TEN Things You Need to Know if You are Involved in a Car Accident in New York By James S. Lynch and Arthur V. Lynch

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1 TEN Things You Need to Know if You are Involved in a Car Accident in New York By James S. Lynch and Arthur V. Lynch

2 COPYRIGHT 2008 BY ACCIDENT BOOKS PUBLISHERS All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission of the author. Printed in the United States. This publication is intended to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the author is not rendering legal or other professional services to his readers. If legal advice or other expert assistance is required, seek the services of a competent professional. Persons using this publication in dealing with specific legal matters should exercise their own independent judgment and research original sources of authority and local court rules. The publisher and the author make no representations concerning the contents of this publication and disclaim any warranties of merchantability or of fitness for a particular purpose. We view the publication of this work as the beginning of the dialogue with our readers. Periodic revisions to it will give us the opportunity to incorporate your suggested changes. Call us at (800) or send your comments to: Lynch Law Firm, P.C. 222 Route 59 Suite 111 Suffern, NY

3 TEN Things You Need to Know if You are Involved in a Car Accident in New York 1. WHAT DO I DO AT THE ACCIDENT SCENE?... 1 If no one sees me, do I have to stop?... 1 Always Consider Safety First... 2 What information should I gather at the accident scene?... 3 Accident Scene Do s and Don ts... 5 Insurance Company Traps!!... 6 Your insurance company wants to prove that you were not injured! WHAT SHOULD I DO IF SOMEONE ELSE IS INJURED?... 8 How can I get help? WHAT SHOULD I DO IF I AM INJURED?... 9 Is there anything special I should keep in mind when seeing my doctors? AFTER AN ACCIDENT, NOTIFY YOUR INSURANCE COMPANY IF MY CAR IS DAMAGED WHAT RIGHTS DO I HAVE? WHO WILL PAY MY MEDICAL BILLS AND LOST WAGES? If I have a lawsuit, do I have to pay back No-Fault or my health carrier for the medical bills and lost wages it paid me? What if I am a pedestrian who is struck by a hit and run driver, do I still get No-Fault? If my insurance company requests that I see one of their doctors, do I have to go? CAN I MAKE A CLAIM FOR PERSONAL INJURY? How long do I have to make a claim? How can I see my medical records? WHAT SHOULD I DO IF THE OTHER DRIVER DOES NOT HAVE INSURANCE? Personal Injury Uninsured motorist coverage (UM)...18 Underinsured motorist coverage (UIM)...18 Property Damage WHAT IF SOMEONE SUES ME? I was just served with a lawsuit, what do I do? Will my insurance company settle the lawsuit against me? What if I get a traffic ticket? OUR CIVIL JUSTICE SYSTEM Why We Have a Tort System What Are "Litigation Costs"? Are There Too Many Lawsuits? Are There Too Few Lawsuits? Are Jury Awards Too High? Punitive Damages Choice of lawyers SPECIAL BONUS SECTION:

4 WHAT ASSISTANCE OR INSURANCE COVERAGE AM I ENTITLED TO IF I BECOME DISABLED? Private Group Disability Policies - ERISA Claims REAL LIFE EXAMPLE Settlement of ERISA cases Long Term Disability vs. Short Term Disability Policy Definitions Private Non ERISA Disability Insurance Plans Temporary (Short-term) Disability Insurance Social Security Disability Benefits HOW DO I CHOOSE A GOOD PERSONAL INJURY ATTORNEY? Know the Truth About Lawyer Advertising HOW DO I FIND A GOOD LAWYER IN MY AREA? WHAT SHOULD I LOOK FOR WHEN HIRING AN ATTORNEY? ABOUT THE AUTHORS VERDICTS AND SETTLEMENTS OF JAMES S. LYNCH ACCIDENT SCENE CHECKLIST NEW YORK NO-FAULT APPLICATION FORM MV FORM MV FORM MV FORM MV FORM MV MEDICAL RELEASE FORM MEDICAL RELEASE FORM

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7 TEN Things you Need to Know if you are Involved in a Car Accident in New York 1. What do I do at the Accident Scene? If no one sees me, do I have to stop? Yes. New York law says you must, you must stop and exchange information with the involved drivers. If the accident caused property damage only, then exchange information about your driver license, insurance, and registration with the involved drivers. If a parked vehicle or other property is damaged, or if a domestic animal is injured, you must locate the owner or contact the police. If the property damage of any person is $1,001 or more, all the involved drivers must file form MV-104 (Report of Motor Vehicle Accident). You must file form MV-104 with the Department of Motor Vehicles no more than 10 days after the accident. If you fail to report an accident, the DMV can suspend your driver license. Tip: A fill in the blank form MV-104 form is available on the New York State Department of Motor Vehicles website, specifically at A copy of the form is reprinted at the end of this book. If a person is injured or killed, immediately notify the police. All the involved drivers and the police must file an accident report with the DMV. It is a crime to leave the scene of an accident that causes personal injury or death. The accident appears on the records of all the involved drivers. An accident listed on your driver record does not indicate that you were at fault. The DMV does not try to determine fault in an accident. 1

8 Tip: Although the DMV records all accidents, this does not mean your insurance will go up as a result of an accident. Your insurance will rise only if you have an atfault accident. As such, what the police record at the scene can be very important in the later determination as to whether you were involved in an atfault accident. Always Consider Safety First Important Tips: Drivers involved in minor accidents with no serious injuries should move cars to the side of the road and out of the way of oncoming traffic. Leaving cars parked in the middle of the road or a busy intersection can result in additional accidents and injuries. If a car cannot be moved, drivers and passengers should remain in the car with seatbelts fastened for everyone's safety until help arrives. Try to stay calm. Make sure to turn on hazard lights and set out cones, flares or warning triangles, if possible, starting at 50 feet behind your vehicle (don t use flares near leaking auto fluids). If your hazard lights are not working, consider tying something white or light colored to the antenna of your vehicle or raising the hood of your vehicle. Do not get out of your vehicle if the area you are in appears unsafe. 2

9 Keep an Emergency Kit in you glove compartment or trunk You should have the following things in your car at all times: a cell phone, pen and paper for taking notes a disposable camera to take photos of the vehicles at the scene a card with information about medical allergies or conditions that may require special attention if there are serious injuries a list of contact numbers for law enforcement agencies a set of cones, warning triangles or emergency flares should be kept in the trunk. What information should I gather at the accident scene? Since many records are now confidential under the law, you may not be able to obtain the information about the other driver from the New York Department of Motor Vehicles. So, be sure to get as much correct and complete information as you can at the scene of the accident. You and the other driver should show each other your driver's licenses and vehicle registrations. Also, you should record: 1. The other driver's name, address, date of birth, telephone number, driver's license number and expiration date, and insurance company. 2. The other car's make, year, model, license plate number, and vehicle identification number. 3. The names, addresses, telephone numbers and insurance companies of the other car's legal and registered owners if the driver does not own the car. 4. The names, addresses, dates of birth, driver's license numbers and telephone numbers of any passengers in the other car. 3

10 5. The names, addresses and telephone numbers of any witnesses to the accident. Ask them to stay to talk to the police. If they insist on leaving, ask them to tell you what they saw and write everything down. 6. Try to identify people at the accident scene, even if they will not give their names. For example, if someone who saw the accident drives off, take down his or her license plate number. Law enforcement officials can trace the owner's name and address. 7. The name and badge number of the police officer who comes to the accident scene. Ask the officer where and when you can get a copy of any accident report. 8. A simple diagram of the accident. Draw the positions of both cars before, during and after the accident. If there are skid marks on the road, pace them off. Draw them on the diagram, noting the distance they cover. Mark the positions of any crosswalks, stop signs, traffic lights or streetlights. However, do not place yourself in a position of danger in order to complete an accident diagram. Be aware of traffic conditions and skip any measurements that could place you in a position of harm. Make notes, too, on weather and road conditions. If the accident happened after dark, note whether the streetlights were on. Estimate your speed and that of the other vehicle. Be sure to record the exact time, date and place the accident happened. At the end of this book, we have included a fill-in-the blank checklist that includes all of the information that you should collect at the scene. Just make a photocopy of it and keep it in your glove box. A picture is worth a thousand words If there is debris or skid marks from the accident, think about returning and taking photos. Take pictures of your vehicle to establish the extent of damage and points of impact If you have bruising or other observable injuries; document them with photographs. 4

11 Accident Scene Do s and Don ts Do Not engage in an argument with the other driver. In the heat of the moment you may say something that is inaccurate which can be used against you in the future. Do tell the police your version of what occurred, as simply as possible. Be courteous to all police officers. You may need them to testify in court on your behalf for your property damage or injury claim. You want them to remember you kindly. Do Not accept fault for the accident. One or both drivers may be at fault. Quite often, your initial thought might be: If I was paying closer attention, this accident may not have happened. Remember: The other driver may be thinking the same thing. Do Not accept monetary compensation at the accident scene or sign any type of release. At an accident scene you are under extreme stress. Cool off, think about things, fully assess your damages, then you will be in a fair position to negotiate. 5

12 Watch Out For: Insurance Company Traps!! Trap 1. Immediate Response Teams Sometimes insurance companies send investigators to the scene. These people are not your friends. Their interests are adverse to yours. As always, be courteous; however, do not discuss any aspect of the accident or your injuries with the other driver's insurance company representative. Tip: No matter what that the other driver s insurance investigator tells you, you are not obligated to be interviewed. Trap 2: Your own insurance company may want to prove the accident was your fault! Hopefully you have purchased uninsured or underinsured motorist coverage for any accident. (Meaning that if the other driver is uninsured or underinsured, your insurance company will take his place and pay your claim). This means, however, if the other driver is uninsured or underinsured, your insurance company has the same interests as the driver that struck your car in proving that: (1) the accident was your fault; and (2) you suffered no property damage or injury as a result of the accident! Be careful what you say or write to your own insurance company. If you leave something out or describe something wrong, they will use it against you. 6

13 Underinsured/Uninsured Motorist Coverage may be the most important coverage you have on your automobile policy. Many consumers do not even know what it is! We have co-authored a book entitled The 10 Commandments for Buying Insurance: An Insider s Guide to Auto, Home and Life. We feel that educating consumers on these issues is important. We would be happy to share this book with you for free. Please visit for details. Trap 3: Your insurance company wants to prove that you were not injured! Under New Jersey law, if you are injured in a car accident, your own car insurance company will likely being paying your medical bills and your lost wages, no matter who is at fault for the accident. (See section 6 below entitled Who will Pay My Medical Bills? ). However, your insurance company does not want to pay those bills. As such, if there is a way to avoid paying those bills, your insurance company will find it. This includes: arguing you are not hurt, sending you to frequent medical exams with a doctor of their choosing (who has an interest in saying you need no further treatment), arguing your painful injuries are not from your car accident, but are simply the result of aches and pains associated with the aging process and denying your claim)!! HOWEVER -- Do not refuse to cooperate with your insurance company. Under the terms of your insurance policy, you are required to cooperate with them in investigating the claim or they will disclaim coverage. This may mean giving them various information, including a statement. In light of the above, however, it is prudent to seek the advice of legal counsel prior to making any statements or submitting any documents to any insurance company. 7

14 2. What should I do if someone else is injured? The law requires you to give reasonable assistance to injured persons. For example, you may need to call an ambulance, take an injured person to a doctor or hospital, or give first aid. (If charged with leaving the scene, it is not a defense that you did not know someone was injured. As long as you knew there was an accident, you have an obligation to determine if there were injuries, and to assist those who are injured). (N.J.S.A. 39:4-129(c)) If you are not trained in the appropriate first aid procedures, do not move someone who is badly hurt; you might cause further injury. However, you should move someone who is in danger of being injured further or killed (for example, in a car fire) even if you do worsen the injury. To help prevent additional collisions, try to warn other motorists that an accident has occurred. To warn other motorists, you can place flares on the road (only if there are no flammable fluids or items nearby), turn on your car's hazard lights or lift your engine hood. Arrange to get help for any injured persons, and try not to panic. How can I get help? As soon as you can get to a telephone, call 911. Dialing 911 will get you both the police and an ambulance. Explain the situation and give the exact location of the accident, so that help can arrive quickly. Be sure to mention whether you need an ambulance or a fire engine. Remain on the telephone until the operator tells you it is okay to hang up. If you have no cell phone, flag down a passing car and ask the driver for assistance. The driver may have a cellular phone in the car and can make an emergency call on the spot. If not, perhaps that driver can find a police officer or someone with a cell phone. 8

15 3. What Should I Do if I am Injured? Get your injuries cared for immediately at the emergency room in a local hospital or at your personal physician's office. Tell the examining doctor every complaint and injury you have, no matter how minor you may think it is. A serious internal injury may not be evident immediately. Help your doctor help you. It is very likely that there will be medical coverage for your medical bills under the Personal Injury Protection (PIP) portion of one of the vehicles involved in the accident. See the Chapter 6 below entitled Who will Pay my Medical Bills? Is there anything special I should keep in mind when seeing my doctors? When reporting to doctors, take extra care to identify specific complaints; take with you a list of all complaints and tell the complete truth. If something does not feel "right," your doctor needs to have this information in order to render an informed medical opinion. Even though you feel it is "no big thing" now, a dry mouth, a light headache or a little dizziness, may be evidence of something more serious. If you have banged your head, make sure the doctors know about it. Anything that is out of the ordinary is a symptom and should be reported to assist your doctor in making an informed diagnosis. For example, an accident victim who has slight tingling in the fourth and fifth fingers and neck pain, may not report the tingling sensation, which could be the sign of major disruption to a cervical disc. If that disc becomes a complete rupture that requires major surgery it will have been far better to have had the initial medical entry. This will help show that the onset of the injury was the accident, and not picking up a bag of groceries three weeks later, as the insurance company doctor will argue to the jury. 9

16 Keep receipts of everything and maintain a calendar of post-accident events that will help you recall the days you could not work, were unable to enjoy your leisure time or had to spend a Saturday at the physical therapist. No matter whether it is a personal injury claim or any action in which you are the plaintiff, keep a fully detailed record of the harm you suffered. 10

17 4. After an Accident, Notify Your Insurance Company As soon as you have taken care of everything at the scene of the accident, notify your insurance agent. Most agents will accept first notification of an accident on their voice mail after hours. However, written notice (a letter or fax) is generally the most reliable way to notify your insurer. If you fail to timely advise your insurance company about an accident they may disclaim coverage if a claim is later made against you for property damage or personal injury. There are certain forms, such as a No Fault Application for Benefits that need to be submitted to your insurance carrier within a short period of time. In New York, the time limit is thirty (30) days. If you fail to timely submit these forms, your insurance company may refuse to pay your medical bills and lost wages. We have annexed a copy of the standard form No Fault Application for Benefits application at the end of this book. You may also obtain a copy of this form on our website which is listed in the footer below. Tip: Immediately advise your insurance company as soon as possible about date, time, place of accident. If you feel any injury, tell them you were injured. Say nothing further. Advise them that your attorney will discuss the matter further with them. Call an attorney who is experienced in personal injury/property damage/insurance matters. Please read the section below on How to Choose an Attorney. 11

18 5. If my Car is Damaged what Rights do I have? If you have Collision Coverage on your auto policy, then, regardless of fault, your own insurance company will pay for the damage to your vehicle, less any deductible. Further, if the accident was not your fault, your automobile insurance carrier will make a claim against the other driver through an arbitration process to obtain the money it paid you for the damage to your car. In that proceeding, they will seek full reimbursement, including your deductible. If they recover your deductible, they will pay it back to you. If you do not have Collision Coverage, or you simply do not want a make a claim under your own policy, you can make a claim directly with the defendant's insurance company for your property damage and any reasonable amount you pay for a rental car due to the loss of use of your vehicle. The defendant's insurance company has a duty to negotiate with you in good faith. However, if they have difficulty getting in touch with their insured or their insured gives a version of the accident that provides them with a defense to your claim, they may: (1) delay in making you any offer until their investigation is complete and (2) they may offer you only a small percentage of your total claim. If you are dissatisfied with the offer that the defendant's insurance company makes you, you are not obligated to accept it. If you feel they are not negotiating in good faith, you can make a complaint to the insurance department. However, that is not likely to get you anywhere. Depending on the size of your property damage claims, you can sue in the various courts in New York, including, Small Claims Court, Civil Court of the City of NY; and Supreme Court. Tip: If your property damage claim is $3,000 or less, you can bring your claim in Small Claims Court and probably do not need an attorney. The procedures are made for people with little or no legal experience. You can obtain all of the forms for free on the New York Judiciary website, which is: You will also find a link to these forms on our website, 12

19 6. Who will Pay my Medical Bills and Lost Wages? In most cases, you have the right to have your medical bills paid and your wage losses reimbursed, subject to the policy limits provided on the automobile insurance policy that will be paying your No-Fault benefits. These payments come from the No-Fault Coverage of the car insurance of the vehicle you were in at the time of the accident. If you are a pedestrian and are hit by a car, the insurance of the car that struck you will pay your bills. You receive this coverage whether or not you were fault for an accident, and regardless of whether you were a driver passenger or pedestrian. Further, if you or a family member in your household has car insurance, you may have additional coverage under your or their policy. It is important to check the coverages on all of these insurance policies. The standard New York limit of No-Fault coverage is $50,000. This includes all payments for medical bills and lost wages. If you cannot work, the standard policy will pay you 80% of your lost wages up to $2,000 per month. You can only receive lost wages benefits for three years. When purchasing automobile insurance in New York State, you may choose to increase your No-Fault coverage for a nominal additional premium. As a matter of law, car insurers must offer Optional Basic Economic Loss (OBEL) coverage. If purchased, this additional coverage elevates the required $50,000 of basic economic loss coverage by an additional $25,000. When the basic limit of $50,000 has been reached on a claim, this $25,000 can be designated by the injured person to be applied specifically to payments for wage loss, for medical bills, or to all economic losses. Tip: The $50,000 standard limit will be depleted in only a day or two if you suffer injuries that require critical care. Your private health insurance will cover you, subject to co-pays and deductibles after the $50,000 is exhausted. However, the health insurance carrier will not pay your lost wages. We strongly recommend that you raise your No-Fault coverage to at least $175,000. If your insurance company will not cover you at this level, change insurers. 13

20 If I have a lawsuit, do I have to pay back No-Fault or my health carrier for the medical bills and lost wages it paid me? You do not have to pay back No-Fault. However, if your health insurance was issued through your employer, it is likely an ERISA based policy. If so, and if you present a claim for injuries against the party that caused your accident, your health carrier will have a lien on your claim for any amounts they paid for your bills. In fact, a health carrier with a valid lien will get paid before you do. In contrast, any bills paid through the No Fault potion of a car insurance policy will not create a lien on your claim. Does everyone get No-Fault coverage? No. No-Fault covers most, but not all situations. In general, No-Fault will cover anyone who is injured in a car, bus, or truck accident. However, No- Fault coverage will not pay for medical bill or lost wages to the following people: A person who intentionally causes an accident and in the process injures himself; A person who, as a result of her ingestion of drugs or alcohol, causes an accident and in the process injures himself; Any person who is injured while either operating or a passenger on a motorcycle; A person driving an uninsured vehicle. What if I am a pedestrian who is struck by a hit and run driver, do I still get No-Fault? Yes. The Motor Vehicle Accident Indemnity Corporation is a New York State agency that will pay your medical bills and wages if you have no insurance of your own and are struck an uninsured vehicle or by a hit and run driver. There are very specific requirements and very short time limits for making a claim with MVAIC. If you believe you may have a claim with MVAIC, you should consult a lawyer immediately. A link to the required MVAIC forms is available on our firm s web site. 14

21 If my insurance company requests that I see one of their doctors, do I have to go? Yes. We call this a Defense Medical Examination (DME). You have no say in selecting the doctor. The doctor is working for the insurance company and being paid by the insurance company. The purpose of the exam is not to help you get better. Most importantly, this insurance company doctor will very likely disagree with your treating doctor. The law and your insurance policy require you to cooperate with the insurance company that is paying your medical bills. This means if you refuse to go to the exam, the insurance company will be allowed to cut off your benefits. Unfortunately, even if you go to the exam, the doctor is likely to say what the insurance company wants to hear, and you'll probably be cut off anyway. As you can see, this is a very important time in your medical care. Due to the complicated insurance structure and New York, it is suggested that you retain an attorney who is experienced in handling personal injury/insurance claims to help you deal with your lost wage claim and your medical claims. 15

22 7. Can I Make a Claim for Personal Injury? In addition to payment of medical bills and lost wages, you may be eligible to receive payment for pain, disability and loss of enjoyment of life. When you are hurt in a car accident, you have lost something: your health, your ability to do the things you enjoy, income, time with your family and friends, etc. The money you receive for your losses isn't a prize or a gift. It's compensation for something you have lost. You are not coming out "ahead" and you're not taking advantage of the system. Our state and federal constitutions make it a fundamental right for citizens to recover their losses. What you are going through is real. And, you are entitled to make a claim if you decide it's in your best interest to do so. The nature and extent of your injury may bear on whether you can make a claim. If you are eligible to receive No-Fault benefits, you are eligible to receive payment for pain, disability and loss of enjoyment of life only if have sustained an injury that the New York legislature and Courts have defined as serious. Injuries such as death, fractures, severe scarring, loss of motion, and disabling injuries will qualify. If you are disabled for a few months you may qualify, or if you have some type of permanent problem resulting from an accident, you may qualify. The nature and extent of an injury and how it affects an individual is difficult to quantify. Every case is different as is every injury. Information about the severity of your injuries usually comes from your doctor in a medical report in which he or she comments on your injuries. Doctors often wait at least a year after the accident to issue a final medical report. Another important factor is how your injuries affect you. For example, a broken finger to most people is not that severe an injury. If you happen to be a concert pianist, however, a broken finger can be a terrible loss. Thus, if considering such a claim, it is important that your attorney know a lot about you and how your injuries have impacted your life. Other factors include the amount of your medical bills, the amount of your wage loss, whether you have any scars, what impact your injuries will have on your future earning capacity and a host of other issues. 16

23 How long do I have to make a claim? In New York, the statute of limitation for bringing a lawsuit for injuries that result from a car accident is three (3) years from the date of the accident. However, if a municipality is involved, meaning that the accident was caused by a roadway defect, a traffic light out or a missing stop sign, you have only ninety (90) days to notify the municipality that you intend to make a claim against it. If you fail to meet these time limits, your claim may be barred. Anyone who has ever been involved in the legal system will tell you that your choice of lawyer can mean the difference between success and frustration. Every personal injury case is different and it depends on the skill and experience of your lawyer to know what is fair compensation for your losses. You need an attorney who the insurance companies respect and know has a track record of success. See the section below about How to Choose an Attorney. How can I see my medical records? Both the Federal HIPPA Privacy Rule and New York law give you rights to see your medical records. Under New York law, your doctor or a hospital allow you to see your medical record with ten (10) days of your written request. Federal law requires that you be given a copy of your medical record within thirty (30) days of your request. The medical provider can ask that you put your request in writing. Your medical provider can also charge you a reasonable fee for a copy of your records. The New York Public Health Law prevents a physician or hospital from charging you more than 75 cents per page for your records Also, you are entitled to copies of x-ray, MRI s or other tests. If you request a copy of your films, the doctor or facility can charge a reasonable fee copying them. At the end of this book, we have annexed a form that you can give to your medical provider to get a copy of your medical records. This form is also available for download on our website. Please note, however, that some medical providers may have their own form that they would like you to use. 17

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