twenty years developments in technology have enabled medical practitioners to identify injuries to ligaments, tendons, tissue, nerves and other non-bony structures through the use of CT Scans, MRIs, EMGs and other methods. Prior to these advances in technology significant injuries would not have been revealed or adequately appreciated but they are now readily identifiable, and the seriousness of their effects are understood far better than ever before.
Unfortunately, current law has not kept pace with modern medicine. As a result numerous cases where a serious injury was clearly present have been dismissed because the existing law does not clearly and specifically list and identify such injuries as actionable, regardless of how the injury affected the accident victims' lives. The proposed amendments would curtail summary dismissal of legitimate cases involving significant injuries not objectively verifiable when the law was originally enacted in 1977…. The Judiciary has repeatedly asked the Legislature for clarification of the statute and firm guidance as to its application, to ensure fairness and consistency in applying the "serious injury threshold" and ease the enormous burden the current law inflicts on the bench and upon citizens that have suffered serious injuries. The amendments proposed by this Bill would remedy these problems by clarifying what qualifies as a "serious injury" and promote fairness and consistency in its application, taking into account modern medicine and technology which have enabled medical practitioners to identify with more specificity and clarity those injuries having real and serious consequences. The amendment would further call for jury determinations on factual issues surrounding the nature and extent of the claims, rather than continuing to hamstring an already overburdened judiciary with myriad "threshold" motions. Most importantly, these amendments would promote fair, swift, consistent, rational, just and easily comprehensible results, in keeping with the intent of the original law.
Described as "an act to amend the insurance law, in relation to the definition of serious injury and determining the sufficiency of the evidence related to the serious injury," the proposed legislation adds to the definition of "serious injury" contained in Ins. L. §5102(d) four new or additional categories or types of injuries: (1) "a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or cartilage"; (2) "injury to any part of the spinal column that results in injury to an intervertebral disc"; (3) impingement of the spinal cord, spinal canal, nerve, tendon or muscle"; and (4) a surgical procedure to any injured part of the body."
In addition, sensitive, perhaps, to the definitional arguments set forth above, the proposed amendment adds the words "function or system" to the "permanent consequential limitation" category, and adds the words "organ or member" to the "significant limitation" category, thus rendering both categories similarly and consistently applicable to a "body organ, member, function or system." It also adds the word "permanent" to the final statutory category—the "90/180" category—so that it would apply to both permanent and non-permanent injuries that affect the plaintiff as described.
In addition to the foregoing, the new bill adds a new section 5102-a, titled "Issues of Fact and Sufficiency of the Evidence," which effectively eliminates the "serious injury" threshold summary judgment motion. This new section reads as follows: "Issues of fact and sufficiency of the evidence. Whether an injury qualifies as a serious injury pursuant to subsection (d) of section five thousand one hundred two of this article shall be a question of fact. Where evidence is offered as to (a) whether an injury qualifies as a serious injury pursuant to subsection (d) of section five thousand one hundred two of this article, or (b) the causation of such an injury, the sufficiency of such evidence shall be determined by the trier of fact. Sufficiency and weight of evidence offered, including but not limited to that pertaining to qualitative and/or quantitative assessment of injury, shall be reserved for the trier of fact."
Reaction From the Bar
Not surprisingly, reaction to this proposed legislation from the bar has been swift and strong. For example, Buffalo Insurance defense counsel, Roy A. Mura, in his superb blog titled "Coverage Counsel" (http://nycoveragecounsel.blogspot.com), dated April 28, 2010, has raised the following questions and comments: "What's an impingement of a muscle, and why is it added twice? Will strains and spasms qualify? Contusions? Non-herniated but bulging discs? Will sutures qualify as a 'surgical procedure'?
"The imprecision and ambiguity of these proposed additional 'serious injury' categories should be embarrassing to the sponsors of this bill… Don't like the courts meddling with the personal injury plaintiff's lawyers livelihood? There's a legislative app for that. In addition to seeing to it that nearly every minor, soft-tissue injury that results from a car accident will be actionable, cut the damnable courts out of the picture by outlawing summary judgment on the 'serious injury' issue…. In no other area of the law is a defendant denied his or her right to make a dispositive motion. The very idea is patently ridiculous as antithetical to the rule of law and function of the judiciary. What about a defendant's constitutional right to not face trial of a frivolous or unmeritorious lawsuit? I suspect that §5102-a may be just a throwaway component inserted into these bills as a bargaining chip the sponsors may be willing to give up in order to obtain passage of the expanded definition of 'serious injury.' But without a prohibition of summary judgment, the hopelessly vague and imprecise four additional types of serious injuries will likely spawn more, not less, motion and appellate practice."
In the interest of fairness, Mr. Mura referred his readers to the also excellent New York Personal Injury Law Blog of attorney, Eric Turkewitz (http://www.newyorkpersonalinjurylawblog.com/2010/04/new-york-no-fault-law-to-finally-be-pdated.html) for "a thoughtful plaintiff's attorney's perspective on this bill." Therein, Mr. Turkewitz notes his approval of the proposed bill, which attempts to cure "the essential ambiguity in the (existing) law as it tries rightly to define medicine, especially given that medicine has moved forward over the last 30+ years." He also points out "the problems that Judge Victor discussed with the uneven administration of justice, with some judges tossing out cases while others would allow the exact same ones to go forward."
In Mr. Turkewitz's view, "the bill leaves this essential fact-finding function to the jury, where it belongs. Vagueness and ambiguity have no place in the law. It creates problems as courts get swamped with motions and appeals that they are ill-prepared to deal with if a legislature hasn't done a good job of establishing definitions. The bill would bring some fundamental fairness to New York's No-Fault Law, seeing to it that all people are treated the same. And that can only be a good thing if you happen to be the person that was injured."
In response, Mr. Mura stated, as follows: "Eric and I appear to agree that the no-fault system is broken, but we differ on whether, and if so, how it can be fixed. No one can legitimately argue with the laudable goal of eliminating inconsistencies in appellate decisions and recognizing that a causally related surgical shoulder or knee is more deserving of admission to court than a broken pinky finger or toe. The proposed additional four categories of serious injuries, however, would make court a general admission event in New York, especially with a repeal of CPLR Rule 3212 only with respect to the 'serious injury' threshold issue."
To be sure, the debate will continue. The goal of fixing and/or improving the current No-Fault statute is, indeed, a laudable one, which should be accomplished after careful consideration of the issues and in contemplation of fairness to both—or all—sides including the courts. We will attempt to follow this issue carefully and to keep our readers advised of all developments as they occur.
the article was written by Jonathan A. Dachs and Norman H. Dachs, Esqs. and appeared in The New York Law Journal on May 11, 2010, p.3, col. 1.
The legislative intent underlying this statute was "to weed out frivolous claims and limit recovery to significant injuries," thereby lowering insurance premiums and reducing the burden on the courts. Toure v. Avis Rent A Car Systems Inc., 98 NY2d 345, 350 (2002); Dufel v. Green, 84 NY2d 795, 798 (1995); Licari, supra. "Tacit in this legislative enactment is that any injury not falling within the new definition of serious injury is minor and a trial by jury is not permitted under the no-fault system." Pommells v. Perez, 4 NY3d 566 (2005).
As originally enacted, the No-Fault Law contained a two-part definition of the term "serious injury" which was "keyed to the nature of the injuries and the amount of the medical expenses." Licari v. Elliott, supra, The monetary part provided that if reasonable medical costs exceeded $500, a "serious injury" automatically would be established. That provision was repealed in 1977, when "experience demonstrated to the Legislature that the $500 threshold provided a target for plaintiffs which was too easily met and that the standard was unsuitable to fulfill the purpose of the No-Fault Law. (Memorandum of State Executive Dept., 1977 McKinney's Session Laws of N.Y., p. 2450)." Licari, supra.
It was then replaced with the present definition of "serious injury," i.e., a personal injury which results in (1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus1; (6) permanent loss of use of a body organ, member, function, or system; (7) permanent consequential limitation of use of a body organ or member; (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 90 days during the 180 days immediately following the occurrence of the injury or impairment. Ins. L. §5102(d).
Complaints and Criticisms
How well has the No-Fault Law met its goals? From the very beginning, the statute has had its detractors and, indeed, there have been numerous calls over the years for its total repeal. It appears that this movement has gained strength in recent years, as not only the parties to "serious injury" threshold litigation, but also the courts, have begun to voice their dissatisfaction and complaints.
For example, in Pommells v. Perez, 4 NY3d 566, 571-572 (2005), then-Chief Judge Judith S. Kaye, stated, as follows:
Abuse nonetheless abounds. From 1992 to 2000, reports of No-Fault fraud rose more than 1,700 percent and constituted 75 percent of all automobile fraud reports received by the Insurance Department in 2000 (see Matter of Medical Socy. of State of N.Y. v. Serio, 100 NY2d 854 [2003]; see also State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 [2005]). There is, similarly, abuse of the No-Fault Law in failing to separate "serious injury" cases, which may proceed in court, from the mountains of other auto accident claims, which may not. That "basic economic loss" has remained capped at $50,000 since 1973 provides incentive to litigate. In the context of soft-tissue injuries involving complaints of pain that may be difficult to observe or quantify, deciding what is a "serious injury" can be particularly vexing. Additionally, whether there has been a 'significant' limitation of use of a body function or system (the threshold statutory subcategory into which soft-tissue injury claims commonly fall) can itself be a complex, fact-laden determination. Many courts have approached injuries of this sort with a well-deserved skepticism. Indeed, failure to grant summary judgment even where the evidence justifies dismissal, burdens court dockets and impedes the resolution of legitimate claims.
More recently, Bronx Supreme Court Justice Paul Victor, in Vidal v. Maldonado, 23 Misc.2d 186 (Sup. Ct. Bronx Co. 2008), bemoaned what he perceived as the deficiencies in the existing No-Fault Law, and implicitly urged legislative reform of that statute. In a lengthy, well-written decision punctuated by paragraph headings such as "Another Frustrating Assembly Line 'Serious Injury' Motion," "The Dilemma Continues" and "A Difficult and Frustrating Task," Justice Victor disapproved of both moving defendants and opposing plaintiffs for their submission of "assembly line 'cookie cutter'" papers, which predictably and in "boiler plate fashion," state and support the parties' respective positions; complained about the "great expenditure of limited judicial time" required for the court to review the "usually copious" submissions by both sides, as well as the extensive current appellate decisions in this area; criticized the litigants for appealing "many (too many)" of these cases, and the appellate courts for issuing "non-unanimous (and sometimes acrimonious) decisions which are often difficult to reconcile with prior precedent"; and reproved the lack of guidance to the bench and bar in the enabling legislation as to the scope of the terms used in the statute.
As to this latter point, Justice Victor observed, "For example, one should reasonably assume that the Legislature sought to distinguish 'significant limitations of a body function or system' from a 'consequential limitation of a body organ or member,' however, there appears to be no practical difference. Some courts have held that 'consequential' means 'significant' [citation omitted]; and there are abundant cases in which all of the above terms (including body function, system, organ or member) are used interchangeably. The guidelines, conditions and examples provided by the Court of Appeals in a series of decisions, including Toure…although very helpful, have not entirely unburdened the trial courts, and these serious injury claims continue to be the cause of incessant motion practice, and an abundant use of judicial resources at both the trial and appellate levels."
In addition, Justice Victor expressed his frustration at the current system of resolving No-Fault "serious injury" disputes, as follows: "There are those who harbor a flawed assumption that judges (on papers) rather than medical scientists and jurors, are more able and equipped to discern and distinguish the false, frivolous and/or insignificant claims of serious injury from those which can cause legitimate, sometimes profound and 'more than frivolous' limitations, pain and quality of life impairments. This legislatively imposed task has caused more than a season of judicial discontent and frustration, it has resulted in an extremely difficult and flawed process which results too often in an inconsistent and unfair application of the law."
Different Problem
It should be noted that although Justice Victor has identified the apparent similarity between the "permanent consequential limitation" and "significant limitation" statutory categories as a problem worthy of correction, we have long been concerned with, and, we admit, confused by, the difference between these categories, as drafted by the Legislature. Experience has shown that in almost all cases in which the plaintiff is asserting an injury to his or her neck or back—be it a herniated disc or a bulging disc—claims are made under both the "permanent consequential limitation of use" and the "significant limitation of use" categories. However, as previously noted, for reasons that we have never understood, the "permanent consequential limitation of use" category is limited, by its terms, to a "body organ or member," while the "significant limitation of use" category is restricted to a "body function or system."2
The medical definitions of the terms "organ," "member," "function," and "system," reveal their distinction. Dorland's Illustrated Medical Dictionary (27th ed. 1988), for example, defines these terms as follows:
member… 1. a part of the body distinct from the rest in function or position. 2. a limb. See also membrum (1000).
membrum… a limb, or member, of the body…a general term for one of the limbs, that is, the upper (arm, forearm, hand), or lower (thigh, leg, foot). Called also…extremity…(1003).
organ… a somewhat independent part of the body that performs a special function or functions; see organum…(1187).
organum… an organ; a somewhat independent part of the body that is arranged according to a characteristic structural plan, and performs a special function or functions; it is composed of various tissues, one of which is primary in function….(1189).
function… 1. the special, normal or proper physiologic activity of an organ or part….(1667).
system… 1. a set or series of interconnected or interdependent parts or entities (objects, organs or organisms) that function together in a common purpose or produce results impossible of achievement by one of them acting or operating alone (1652).3
Such medical/legal authority strongly suggests that claimed limitations of the neck and/or back do not involve a body "organ" (heart, liver or skin), or a "member" (limb or extremity), and, therefore, do not fall within the scope of coverage of the "permanent consequential limitation of use" category of serious injury under Insurance Law §5102(d). Rather, such claimed limitations would involve a "function" or "system," and, thus, would potentially qualify only under the "significant limitation of use" category (or the "90/180 day" category, if applicable).4 Several cases have so suggested or held,5 while several others have explicitly or inferentially rejected that argument.6
New Bill Introduced
Against this backdrop, we have recently learned of a proposed bill that was introduced to both houses of the New York State Legislature on April 16, 2010 (A10734 and S07518), which, if passed, would dramatically change the definition of "serious injury" and radically alter the litigation of personal injury lawsuits arising out of automobile accidents.
The "Justification" section of the Sponsor's Memorandum for the Assembly's bill makes the following argument in support of its proposed changes to the No-Fault Law, which are remarkably reminiscent of Justice Victor's complaints:
When the legislature originally passed N.Y.S. Ins. Law §5102, it never intended that New York's citizens would be deprived of their constitutional right to a trial by jury where they actually sustained a serious injury. The judicial transformation and interpretation of this statute has produced overwhelming obstacles never intended by the legislature and has clogged the courts with boilerplate "threshold motions" which monopolize judicial resources. Over the past twenty years developments in technology have enabled medical practitioners to identify injuries to ligaments, tendons, tissue, nerves and other non-bony structures through the use of CT Scans, MRIs, EMGs and other methods. Prior to these advances in technology significant injuries would not have been revealed or adequately appreciated but they are now readily identifiable, and the seriousness of their effects are understood far better than ever before.
Unfortunately, current law has not kept pace with modern medicine. As a result numerous cases where a serious injury was clearly present have been dismissed because the existing law does not clearly and specifically list and identify such injuries as actionable, regardless of how the injury affected the accident victims' lives. The proposed amendments would curtail summary dismissal of legitimate cases involving significant injuries not objectively verifiable when the law was originally enacted in 1977…. The Judiciary has repeatedly asked the Legislature for clarification of the statute and firm guidance as to its application, to ensure fairness and consistency in applying the "serious injury threshold" and ease the enormous burden the current law inflicts on the bench and upon citizens that have suffered serious injuries. The amendments proposed by this Bill would remedy these problems by clarifying what qualifies as a "serious injury" and promote fairness and consistency in its application, taking into account modern medicine and technology which have enabled medical practitioners to identify with more specificity and clarity those injuries having real and serious consequences. The amendment would further call for jury determinations on factual issues surrounding the nature and extent of the claims, rather than continuing to hamstring an already overburdened judiciary with myriad "threshold" motions. Most importantly, these amendments would promote fair, swift, consistent, rational, just and easily comprehensible results, in keeping with the intent of the original law.
Described as "an act to amend the insurance law, in relation to the definition of serious injury and determining the sufficiency of the evidence related to the serious injury," the proposed legislation adds to the definition of "serious injury" contained in Ins. L. §5102(d) four new or additional categories or types of injuries: (1) "a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or cartilage"; (2) "injury to any part of the spinal column that results in injury to an intervertebral disc"; (3) impingement of the spinal cord, spinal canal, nerve, tendon or muscle"; and (4) a surgical procedure to any injured part of the body."
In addition, sensitive, perhaps, to the definitional arguments set forth above, the proposed amendment adds the words "function or system" to the "permanent consequential limitation" category, and adds the words "organ or member" to the "significant limitation" category, thus rendering both categories similarly and consistently applicable to a "body organ, member, function or system." It also adds the word "permanent" to the final statutory category—the "90/180" category—so that it would apply to both permanent and non-permanent injuries that affect the plaintiff as described.
In addition to the foregoing, the new bill adds a new section 5102-a, titled "Issues of Fact and Sufficiency of the Evidence," which effectively eliminates the "serious injury" threshold summary judgment motion. This new section reads as follows: "Issues of fact and sufficiency of the evidence. Whether an injury qualifies as a serious injury pursuant to subsection (d) of section five thousand one hundred two of this article shall be a question of fact. Where evidence is offered as to (a) whether an injury qualifies as a serious injury pursuant to subsection (d) of section five thousand one hundred two of this article, or (b) the causation of such an injury, the sufficiency of such evidence shall be determined by the trier of fact. Sufficiency and weight of evidence offered, including but not limited to that pertaining to qualitative and/or quantitative assessment of injury, shall be reserved for the trier of fact."
Reaction From the Bar
Not surprisingly, reaction to this proposed legislation from the bar has been swift and strong. For example, Buffalo Insurance defense counsel, Roy A. Mura, in his superb blog titled "Coverage Counsel" (http://nycoveragecounsel.blogspot.com), dated April 28, 2010, has raised the following questions and comments: "What's an impingement of a muscle, and why is it added twice? Will strains and spasms qualify? Contusions? Non-herniated but bulging discs? Will sutures qualify as a 'surgical procedure'?
"The imprecision and ambiguity of these proposed additional 'serious injury' categories should be embarrassing to the sponsors of this bill… Don't like the courts meddling with the personal injury plaintiff's lawyers livelihood? There's a legislative app for that. In addition to seeing to it that nearly every minor, soft-tissue injury that results from a car accident will be actionable, cut the damnable courts out of the picture by outlawing summary judgment on the 'serious injury' issue…. In no other area of the law is a defendant denied his or her right to make a dispositive motion. The very idea is patently ridiculous as antithetical to the rule of law and function of the judiciary. What about a defendant's constitutional right to not face trial of a frivolous or unmeritorious lawsuit? I suspect that §5102-a may be just a throwaway component inserted into these bills as a bargaining chip the sponsors may be willing to give up in order to obtain passage of the expanded definition of 'serious injury.' But without a prohibition of summary judgment, the hopelessly vague and imprecise four additional types of serious injuries will likely spawn more, not less, motion and appellate practice."
In the interest of fairness, Mr. Mura referred his readers to the also excellent New York Personal Injury Law Blog of attorney, Eric Turkewitz (http://www.newyorkpersonalinjurylawblog.com/2010/04/new-york-no-fault-law-to-finally-be-pdated.html) for "a thoughtful plaintiff's attorney's perspective on this bill." Therein, Mr. Turkewitz notes his approval of the proposed bill, which attempts to cure "the essential ambiguity in the (existing) law as it tries rightly to define medicine, especially given that medicine has moved forward over the last 30+ years." He also points out "the problems that Judge Victor discussed with the uneven administration of justice, with some judges tossing out cases while others would allow the exact same ones to go forward."
In Mr. Turkewitz's view, "the bill leaves this essential fact-finding function to the jury, where it belongs. Vagueness and ambiguity have no place in the law. It creates problems as courts get swamped with motions and appeals that they are ill-prepared to deal with if a legislature hasn't done a good job of establishing definitions. The bill would bring some fundamental fairness to New York's No-Fault Law, seeing to it that all people are treated the same. And that can only be a good thing if you happen to be the person that was injured."
In response, Mr. Mura stated, as follows: "Eric and I appear to agree that the no-fault system is broken, but we differ on whether, and if so, how it can be fixed. No one can legitimately argue with the laudable goal of eliminating inconsistencies in appellate decisions and recognizing that a causally related surgical shoulder or knee is more deserving of admission to court than a broken pinky finger or toe. The proposed additional four categories of serious injuries, however, would make court a general admission event in New York, especially with a repeal of CPLR Rule 3212 only with respect to the 'serious injury' threshold issue."
To be sure, the debate will continue. The goal of fixing and/or improving the current No-Fault statute is, indeed, a laudable one, which should be accomplished after careful consideration of the issues and in contemplation of fairness to both—or all—sides including the courts. We will attempt to follow this issue carefully and to keep our readers advised of all developments as they occur.
the article was written by Jonathan A. Dachs and Norman H. Dachs, Esqs. and appeared in The New York Law Journal on May 11, 2010, p.3, col. 1.
Sunday, May 9, 2010
Tuesday, April 20, 2010
How long should my personal injury case take? part 1
I start this series about how long should my personal injury case take with your choice of your lawyer. I start here for two reasons, first this is the only aspect within your control and second it is the single most important factor in determining the speed of your case.
The first aspect of how long your case will take will depend upon how long it takes your lawyer to commence a lawsuit. In New York there is a three year statute of limitations for a lawyer to commence a personal injury lawsuit. That means the lawyer has three years from the date of accident to start a lawsuit or you will lose your rights even if you have a valid claim. (Note there are some exceptions ie infancy and insanity to name a couple.) Many lawyers will wait more than a year or even close to the three year limit before commencing suit. Theses lawyers may try to settle the case pre-suit to avoid the work and costs involved with bringing an action. If the case cannot be settled pre-suit then you have lost all that time the lawyer chose to wait. At Subin Associates it is our time tested philosophy to commence suit as early as possible. As soon as we have identified the responsible parties we will immediately commence a suit while we are simultaneously conducting our investigation. Frequently, we will be commencing a lawsuit within weeks of getting your case. (note we believe if the insurance company is willing to settle early it is still preferable to commence a suit as they know the have to pay or litigate). Just this aspect alone means a case handled by Subin Associates could be resolved 2-3 years faster than a case handled by another personal injury firm.
After a lawsuit is started the next step in a personal injury lawsuit is the defendant will respond to the lawsuit with whats called an answer. Along with the answer the defendant will serve discovery demands. These discovery demands will ask for HIPPA authorizations from you so the defendant can obtain your medical records as well as a document that will list all your injuries and claims you are making against the defendant. This document is called the bill of particulars. The case will not continue until the plaintiff's lawyer provides a response to these demands. Here again the speed of your case depends on the size of your lawyers firm and the amount of staff they have to do this work which is quite time consuming. A lawyer can let cases languish waiting to provide this discovery. We at Subin have dedicated staff to provide this discovery and generally have responses in less than two weeks.
Once your lawyer has provided discovery then the next step is depositions. Your lawyer needs to have the man power to have a lawyer available for your deposition. this is another reason why larger firm like Subin Associate can serve you better and resolve your case faster than many other law firms. Deposition delay can slow a case another year or more.
The next step is filing the notice of trial readiness this requires appropriate staffing and the lawyer to determine if the case is indeed trial ready. For example, has the lawyer retained all the appropriate experts or does he have to sue any additional parties that might be responsible for the accident? We at Subin prepare every case for trial from the beginning, although it is extra work for us week believe we get more substantial recoveries for our clients because insurance companies know if they don't pay what we want we are ready and willing to litigate every case.
The last step of this process is the trial itself. If your lawyer is not prepared to try the case they will continue to delay it in the hopes of reaching a settlement. If the lawyer cannot settle the case they will often refer the case to another law firm to try it. Many lawyers and law firms refer their cases for trial to Subin Associates. This switching of law firms adds additional delay. We believe it is better for the client to retain us initially as we process the case faster and more completely than non-trial related firms.
Friday, April 16, 2010
How long should my New York personal injury case take?
How long should my New York personal injury case take?
I am frequently asked this question by new clients so I am embarking on a series of blogs to explain the components of a personal injury case and why some cases take longer than others.
Here is an overview of the factors that effect the length of a personal injury case in New York.
1.The lawyer’s roll
2.The stages of a case
3.Where the case is brought
4.Who is being sued
5.The client’s roll
6.The judge’s roll
7.The need for additional parties
Please check in regularly as I update this blog.
Thursday, April 8, 2010
We never quit until we deliver!
Perseverance leads to huge recovery for accident victim. JG our client was involved in a car accident on September 22, 2003. The driver of the truck that struck JG denied any contact with her car. JG retained personal injury lawyers, Subin Associates, to represent her for the injuries she sustained in this accident. Subin Associates commenced a lawsuit and served the driver of the truck and notified his insurance company. When the time expired for the defendant truck driver to answer Subin Associates made an application in court to win the case based upon the defendant’s failure to respond called a default. After this default application was made and submitted to the judge, lawyers representing the truck driver’s insurance company wrote a letter to the judge basically stating they did not want to be in default. We objected, as the defendant lawyers did not follow the legal rules relating to answering the complaint or opposing our application. Despite our objections the judge denied our motion and let the truck driver put in a late answer and defend our lawsuit.
As we were prosecuting JG’s lawsuit we also filed an appeal stating that the judge made a legal mistake in allowing defendant to defend the lawsuit. Our appeal was heard by the higher court and agreed with us and reversed the decision of the judge who allowed the truck driver to put in a late answer. This meant that JG would win the case. This was just the beginning.
About two months after the appeals court ruling the insurance carrier for the truck driver disclaimed coverage and stopped paying the truck driver’s lawyer. As there was no attorney opposing us we made another application to the judge for a default and this motion was granted. Then a trial on the amount of damages was held and the judge awarded our client over $1,000,000! Now we had this big judgment but no deep pocket to pay it because the insurance company disclaimed coverage.
Our next step was to start an action against JG’s own insurance company for uninsured motorists coverage this is coverage that protects people from being left with no recovery when they are injured by a vehicle with no or too little liability coverage). When we did this we knew the truck driver’s insurance company would have to show that their disclaimer was legally valid (we didn’t believe the disclaimer was valid).
This second action was an entirely new lawsuit to determine which insurance should apply JG’s $100,000 policy or the truck driver’s $1,000,000 policy. This new lawsuit had the same parties except this time the insurance companies for both drivers were parties to the lawsuit. This second lawsuit resulted in another trial in which the judge determined that the insurance company for the truck driver did not disclaim properly and that they were responsible to pay the $1,000,000 judgment. Despite this decision the insurance company refused to pay and appealed the ruling in this second lawsuit.
During the appeal of lawsuit number two, we started a third lawsuit against the insurance company for the truck driver. This third lawsuit was to allow us to get original judgment against the truck driver converted to be directly against the truck driver’s insurance company so we could collect the full amount from that carrier. We litigated this third lawsuit against a new law firm that specializes in these types of cases that are very rare. The lead lawyer for the insurance company swore we would never collect a penny for our client from the truck driver’s carrier. After much fighting we won this lawsuit too and now had a judgment against the truck driver’s insurance carrier. The insurance company continued to refuse to pay and appealed this decision also.
After three complete lawsuits and two appeals we hired the New York State Sheriff to go collect our client’s money. Unfortunately, this insurance carrier was a European Company and had no assets in New York.
After reading our Appellate papers the attorneys for the insurance carrier contacted us and agreed to pay JG on the judgment.
As we were prosecuting JG’s lawsuit we also filed an appeal stating that the judge made a legal mistake in allowing defendant to defend the lawsuit. Our appeal was heard by the higher court and agreed with us and reversed the decision of the judge who allowed the truck driver to put in a late answer. This meant that JG would win the case. This was just the beginning.
About two months after the appeals court ruling the insurance carrier for the truck driver disclaimed coverage and stopped paying the truck driver’s lawyer. As there was no attorney opposing us we made another application to the judge for a default and this motion was granted. Then a trial on the amount of damages was held and the judge awarded our client over $1,000,000! Now we had this big judgment but no deep pocket to pay it because the insurance company disclaimed coverage.
Our next step was to start an action against JG’s own insurance company for uninsured motorists coverage this is coverage that protects people from being left with no recovery when they are injured by a vehicle with no or too little liability coverage). When we did this we knew the truck driver’s insurance company would have to show that their disclaimer was legally valid (we didn’t believe the disclaimer was valid).
This second action was an entirely new lawsuit to determine which insurance should apply JG’s $100,000 policy or the truck driver’s $1,000,000 policy. This new lawsuit had the same parties except this time the insurance companies for both drivers were parties to the lawsuit. This second lawsuit resulted in another trial in which the judge determined that the insurance company for the truck driver did not disclaim properly and that they were responsible to pay the $1,000,000 judgment. Despite this decision the insurance company refused to pay and appealed the ruling in this second lawsuit.
During the appeal of lawsuit number two, we started a third lawsuit against the insurance company for the truck driver. This third lawsuit was to allow us to get original judgment against the truck driver converted to be directly against the truck driver’s insurance company so we could collect the full amount from that carrier. We litigated this third lawsuit against a new law firm that specializes in these types of cases that are very rare. The lead lawyer for the insurance company swore we would never collect a penny for our client from the truck driver’s carrier. After much fighting we won this lawsuit too and now had a judgment against the truck driver’s insurance carrier. The insurance company continued to refuse to pay and appealed this decision also.
After three complete lawsuits and two appeals we hired the New York State Sheriff to go collect our client’s money. Unfortunately, this insurance carrier was a European Company and had no assets in New York.
After reading our Appellate papers the attorneys for the insurance carrier contacted us and agreed to pay JG on the judgment.
Wednesday, March 3, 2010
Brooklyn Accident Attorney case victoryJury Awards Over $7 Million to MTA Bus Crash Victims
NEW YORK (1010 WINS) -- Two women injured in a 2005 MTA bus collision in Brooklyn were awarded over $7 million in damages.
Brenda Whaley and Amanda Wade were passengers in a car driving on Ocean Parkway Service Road crossing Avenue U in Brooklyn in July 2005. As they were proceeding across the intersection, they were struck by a Transit Authority bus.
While the bus driver claimed the car ran a stop sign, the driver of the car carrying Whaley and Wade said they stopped at the intersection and the bus ran a red light before hitting them. A jury found the MTA responsible for the accident at a trial held to determine fault.
In a separate trial held last Thursday to assess damages, a jury came to a verdict that awarded Whaley, who sustained six fractures and punctured lungs, $7,250,000. Wade, who was less severely injured, was awarded $250,000.
The attorney for the plaintiffs, Herbert Subin, says that the case could have been settled for $3 million long before Thursday's verdict, but the Transportation Authority refused to budge.
"I am gratified that my clients will be getting appropriate compensation for their injuries," Subin said, "but as a New Yorker I am dismayed that the TA could have saved millions if they acted reasonably in negotiating a settlement."
The Transit Authority plans to appeal to decision.
Brooklyn Personal Injury Attorney Wins Brooklyn Accident Lawyer Case:
MTA Rolls Dice in Lawsuit and LosesMonday, 01 Mar 2010, 6:02 PM EST
Published : Monday, 01 Mar 2010, 6:02 PM EST
By LINDA SCHMIDT
MYFOXNY.COM - The cash-strapped Metropolitan Transportation Authority gambled big on a lawsuit -- and lost. The agency could have saved $4.5 million by settling with two women who were injured in a car accident with a city bus. Instead, the MTA went to a full trial and lost.
The settlement offer from two women was $3 million. But the MTA refused. Then last week, the jury awarded the women $7.5 million.
So their attorney is saying the MTA is out of control and wasting taxpayers' money.
Brenda Whaley suffered a punctured lung, spent 16 days in the hospital, and underwent 2 surgeries after a New York City bus driver ran a red light and slammed into this car she was in three years ago. Amanda Wade was also in the car; she was hurt, too.
From the beginning the women, said they wanted to settle their lawsuit with the MTA for $3 million -- or even less. Their own lawyer has said the MTA should have settled and saved taxpayer money, especially since the agency is in a financial crisis and proposing cuts to jobs and service.
"I think it's beyond negligent," said Herb Subin, the victim's attorney
The MTA is now appealing the ruling and wouldn't comment on the pending litigation.
James Cohen, an associate professor of law at Fordham University, said that taxpayers should be clearly upset. He said there was strong evidence against the MTA in this case and that its attorneys should have settled when they had the chance.
"Legally they haven't served their client well," Cohen said, "which is the taxpayer, so they haven't done a good job for their client."Because of the appeal, the two women may not see any money for years -- if at all.
Bus crash victims win 7.5M in New York City Transit suit
BY SAMUEL GOLDSMITH, Daily News
"New York City Transit was ordered to pay a staggering $7.5 million in damages to a pair of Brooklyn women last week for a bus accident, their lawyer said."
Subin associates press coverage for their latest Brooklyn Personal Injury Lawyer case
BY SAMUEL GOLDSMITH, Daily News
"New York City Transit was ordered to pay a staggering $7.5 million in damages to a pair of Brooklyn women last week for a bus accident, their lawyer said."
Subin associates press coverage for their latest Brooklyn Personal Injury Lawyer case
Tuesday, January 12, 2010
Safe on the subway?
http://www.nypost.com/p/news/local/manhattan/subway_board_er_beware_DfGUW7Ughqwx745BHhtuJNThe Transit Authority’s total neglect in safely maintaining the subway system in this article about the loose running boards. (Running boards are the wooden beams on the edge of the platform that stop the trains from hitting the platform). The running platform also serves as the last step before riders enter the train. This step into the train is a very dangerous time for the; pedestrian. From a human factors standpoint the pedestrian is confronted with changing lighting conditions, other pedestrians boarding and disembarking and stepping over the gap between the train and platform.
A running board that gives way or a gap that is too wide can cause the pedestrian’s leg to become wedged in the gap. We have represented accident victims that sustained fractures, degloving (the skin and muscle are pulled off of the bone) and amputations due to legs becoming caught in the gap.
Running board and gap maintenance should be the Transit Authorities top priority due to the extreme danger to its riders. Instead, they do no maintenance and even after a scathing report by their own employees about the danger they wait over six months to begin to investigate.
One of the huge social benefits of personal injury law is that injured accident victims can be compensated for their injuries due to the Transit Authorities negligence and if the financial pain is sufficient the TA will change their practice to do routine maintenance therefore avoiding the injuries in the first place and making the subway safer for all of us.
It has been my experience that the TA would rather not pay to safely maintain their system, allow the riders to get injured and defend the personal injury claims that are ultimately made, because it’s cheaper to fight the personal injury claims then to maintain the system.
That’s why our system of compensating personal injury victims is so vital because as this article proves the TA will accept danger to the riders if it is cheaper than making the system safe.
Thursday, January 7, 2010
Surfing while you drive
http://www.subinlaw.com
Putting the Internet in front of drivers is the classic example of companies choosing profit over safety. It is beyond any reasonable question that encouraging and enabling drivers to text or do web searching while they are driving will lead to more automobile accidents personal injuries and wrongful deaths. So what is "driving" this trend to treat the drivers seat like an office chair? Profits! The car companies will sell more cars at higher margins, the tech companies will sell more chips and screens and Google will sell more of everything. It will be interesting to see how product liability law evolves around this new phenomenon. generally a person injured by a defective product may sue the manufacturer or seller of the product for injuries sustained due to the defective product. The product may be defective due to a failure of the manufacturer to issue a warning on the product to avoid certain latent risks. I am sure the car companies will provide appropriate warnings. A second theory against a product's manufacturer is if the product is defectively designed. This is going to be a fertile area for cases in which people are seriously injured or killed due to driver inattention using dashboard computers. I believe it is extremely forseeable that drivers will be distracted and thus much more likely to injure and kill other drivers and pedestrians. One major issue is whether the federal government sets standards that permits in dash Internet, which would substantially reduce the consumers ability to bring product liability cases against the manufacturers due to the federal preemption of state law. The bottom line is that many lives are going to be ruined and lost so drivers have access to the Internet as they are driving. This seems like a bad trade off to me. Subinlaw
http://www.nytimes.com/2010/01/07/technology/07distracted.html
Putting the Internet in front of drivers is the classic example of companies choosing profit over safety. It is beyond any reasonable question that encouraging and enabling drivers to text or do web searching while they are driving will lead to more automobile accidents personal injuries and wrongful deaths. So what is "driving" this trend to treat the drivers seat like an office chair? Profits! The car companies will sell more cars at higher margins, the tech companies will sell more chips and screens and Google will sell more of everything. It will be interesting to see how product liability law evolves around this new phenomenon. generally a person injured by a defective product may sue the manufacturer or seller of the product for injuries sustained due to the defective product. The product may be defective due to a failure of the manufacturer to issue a warning on the product to avoid certain latent risks. I am sure the car companies will provide appropriate warnings. A second theory against a product's manufacturer is if the product is defectively designed. This is going to be a fertile area for cases in which people are seriously injured or killed due to driver inattention using dashboard computers. I believe it is extremely forseeable that drivers will be distracted and thus much more likely to injure and kill other drivers and pedestrians. One major issue is whether the federal government sets standards that permits in dash Internet, which would substantially reduce the consumers ability to bring product liability cases against the manufacturers due to the federal preemption of state law. The bottom line is that many lives are going to be ruined and lost so drivers have access to the Internet as they are driving. This seems like a bad trade off to me. Subinlaw
http://www.nytimes.com/2010/01/07/technology/07distracted.html
Tuesday, January 5, 2010
Liability for falling objects in New York personal injury cases
http://www.subinlaw.com
This case involving a falling moose head raises some interesting issues in personal injury law. To collect for her injuries the accident victim will have to prove the restaurant was negligent. The insurance company will invariably defend based upon a lack of notice. There is no negligence unless the personal injury attorney can prove Notice. In order to prove Notice the personal injury attorney will have to show the restaurant operators knew the object was potentially dangerous (called actual notice) or through reasonable inspection should have known the object might fall (called constructive notice). The premises owners (if they are a separate entity) will not be liable because they couldn’t control how objects were hung in the restaurant.
If the restaurant operators are not willing to admit they knew the object was a danger for falling before it fell then the only way to prove actual notice is to get testimony that someone warned the operators of the restaurant.
Proving constructive notice would be possible if the personal injury attorney could show the object had fallen before or was hanging precariously for a sufficient period of time before it fell so the operators should have noticed it and fixed it.
There are two ways to avoid proving notice. First, that the operators created the dangerous condition (for example used a simple picture frame hook which was not designed to hold the weight of the object). Or lastly, a legal concept called res ipsa loquitor. This concept allows for an inference of negligence even if the personal injury lawyer cannot prove exactly how the act happened. The requirements for res ipsa loquitor is that the action doesn’t generally happen in the absence of negligence. The classic example is a barrel falling out of a window. The defendant had exclusive control over the object. Plaintiff cannot be a factor in causing the event.
From the facts presented in the article it appears the plaintiff would be entitled to utilize res ipsa loquitor.
Serious injuries needs serious lawyering
The lawyer in the wrongway driver on the Taconic Parkway (Diane Schuler)wrongful death action is going to be faced with a difficult road in obtaining adequate compensation for the victims of this accident. The obvious source of funds will come from any insurance coverage on the van (owned by Diane Schuler's brother) and any coverage Diance Schuler had. If that coverage is low then an alternative source would be underinsurance coverage on the Bastardi's vehicle.
If, as I anticipate, the combination of these coverages is insufficient to compensate the accident victims then there is a potential for a claim against the State of New York for insufficient roadway design. These cases are extremely difficult. Firstly, they must be brought in the Court of Claims (the only Court that has jurisdiction over the State of New York) which have only judges no juries.
In this particular case the most difficult aspect for the plaintiffs to prove is causation. Even if the entrance to and the signs on the Taconic were defectively designed would any of that made a difference to Diane Schuler who was drunk and high at the time. Given that there will be no testimony from Diane Schuler I believe it will be almost impossible for the plaintiffs to do anything but speculate as to the causation. Without any direct proof the Court will dismiss the case. I will follow and update as news becomes available.
http://www.subinlaw.com/
If, as I anticipate, the combination of these coverages is insufficient to compensate the accident victims then there is a potential for a claim against the State of New York for insufficient roadway design. These cases are extremely difficult. Firstly, they must be brought in the Court of Claims (the only Court that has jurisdiction over the State of New York) which have only judges no juries.
In this particular case the most difficult aspect for the plaintiffs to prove is causation. Even if the entrance to and the signs on the Taconic were defectively designed would any of that made a difference to Diane Schuler who was drunk and high at the time. Given that there will be no testimony from Diane Schuler I believe it will be almost impossible for the plaintiffs to do anything but speculate as to the causation. Without any direct proof the Court will dismiss the case. I will follow and update as news becomes available.
http://www.subinlaw.com/
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