New York Legislature May Change the Car Accident Serious Injury Insurance Law

New York Serious Injury Insurance Law Section 5102 was supposed to simplify car accident lawsuits by clearly outlining which injuries deserve compensation for pain and suffering and which do not. The current definition of “serious injury” in the current NY insurance law is so vague that it leads to needless litigation, inconsistent justice for victims, excessive medical treatment and insurance company gamesmanship.

Under the current serious injury insurance law, the part that should not change, some injuries are clearly “serious injuries”:

• Death,
• Dismemberment,
• Loss of a fetus,
• Permanent loss of use of a body organ, member, function or system
• Fracture

Other categories of the current insurance law’s definition of “serious injury” are too vague to offer complete fairness. They say that a serious injury is also:

• Significant disfigurement
• Permanent consequential limitation of use of a body organ or member
• Significant limitation of use of a body function or system
• 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

Many arguments are had over whether certain injuries, that do not satisfy the hard line definitions in the first 5 categories, but may fall in the last 4 categories fall into that definition of “serious injury.”

Under the current serious injury insurance law, a car crash that leads to a hairline pinky toe fracture automatically qualifies for pain and suffering damages because it is a “serious injury” (a fracture) but a torn ACL that requires surgery leaves open the question of whether it satisfies one of the last 4 categories of “serious injury.”

The victim of a truly serious injury will wait longer and suffer more legal uncertainty merely because the law is vague.

In other words, the pinky fracture case gets resolved with fewer hassles than the torn ACL surgery case, or the herniated disc case, or the shoulder tear case or any case outside the first 5 categories.

Worse still, an injury case in one New York court could get classified differently than in another court. Same injuries, different justice.

The Possible Change to New York Serious Injury Insurance Law Section 5102

The New York legislature”s insurance law committee is sitting on bill number S1609, “An act to amend the insurance law, in relation to the definition of serious injury and determining the sufficiency of the evidence with respect thereto.”

Why the possible change? 

“To provide fairness, guidance, clarity and consistency in the application of the law determining “serious injury”, to more accurately and equitably administer the original intent of the No-Fault law.”

The New York legislature did not mean to deprive injured people of their rights to trial or to clog the courts with needless repetitive questions when it made our current definition of “serious injury.”

Medical advances since 1977 (when the current law was enacted) let doctors diagnose injuries that could not be diagnosed decades ago. Many of those injuries are to ligaments, tendons, and “soft tissue” areas. The law must change to keep up with medical technology.

Insurance companies file boilerplate motions to dismiss victims’ cases outside the first 5 categories. Sometimes they win.

Here are a FEW injury cases which were dismissed because the courts narrowly interpreted the vague NY Insurance Law definition of “serious injury”:

*MATRA V. RAZA – a person suffered injuries requiring surgery to both knees as a result of an automobile accident (Matra v. Raza -AD3d-2008 NY Slip Op. 06289 (2″” Dept. 2009));

*TAYLOR V. AMERICAN RADIO DISPATCHER. INC. – an accident victim sustained a tear of the anterior talo-fibular ligament of her ankle and a tear of the meniscus of her right knee confirmed by MRI requiring surgery (Taylor v. American Radio Dispatcher-AD3d-2009 NY Slip Op. 0427 (1″ Dept. 2009));

*BYRD V. LIMO – a person suffered a tear to the musculature of their shoulder requiring surgery (Byrd v. Limo-AD3d-2009 NY Slip Op. 09637 (2″d Dept.2009));

*DANVERS V. NEW YORK CITY TRANSIT AUTHORITY, – a victim of a motor vehicle accident sustained a torn ligament to the ankle that required surgery (Danvers v. New York City Transit AuthorityAD3d-2008 NY Slip Op. 09637 (3rd Dept. 2009));

*CARTHA V. QUIN – a person sustained injuries to their elbow requiring invasive surgery (Cartha v. Quin-AD3d-2008 Slip Op. 03714 (1″ Dept. 2008));

*VALENTIN V. POMILLA – a person suffered herniated discs to their spinal column with consequential nerve damage, which were confirmed by objective and positive EMGs, and sustained injury to their right knee, which required surgery (Valentin v. Pomilla, 59 AD3d 184 (1″ Dept. 2009)).

Even when the victims’ cases are not dismissed, the courts have imposed their own standards to figure out which injuries fall into the “serious injury” definition.

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.

Why Amend the New York Insurance Law: 

Changing the New York Insurance Law” would clarify the definition of “serious injury” for the courts, victims, medical community and insurance companies.

These amendments 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.

The New York Serious Injury Insurance Law Would be Changed to: 

The New York legislature’s bill could change the meaning of “serious injury” to read:

“…a personal injury which results in death; dismemberment; significant disfigurement; a fracture; a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or cartilage; injury to any part of the spinal column that results in injury to an intervertebral disc; impingement of the spinal cord, spinal canal, nerve, tendon or muscle; loss of a fetus; permanent total or partial loss of use of a body organ, member, function or system; any injury resulting in the need for a surgical procedure; any permanent consequential limitation of use of a body organ, member, function or system; any significant limitation of use of a body organ, member, function or system; or any medically determined injury or impairment of a permanent or 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. A finding of serious injury under any of the above enumerated categories in this definition shall be a sufficient basis for an award for past and/or future damages.”

Section 2:Amends the Insurance Law by creating a new section, 5102-a, as follows “Issues of fact and sufficiency of the evidence. Whether an injury qualifies as a serious injury pursuant to subdivision (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 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.”

New York personal injury attorneys at Fisher Injury Lawyers keep track of the latest developments in New York law to protect accident victims and their families. Please call us if you have any questions or seek a consultation.