In the course of your driving career, statistically, even the most prudent driver will be involved in a motor vehicle accident.

Once you become involved in an accident and your vehicle or person are injured your status changes. You are now a plaintiff, the offending vehicle is now the defendant.

Unfortunately, in only the rarest of occasions will the defendant admit guilt.

So what does one do if you are involved in an accident?

How do you prove that you are the plaintiff and the other party is the defendant.

Many accidents by the nature of how they occur prove who is at fault. An example would be if you are stopped at a red light and you are hit in the rear. The reason I use the example of stopped at a red light is if you are struck in the rear while driving, the defendant will try to claim that you changed into his lane and stopped short.

A defendant can go through a red light and claim it was you who went through the red light. How does one go about proving that he is in the right?

Installing a dashboard camera before an accident occurs is the best way in preserving the truth of what really happened. Videos are unbiased and show how the event occurred.

If you don’t have dashboard camera, the next best thing are witnesses. If there is a witness to the accident, take down their name and cell number. The witness can be a passerby or another driver.

Today there is a plethora of door cams and video footage maintained by both private and government agencies. Obtaining this footage which supports your version of events is invaluable.

If you are involved in an accident and are able, take photos of both vehicles and the accident site. Take as many pictures as you can from every possible angle. Do not move your vehicle until after you take the photos. You want the photos to depict where the contact occurred, which lane each vehicle was in at the time of the accident, which direction each vehicle was heading in and were there any traffic control devices. If you move your vehicle, the other party might change their story. A picture is worth a thousand words.

In our days, the NYPD does not come to the scene of an accident unless there is an injury. If you feel that you are injured then call the police.

If you are injured, have EMS take you to the hospital, do not assume the pain will go away. Do not leave the scene and call 911 from your home. Leaving the scene makes it look like you were not injured.
Tell the ambulance personal how you feel. Detail each and every injury no matter how minor it feels. This establishes a record of your injuries.

At the hospital detail to the hospital personnel every injury that you have, do not leave any injury however minor out of your description.

In New York State, the hospital bill and doctor bills will be paid under No-Fault. This will be elaborated upon in the No Fault portion of this website.

If you have suffered a serious injury and are admitted to the hospital, if any part of your body is in pain or injured even that for which you were not admitted for, bring it up with the hospital personnel.

If you are discharged from the hospital and the pain goes away, then consider yourself lucky. If the pain persists or gets worse call your doctor.

Many a time after an accident the shock and adrenaline will mask many injures that you have. Some times it takes a few hours, days or even weeks for injuries to be felt. If you are injured it is imperative that you see a doctor as soon as possible. The longer it takes for you to go to your first appointment means in many a case a lower recovery.

All medical bills arising out of a motor vehicle accident are paid by No-Fault.

No Fault

In NYS medical bills incurred as a result of an automobile accident are paid by No-Fault Insurance. No-Fault is a part of your own personal car insurance policy. It was created for the sole purpose of making sure that medical bills that arise from a car accident are paid no matter who is at fault. No-Fault is generally paid by your automobile policy. If you are a pedestrian and struck by a vehicle, No-Fault is paid by the offending vehicle’s insurance company. If you are a passenger in another persons vehicle, No Fault is paid by the insurance carrier in which you were a passenger in. There are exceptions in which your policy will become primary or take over after the first vehicles insurance is exhausted. Your rates are not affected by a no-fault claim.

A person involved in a motor vehicle accident is required to inform their insurance carrier of the accident. If you are injured in a motor vehicle accident, it is best to speak to an attorney before you speak to your insurance company. Unfortunately, your own insurance company is not your friend.

Your EMS, hospital, doctor and all medical related bills are paid by No-Fault. As at the time of your hospitalization your no-fault file has not been opened as of yet. Once you receive your No-Fault claim number you have to inform the hospital and all providers that treated you prior to your obtaining your no-fault claim number of the No-fault claim number, otherwise they will bill your primary insurance company which will disclaim, leaving you on the hook for the bills.

If you are disabled and unable to work, No-Fault will pay a portion of your wages if your wages are documented and your doctor determines that it is medically necessary for you not to work during your convalescence.

Once you inform your insurance company of the accident, the insurance company will send you a No-Fault form. You have thirty days from the date of the accident to submit your No-Fault form.

The insurance company will set up a No-Fault exam. The average time for them to set up an exam is about eight to ten weeks after the accident. Though they are called Independent Medical Exams, that is a misnomer. Most of the time, the doctor assigned by the insurance company will find that you have recovered and your medical benefits will be terminated. As treatment to pierce the threshold in NYS is three months, this can cause an issue with the validity of the case. Threshold will be discussed in the threshold section.

If the No-Fault IME determines that you are no longer eligible for No-Fault benefits, if you have medical insurance, you can continue receiving medical benefits under your medical insurance. If you do not have health insurance, many a time a physician and therapist will treat you and arbitrate the bills against the no-fault carrier. Some medical personal may treat you on a medical lien. Their fee will be paid upon the conclusion of your case.

LIABILITY AND DAMAGES

Injuries stemming from a car accident range from minor whiplash to serious injuries or even death.

There are two portions to a car accident case, liability and damages.

Liability, is who is at fault for the happening of the accident Many a time there is comparative fault, in which both parties share liability for the accident.

Damage are the injuries that you have suffered as a result of the accident.

It is critical to document the damage if any to your vehicle. The more damage to your vehicle the more credible is your claim for any injuries that you claim you sustained from your accident.

Witnesses and video footage of how the accident happened are critical to establishing liability in the case.

Generally there are three insurance adjusters assigned to your accident case.

The first is a No-Fault adjuster which is assigned by your carrier and deals with your No-Fault claims.
The second is a property damage adjuster that will deal with property damage to your vehicle.
The third is a bodily injury adjuster that will deal with the injuries you stained and determine how much if any the adverse carrier will pay for the injuries you sustained as a result if their client’s negligence.

Depending on liability of the parties, the seriousness of your injury will determine the monetary recovery you receive. A major factor in car accidents is the coverage that is carried by the offending vehicle. You can have a million dollar case but if the offending vehicle has only a $25,000.00 policy in most instances that is the amount you will receive. Many a time if you own a vehicle and have larger SUM coverage you will be able to pursue a claim against your own carrier.

If you are injured in an accident contact an attorney as he can best guide you through this difficult process.

UNINSURED MOTORIST – Supplemental uninsured motorist

In NYS all automobile insurance policies carry UM/SUM coverage. The coverage is generally the same as your liability coverage unless you opted out for lower coverage.

If you or your vehicle are struck by an uninsured vehicle then you can sue your own insurance company under the UM portion of your policy.

If you or your vehicle are struck by a person carrying minimal or lower policy limits then your SUM coverage, if your injuries warrant you can receive the policy of the offending vehicle and sue your own company for your additional coverage.

Suing your own company for UM or SUM coverage does not raise your insurance rates.

Your carrier must be put on notice once you learn that the offending vehicle has no insurance or has less insurance than your SUM policy.

In all likelihood your carrier will want to take a statement from you and do a physical exam.

If the case can not be settled then you need to make a demand for arbitration with the AAA.

It is highly advisable that you obtain an attorney to help you through this complicated process.

Do My Insurance Rates Go Up

The question that I hear all the time from my clients is, will my insurance rates go up. The answer depends on how the insurance carrier apportions the fault in the accident. If you were not at fault for the accident and your insurance company assess 100% liability against the defendant your insurance rates will not go up. Using No-Fault which is paid by your insurance company does not cause your rates to rise.

The process

No two car accidents are the same. Retaining proper counsel can ease your burden so you can concentrate on your recovery. From handling the No-Fault to having your vehicle repaired to insuring that you get proper treatment are the just the beginning of the process.

If you hire an attorney they will have an interview with you to obtain all the facts about your case. No-Fault forms will be filled out and medical records will be ordered. Generally a law suit will not be started until you have finished treating. Depending on the injury, many attorneys attempt to settle the case with the insurance company. Some cases require that the case be put in suit before ant settlement negotiations can be had.

An action unless it is against the New York City, Municipality or a Governmental Agency is initiated with the filing of a summons and complaint. The defendant will answer with numerous demands. Your attorney will respond and make his own demands. A PC will be requested in which the parties will demand insurance information to be provided and numerous discovery from each side. Deposition dates for both sides will be scheduled. A Compliance Conference date will also be scheduled as will be a Note of Issue, which is the date the case will be certified ready to be placed on the trial calendar. The time frame for when your case is put in suit until a trial varies on the complexities of the case and the borough the suit is brought in. Each case has its own unique set of facts which help determine when and if it will be tried. More that 99% of my cases are settled without a trial..

Notice of Claim

A Notice of Claim is a creature of Statute made by the New York State Legislature with the intent of protecting Municipalities and Governmental Agencies.

To accomplish this goal, the statue requires that when pursuing an action against a Municipality or Governmental Agency, a written Notice of Claim must be filed with the Municipality or Governmental agency within ninety days of the occurrence of the action.

A Notice of Claim is a fairly simple document. It states your name, address, the date and time and place of the accident and the claimed negligence committed by the Municipality
or Governmental Agency.

The procedures for a Notice of Claim must be strictly adhered to. Failure to file a Notice of Claim within the 90 day filing period will result in the dismissal of your claim. If the ninety days have passed and you have not made filed a Notice of Claim, there are exceptions which can be raised in a motion to the Court to allow the acceptance of the Notice of Claim. An experienced attorney can guide you on when and how you can file such a motion.

WRONGFUL DEATH OR THE DEATH OF THE PLAINTIFF

There are instances that as a result of the car accident the plaintiff dies. In other instances the plaintiff does not die immediately from the injuries sustained in the car accident, but subsequently dies from the injuries sustained in the car accident or dies from unrelated causes. In such a case an administrator must be appointed by the Surrogates Court to proceed with the case. Generally a family member is appointed to become the administrator to proceed with the sole purpose of prosecuting the action. This process is usually done either by a probate attorney or your personal injury attorney.

The personal injury action continues and the caption of the lawsuit will reflect that the case is being pursued by the administrator of the estate of the decedent. The case will proceed and either will be settled or goes to trial. Once there is either a settlement or a verdict, the administrator will have to submit a series of documents and the settlement or verdict will need to be approved by the Surrogate Court. If there are numerous heirs, the parties can agree in advance to their percentages or ask the Court to determine the amounts that each eligible heir will receive.

Lost Wages

Many a time you as the injured plaintiff can not work, how are you going to support yourself?

In New York State, No-Fault will reimburse a portion of your lost earnings. This coverage applies if you were the driver, passenger or a pedestrian struck by a motor vehicle.

If you have a general insurance policy, No-Fault benefits cover a maximum of $2,000 per month, or, 80% of your lost earnings. New York State Disability, through your employer, will contribute the additional 20% of your lost earnings. This assistance lasts up to a maximum of three years from the date of the accident.

If you are employed, you can file with New York State Disability, through your employer and they will contribute the additional 20% of your lost earnings.

This process is very time sensitive and requires a great deal of knowledge and attention.. You have only 30 days following the date of the accident to file the No-Fault paperwork. Hiring an attorney to guide you through this maze of paperwork is highly recommended.

Your attorney may advise you to apply for social security disability. Your lawyer will recommend an attorney who is well versed in this area of law to help you with this process.

What TO DO IF YOU ARE IN A CAR ACCIDENT