Barriers to Commencing a Lawsuit: What is a Serious Injury in a Queens Car Accident?
There are many barriers which could prevent a party from commencing an action in New York. Some of these barriers are procedural barriers, such as filing a lawsuit within the statute of limitations period. Other barriers are substantive barriers, like having a “serious injury” under the insurance law. For victims who are injured in a Queens car accident, or any other types of motor vehicle accidents in New York, both the statute of limitations and serious injury requirements must be satisfied. But many people ask what is a serious injury in a Queens car accident and how can I satisfy this requirement?
Our experienced NYC personal injury lawyer at Cohen and Cohen Law Group, P.C. knows how important it is under New York law for a victim and his or her family to be able to recover compensation for pain and suffering, lost wages, lost future earnings, medical bills, loss of consortium, property damage, and many other types of compensation. We have the experience, skill, knowledge, and resources to help victims of motor vehicle wrecks to help families answer what is a a serious injury in a Queens car accident and prove this in a court of law. Call for a FREE consultation to learn how we can begin to protect your rights to compensation today.
Understanding Car Insurance and Serious Injuries
In order to discuss serious injuries it must be examined why this is a basic requirement. Under New York law, all motorists most have a minimum of $25,000/$50,000 insurance, which is $25,000 coverage per person and a total of $50,000 per accident. This is the law, and motorists who do not have this must could be fined. Motorists should protect themselves and their families by purchasing SUM insurance, which is insurance that covers them over and above what a defendant may have. This SUM insurance is only for the benefit of the purchaser and the purchaser’s family, meaning your premiums go right to you. Our experienced Queens car accident lawyers recommend that all individuals purchase as much SUM coverage as they can possibly afford.
The reason why there are minimum numbers if because New York is a “no fault” state. This means that, after an accident, a motorist can turn to his or her car insurance to immediately get payment for medical bills and lost wages. It does not matter who is at fault. The purpose is for insurance to immediately pay to make victims have as little hurdles as possible for expenses.
As time goes on and fault is established, victims and their insurance companies can go after the at-fault insurance company for indemnification or contribution. But in order to do so, special requirements must be met. This includes establishing what is a serious injury in a Queens car accident.
The “Serious Injury” Requirement Under the Insurance Law
Under New York insurance law, in order for a victim of a car accident to commence an action he or she must have suffered a “serious injury” under the definitions section of insurance law. This is meant to prevent excessive motor vehicle accident lawsuits from individuals who have mild or moderate injuries. This is known as a “threshold” requirement.
What is a serious injury is defined under New York Insurance Law section 5102 (d), which provides the following:
“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; 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.
Therefore, in order to commence a Queens car accident lawyer in New York, a victim must establish that he or she has sustained one of these types of serious injuries. Otherwise, a defense lawyer may move to dismiss your case on the grounds that you have not sustained a serious injury.
Understanding the Serious Injury Requirements: An Overview of Each Type
What is a serious injury in a Queens car accident begins with an analysis of each type. As you can see from the definition, while the requirement is very clear that a victim must have a “serious injury” under the New York Insurance Law, the definition can be broad. There is a lot of litigation and judicial decisions which evaluate these requirements. In fact, serious injury law is usually hotly contested and frequently an issue in any type of Queens car accident.
Therefore, our Queens car accident lawyers explain the following serious injuries under NY Insurance Law section 5102 (d):
Death: This is the most obvious type of serious injury which is not going to be litigated by the victims obviously, but the victim’s family in a wrongful death action.
Dismemberment: Not as common but usually proven by the obvious fact that a victim has lost a limb.
Significant Disfigurement: This can be harder to prove in certain types of scarring cases, but when there are widespread burn injuries or catastrophic facial injuries, this type of injury can be easy to prove. In addition, amputation or loss of a limb would satisfy this type of injury as well, but better fits with dismemberment.
Fracture: This is the easiest and most common type of serious injury. A fracture is any type of broken bone that was not pre-existing at the time of the accident.
Loss of a fetus: Very rare but obviously catastrophic and easy to prove if it happens.
Permanent loss of use of a body organ, member, function or system;
Permanent consequential limitations of a body organ or member; and
Significant limitation of use of a body function or system:
These these types of serious injuries are usually plead together because they can all apply or one or more could apply. These limitations are also the most commonly plead and argued, especially for “soft tissue” injuries to the neck or back, as well as torn rotator cuffs, meniscus, knee ligaments, and other injuries that require a scope surgery or similar treatment.
Victims who have one of these types of injuries need to establish by objective evidence the damage. Objective damage means imaging studies like MRIs or other medically confirmable limitations such as doctor testing. Objective damage is not subject complaints of pain that cannot be objectively verified.
For a permanent injury in the first two categories, a victim must have a doctor testify to a reasonable degree of medical certainty is permanent and will not improve or minimally improve but not completely return to normal.
For a consequential limitation, the injury must be more than “slight” or inconvenient, but have a true impact on the victim.
For a consequential limitation or a significant limitation, generally having a range of motion restriction of 20% or more is enough to survive a motion for summary judgment. It is also generally enough to establish a serious injury in a bench trial, but sometimes not a jury trial.
90 out of 180 Day Limit: This is the last but also one of the most commonly plead types of serious injuries which is a catchall. This category requirements that a victim was prevented from performing his or her usual and customary daily activities for 90 out of the first 180 days following the Queens car accident. The injury is non-permanent but substantial. Ways to prove this is being on doctor’s restrictions for more than 90 days after an accident, including being unable to work, lift objects, drive a vehicle, or really do anything strenuous at home. This can also be established if a victim was given bed rest at home for this time period. However, not being able to work for 90 out of the first 180 days is usually not sufficient by itself. Usually something more is required such as other daily activities like being able to shower, put on clothing, and even walk the dog.
Were You Injured in a Motor Vehicle Wreck? Let us Determine What is a Serious Injury in a Queens Car Accident
Here at Cohen and Cohen Law Group, P.C., we work really hard for our clients. We dedicate our law firm to protecting their rights after another person, business, or government entity has violated those rights by causing needless and reckless injuries. If you or a loved one were seriously injured in a Queens car accident, our NYC personal injury lawyers offer a FREE consultation to help explain what your rights to compensation may be under New York law. Learn how we can help you by calling 800-247-8164 for a FREE case evaluation or use our convenient and easy-to-use contact us box available here.