Part I

I have been writing for and reading The Jewish Link for years. I have read about so many different professions (e.g. mortgage financing, home decluttering, fundraising for charities, cancer research, etc., etc.)

I never write about my profession (except sometimes to joke about it in my short bios!) I would like to devote two columns to explain what I do and educate you all a bit. (OK, this is not as important as educating you about cancer as Dr. Neugut does.) I will write this column about representing people injured in auto accidents and the second one about representing people who are injured in a fall.

In New York, when you are injured while driving a vehicle, the bills for your treatment get paid by your own auto insurance company. (In New York, you have coverage for up to $50,000 in medical bills and lost earnings. New Jersey gives you even more.) But in order to receive any money for yourself (=for your pain and suffering), your injuries have to fit into one of the “serious injury” categories as the statute defines them. The first few categories are: death; dismemberment; significant disfigurement; fracture; and loss of a fetus. But these injuries do not occur in the typical auto accident.

Another category is inability to perform “substantially all” of your “usual and customary daily activities” for at least 90 out of the 180 days following the occurrence. But many injured parties do return to their job within the first 90 days; others cannot prove that they meet this category because they are unemployed.

The main chance that the typical client has involves two other categories: 1) permanent consequential limitation of use of a body organ or member, and 2) significant limitation of use of a body function or system. No attorney is going to argue that his client’s injuries are significant but not permanent, so essentially, it is the “permanent consequential limitation” category that is the issue in the typical case. (The categories in New Jersey are not exactly the same but are very similar. Also, in New Jersey, you can opt out of the injury category requirement, but then your premium will be more.)

In most automobile accidents, the injured party (=the plaintiff) will have stopped treatment long before the case comes up for trial, usually 2-3 years later. Moreover, during the course of the litigation, the defense will have a doctor examine the plaintiff. This doctor will conclude that, although the plaintiff did sustain injuries and require treatment, he has now recovered and no permanent or significant injuries were sustained. Therefore he is entitled to nothing.

How do attorneys recover for clients in these cases? The answer is usually through the findings of MRIs. MRIs are able to document herniations to discs in the neck and beck, and tears in the areas of the knees and shoulders. Of course, typically the defense doctors disagree with the plaintiff’s doctor’s reading of the MRI films. 98% of the time, the radiologists hired by the defense firms take the position that the abnormal conditions on the MRI are degenerative and pre-date the accident. At trial, the role of the jury will be to hear the conflicting medical testimony and to decide based on factors such as the severity of the impact and the age of the plaintiff whether they believe that the plaintiff really has sustained permanent and/or significant injuries attributable to this accident. In addition to the MRI evidence, the plaintiff will have his treating physician testify at trial and quantify exactly how much motion has been lost in the injured area. This is necessary in order to fit the category. Since there is a real chance that the juries will agree with the plaintiff and their medical experts, the insurance companies do eventually settle most of these cases, even though they fight them initially.

In cases like these, it is important that the suit be started early on. If an attorney does not bring suit early in these cases, but waits 2 years (in New York, one can wait up to 3 years to file suit), by the time the case comes up for trial 4-5 years after the accident, the injured party will typically have stopped treating 3 years before. It will be very hard to convince the jury at trial that the injured party still has a permanent or significant injury.

In many cases, the person bringing the suit was at fault himself. Can one recover if one is at fault?

New York is very liberal in this regard. In New Jersey and many other states, the law is that if a jury determines that you are 50% or more at fault for the accident, you are barred from any recovery. But New York is a “pure” comparative negligence state. This means that even if the jury finds you 90% at fault, you can still recover. The jury will make a valuation of your injuries and your recovery will be limited to 10% of that value. (Of course, attorneys will not typically bring suits for individuals whom they believe to be much more than 50% at fault, as the damages will be so greatly reduced by the percentage.)

I handled a case in which a bicyclist was struck by a vehicle. The bicyclist was driving in the roadway in the wrong direction, going against the traffic. He eventually had shoulder surgery. Ordinarily, I would not have accepted this case. However, a witness saw that the driver was talking on her cellphone at the time. At the arbitration (arbitrations are sometimes used instead of trials), the witness testified about the cellphone use by the driver. The arbitrator found my client 50% at fault for driving against traffic, but also found the driver 50% at fault for talking on her cellphone and not paying proper attention. The arbitrator valued my client’s injuries at $50,000, so the net recovery was $25,000. This was all we wanted anyway since the driver was only insured for $25,000.

What happens if the other vehicle has no insurance? Your own auto insurance carrier will provide coverage in such a case. Also, if you pay extra, you can get something called “underinsurance” coverage which gives you extra coverage in case the other vehicle only has a small amount of coverage. For example, in New York, the required liability coverage amount is only $25,000. (In New Jersey, it is only $15,000). So if you are in a serious accident, you will need to utilize your own underinsurance coverage. But you have to realize this in advance when you renew your policy, so that you will have the coverage when you need it. (You get to choose how much coverage.)

Most cases do not go to trial. Only ones involving large amounts of money do. In general, my field is about reviewing a play that is never going to be performed! We settle the case with the insurance company, often a long time before there would be a trial, based on a rough estimation of what would happen at the trial (=the play). Both sides save the costs of the medical experts at trial, my client gets the money 2 years early, and the defense firms save on their litigation costs.

Mitchell First is a personal injury attorney with 30 years of experience. His office is in Manhattan and he can be reached at 1-800-710-7250. His website is www.MitchellFirstlaw.com.