It is a fact that today it is safer to fly in the U.S.A. than it is to drive.
According to the most recent New York State Department of Motor Vehicles Summary of Motor Vehicle Accidents statistics, of the 256,953 motor vehicle accidents reported annually to police, 168,938- or about 65 percent- involved a personal injury.
If you reside in New York, chances are that you will be involved in at least one serious auto accident during your adult life.
Based on my 33 years of experience in representing motor vehicle accident victims, I would expect that your collision will be either a rear-end, bumper-to-bumper, crash that happens while you are stopped at a red light or a T-bone crash where an oncoming vehicle fails to yield the right of way and attempts to turn left directly into your path resulting most often in their front end smashing in to your driver’s side door area.
While the facts and causes of any particular accident are unpredictable, the way you will be treated by both your insurance carrier and the liability insurance company for the party who hit you are not; the insurance company is not your friend.
The clock starts to run on your legal rights and duties even before the dust and smoke have cleared from the scene of your crash.
There are steps that you must take- things that you are legally required to do- and there are also steps that you should take- things that strengthen your position on the issues of liability and damages- to protect your rights later in the process. Of course nearly all of these steps have deadlines, and there are serious consequences for missing any of the drop dead dates, very few of which the insurance companies will ever inform you of.
- You must immediately report to police all auto accidents that result in personal injury or be in violation of state vehicle and traffic law that could result in either a misdemeanor conviction or, depending on the degree of serious physical injury, a felony.
- You must commence any suit for damages based on the negligent conduct of the other driver within three years of the date of the accident or be forever barred from doing so.
- You must report as soon as reasonably possible all accidents to your auto liability insurance carrier or run the risk of having them disclaim coverages and benefits for your failure to timely notify them of the happening of the event; it is part of your contract with your insurance company, the policy.
- You must fully complete and promptly return a no-fault claim form to your insurer within 30 days of any accident involving bodily injury or have your personal injury protection/no-fault benefits- including lost income payments -denied.
- You must put your insurer on written notice of any potential SUM/UM (supplementary underinsured motorist/ uninsured motorist) claim so that if the party that hit you either has no insurance or not enough insurance to pay the reasonable value of your claims you can fall back on your own policy coverages.
- You must complete and promptly submit an MV-104 form within 10 days of the date of the accident to the New York State Department of Motor Vehicles, and your failure to do so is a misdemeanor punishable by up to 1 year in prison.
- You must correctly communicate to all of your health care providers beginning with the ambulance service the name, address, and telephone number of your no-fault insurance carrier along with the claim number assigned to you so that your doctors, therapists, and imaging centers can get paid. They in turn must then forward their bills for all scheduled charges within forty five days of the date of service. If your doctors are not promptly paid by your insurer it is unlikely that they will want to continue to treat you, and you do not want anything to cause an interruption in your medical care that could delay your recovery by even one day. Gaps in treatment, even if explained, are readily pointed out by insurance adjusters as evidence of insignificant injuries. Their attitude is if the claimant is not taking their injuries seriously why would we.
- You should, of course, summon the police to the scene to complete a formal accident report even if it is not otherwise required, for example when property damage is less than $1,000.00.
- You should take photos at the scene and obtain the names and contact information from any witnesses discovered.
- You should, if permitted, speak with the investigating officers at the scene to inform them of your version of what occurred.
- You should, even if you have suffered what appear to be only minor injuries, immediately seek medical attention by requesting transportation by ambulance to the closest hospital. Insurance adjusters take great pleasure in pointing out whenever a claimant “refused ambulance at scene”. Their opinion is always that you could not possibly be injured if you chose not to get immediate medical care when it was offered.
The most important thing following an accident is for you to recover from your injuries and return to your usual state of good health.
The next most important thing is to document every step of your medical care in order to prove the causal connection between the collision and your injuries and ultimately the percentage of any permanency you are left with after all active treatment has been concluded.
Pre-existing injuries do not automatically make you ineligible for compensation for new injuries.
Very few people today reach their 30‘s and beyond without literally experiencing some knocks and bruises along the way, be it sports injuries, on the job mishaps, and of course, auto accidents.
Insurance carriers will carefully comb through your medical records going back years before the accident looking for any pre-existing condition or injury related to your current complaints. They hope to be able to argue that you had either the same or a similar problem before the accident with their insured and therefore they are not financially responsible for 100% of the injuries you are now claiming.
If you are under the care of a specialist and diligently treating you will be able to refute that argument with proof in the form of diagnostic tests like sophisticated imaging- Magnetic Resonance Imaging (MRI) is still the gold standard when it comes to diagnosing musculoskeletal injuries- and nerve testing- Electro-Magnetic Generator (EMG) findings can be proof positive of spinal cord involvement. While you may have had a similar injury or complaint in the past, an orthopedist or a neurosurgeon can distinguish your current
condition from your past condition and give expert opinion as to the percentage of exacerbation due directly to the most recent accident. Simply put, you are legally entitled to compensation for a reckless driver making a bad situation worse for you despite what the insurance companies tell you.
No Treatment Means No Case
New York’s insurance law requires objective medical proof of a “serious injury” in order to present any bodily injury claim from an auto accident for compensation.