• The Amendment of the New York State No-Fault Law in Motor Vehicle Accidents
  • September 23, 2011 | Author: Marshall Neimark
  • Law Firm: Neimark & Neimark LLP - New City Office
  • The New York No-Fault law is too important of a topic for me not to express my opinions.  New York is a pure no-fault state when it comes to motor vehicle accidents.  New York’s no-fault law was established over 30 years ago.  The alleged purpose of the no-fault law when it was first passed was to make people whole if they were involved in a car accident or any other motor vehicle accident except for those involving motorcycles.  No-fault is what it says - fault for an accident is not considered when it comes to the following:  no-fault insurance will pay medical expenses based on set rates that have been established, a percentage of lost wages, mileage expenses for transportation to and from medical providers as well as some other incidental expenses.

    The second part of the New York State no-fault law as it relates to motor vehicles and accidents defines the injuries people are entitled to recover for from the party at fault for the crash.  These injuries are called “serious injuries”.  According to the no-fault as it exists today in New York State serious injuries are defined as:

    • death;
    • dismemberment;
    • significant disfigurement;
    • a fracture;
    • loss of a fetus;

    The above injuries or conditions are obvious and definitely significant.  One should notice that there is no mention of herniated and/or bulging discs in the neck or back; muscle tears; ligament tears; surgical procedures; psychological injuries; as well as many other injuries that people suffer as a result of car crashes and other motor vehicle accidents.

    The remaining list of injuries defined under the New York State no-fault law is as follows:

    • 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.          

    HUH?  What does all of that legalese mean?  If you are having difficulty figuring it out do not feel bad.  In my opinion, not only do regular folks have trouble understanding what injuries they are able to recover for from the person at fault in a crash, but lawyers, judges and even legislators don’t understand what any of it means. 

    There was finally a potential light at the end of the tunnel.  Several New York State legislators were attempting to pass a law that would have made the definitions of serious injury much easier to understand and allow for people who presently are unable to recover monetary damages as a result of injuries sustained in a crash to recover from the faulting party. The change in the no-fault law would have been extremely significant.  Why?  Presently, many people are precluded from their “day in court” because of the definitions of “serious injury”.  Over the past 30 years, technology has not only changed the world but also the medical profession.  When no-fault was originally enacted the MRI as well as, other medical tests which exist today, were not yet developed. We all know that broken bones heal either on their own or with the assistance of surgery.  We all know what a bad scar or disfiguring injury looks like.  We all know what it means to lose a body part (dismemberment).  We all know what death means and we all know what it means for a woman to lose a fetus.  Remember the old adage that “a sprain is worse than a break”? In the real world “a sprain is worse than a break” has meaning, but in the no-fault world the adage means nothing.       

    It is time to discuss the meaning of the remaining definitions of “serious injury”.  What parts of the body are referred to by this:  “...a body organ, member, function or system”?  I think I understand the meaning of organ, but what is a body “member”?  What constitutes a “function”?  What is the meaning of “system” in the context of no-fault?

    Now, let’s move on to, “permanent consequential limitation of use of a body organ or member”.  Again, what is a “consequential limitation”?  Is a “consequential limitation” black and white in nature or is it different for different people?  My opinion is “consequential” cannot be defined as an absolute.  Rather, it must be looked at on a person by person basis.  The no-fault law does not allow for this.   

    The last category of “serious injury” to look at is: 

     “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.” 

    Medically determined, is simple to define.  In my mind “medically determined” means a doctor’s or other medical provider’s diagnosis of an “injury”.  Next we examine the word “impairment”.  “Impairment” is another word that should be looked at on a person by person basis and not be defined as a constant for all people.  What is “impairment”?  People are visually impaired, hearing impaired, and/or mentally impaired. People can also suffer from many other types of impairments.  Visual impairment, hearing impairment and/or mental impairment is relatively easy to diagnose and define.  Yet, why do I find it so hard to define “impairment” as it relates to personal injuries?  The simple answer is that it is too subjective of a word to have same meaning to me as it does to someone else.      

    If the above was not bad enough, we now come to this clause: “performing substantially all of the material acts which constitute such person's usual and customary daily activities”.  Once again, HUH?  “Substantially” is a word with no definite meaning.  How do we define substantial?  What is substantial for me may not be substantial for you.         

    Now we must tackle the expression “material acts”.  I do the following “material acts” on a daily basis:  shower, exercise, play with my kids, have breakfast, have lunch, have dinner, wake up at 6 AM, drive to my office, meet with clients, go to court, do paper work as well as many other things that I am unable to remember right now.  If I sprain my ankle and wake up at 7AM because of the medication I have been prescribed, am I not performing what I consider to be a “material act”?  If I do not go to Court one day because my ankle hurts am I not performing what I consider to be a “material act”?  If I cannot drive to work because of my ankle pain, am I not performing what I consider to be a “material act” that day?  I think that you get the point.

    From my experience, the no-fault law in its present form would not consider my inability to drive to work, to be a “material act”.  Why should I be precluded from my day in court because I cannot drive to work for 90 out of the first 180 days following an accident?  Would it not be fair for a jury of my peers to make that decision rather than a judge?  Judges are in charge of the law and juries are in charge of the facts.  In order for a judge to make a decision as to whether an injury is “serious” for the purposes of the no-fault law there can be no question as to the facts of the matter.  For example, in my life a “material act” is driving to work while in a judge’s mind driving to work might be an immaterial act.  Since the judge feels that it is an immaterial act, he or she can and would dismiss my case which would preclude my right to recover monetary damages.

    Is it not simple common sense that if driving to work is a “material act” to me and not to a judge a question of fact exists?  Based on the difference as to what is “material” to me and that which is “material” to a judge a question of fact would exist dictating that a jury should decide if something I am unable to do is a “material act”. In fact it would go against the very reasons that we have a legal system by allowing a judge to determine my injury is not worthy of recovery and take my day in court away since driving to work is immaterial in one judge’s opinion.

    Many lawyers, judges, legislators and people have been trying to figure out the definition of “serious injury” for over 30 years.  Despite decisions rendered by the Courts in New York State, an injury suffered by one person who is permitted to recover money may not allow another person with the same injury to recover money.       An example that has always perplexed me is that if an individual sustains a herniated disc as a result of a car accident, a judge could determine that it is not a “serious injury” and dismiss the case.  If another person who works at a construction site sustains the same exact injury as the individual who was involved in the car accident, the construction worker could potentially recover hundreds of thousands of dollars if not millions of dollars depending on how the herniated disc affected his or her life.  The unfortunate individual hurt in the car accident with the same affects to his or her life will be left with absolutely no recovery.  Fair?  It is certainly not fair for victims of car accidents.  On the other hand, every insurance company licensed in New York State would disagree and say it is more than fair.  Why?  The BOTTOM LINE is by limiting the ability for recovery in motor vehicle accidents, the insurance companies BOTTOM LINE is being padded with the very premiums we pay in order to protect ourselves and others.

    The new law would have changed the definition of “serious injury” to the following:

    5102(d) Ins. Law as follows: 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; a surgical procedure to any injured part of the body; any other permanent consequential limitation of use of a body organ, member, function or system; any other significant limitation of use of a body organ, member, function or system; or any other 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 would create a new section 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 subdivision (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.

    The highlighted portions above show the amendments of “serious injury” as defined by the proposed no-fault law.  These amendments would have allow juries not judges to determine what is meant by “serious injury” restoring the right for every person to have their day in court.

    If you are in favor of these changes to the no-fault law, please contact your senate and assembly representatives and inform them that this change is what you want.  If you think that this change is going to raise your premiums and cost you more money please look at those who have been injured.  Ask yourself if it is fair to allow someone with a chip fracture of their pinky to meet the definition of “serious injury” while another person with a herniated disc or sprained ankle is precluded from monetary recovery?  If you’re of the opinion that the no-fault law should remain unchanged, again, remember the old adage “a sprain is worse than a break.”

    As of June 2011, this article becomes irrelevant.  The above changes to the no-fault law have officially been shelved.  Several other legislatures in their infinite wisdom have now proposed changes that clearly favor the insurance companies and take away “Joe Injured’s” day in Court.

    These changes, in my opinion, are simply words that do not create much of a difference in the interpretation of the No-Fault law in its present form. The new bill uses the following words:

    A Complete  tear  or  rupture  of  a nerve, tendon, ligament, cartilage or muscle; A tear, rupture or impingement of  a  nerve, tendon,  ligament, cartilage  or muscle which results in a significant impairment of a body organ, member, function or system

    Where does this new bill leave us?  Exactly as we have been for over the past 30 years. New words have been added to the No-Fault law, yet we are still left with the words “significant”, “material acts”, “member”, “function”, “system”, “consequential limitation” and “impairment”.  I am always of the belief that change is good when it actually makes a difference. Does this new law make a difference?  I know what my opinion is.  What is your opinion?