Serious Injury Threshold
A Short Introduction to the Serious Injury Threshold in New York’s No Fault Insurance Law
New York enacted its no-fault insurance law to ensure that people involved in car accidents would receive compensation within a reasonable time. Prior to the no-fault insurance law, courts were overwhelmed with vehicle injury claims. As a result, many victims’ damage awards were extremely delayed. The Insurance Law addresses this problem.
The Insurance Law requires motor vehicle operators to carry insurance. It also requires those insurance policies to contain certain terms, insure certain people, and cover claims up to a certain limit. Additionally, the insurance law requires insurance policies to cover basic economic losses regardless of who was at fault in certain accidents (with some exceptions). This is known as “no-fault” insurance. It allows accident victims to receive their compensation from their insurance policies, without having to go through the courts.
The amount a victim may be awarded by no-fault insurance is limited. Insurance usually covers medical expenses and lost earnings up to $50,000. Damages beyond this amount, and noneconomic damages, will not be awarded under the no-fault insurance law.
Obviously, however, some accident victims suffer damages beyond this amount. Victims who miss very long periods of work may lose more than $50,000 in earnings. And victims that suffer serious injuries may want compensation for pain and suffering. The law is responsive to these situations, but it does not require insurance policies to provide the compensation. Instead, the insurance law allows victims that suffer “serious injuries” to sue the person at fault in the accident.
“Serious injury” is defined in section 5102 of New York’s Insurance Law:
(d) “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.
Some of these terms may seem rather vague. How much disfigurement is “significant”? How much limitation of the use of a bodily organ or member is “consequential”? Courts agree that these terms are not completely clear, which is why they leave it up to juries – after detailed jury instructions – to decide whether a particular injury is “serious” enough to warrant an award beyond what is provided by the insurance law.
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If you have questions about this or other legal issues, and would like to schedule a free consultation with an attorney at the Law Firm of Vaughn, Weber & Prakope, PLLC, please call 516-858-2620.
Understanding an Inquest
Understanding an Inquest
An inquest is a hearing in which a court evaluates a party’s claims for damages when another party “defaults”. Defaults occur in some areas of law more than others. They can be very common in landlord-tenant and and consumer debt cases.
When someone fails to attend a court date, and cannot give the Court a good reason for the absence, the Court may enter a “default” judgment against that person. The default judgement will mean that, as far as the court is concerned, the person is liable of whatever the other party has alleged.
However, whether a person has caused harm to another, and how much harm a person has caused, are two different issues. For example, assume a plaintiff sues a defendant for damaging a car. The defendant may admit to damaging the car, but may dispute the dollar value the plaintiff assigns to the damage. Perhaps the defendant claims that the car was already damaged in a previous accident. The defendant may argue that the plaintiff is attempting to collect money to cover damages resulting from the previous accident – damages that the defendant didn’t cause. Although the defendant caused some damage to the plaintiff’s car, it would be unfair to hold the defendant liable for more damages than the defendant actually caused. The inquest addresses this issue.
Once a default judgement is entered against a defendant, it is as if the defendant has admitted to causing the harm. But the court will still want to make sure that the defendant is not paying more in damages than the defendant caused. At an inquest, the court will require the plaintiff to provide testimony, affidavits, or other evidence, that will prove how much harm the defendant actually caused. Additionally, the defendant may cross-examine witnesses at the inquest, and may even offer evidence – as long as that evidence is confined to the issue of damages, not liability.
In a landlord-tenant case, it is certainly possible for a landlord to ask for more money than the tenant actually owes in arrears. In this context, a court will want to see some proof that the tenant actually owes the amount of rent the landlord claims. Similarly, a creditor could ask for a higher amount of money than the debtor owes. Perhaps the debtor made payments that have not been credited to the account. Or, the creditor may have charged fees or interest rates that exceed those included in the contract terms. In each of these situations, parties will be able to raise these issues at an inquest, even though a default judgement has been entered against them.
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If you have any questions about this issue, or other legal questions, the Law Firm of Vaughn, Weber & Prakope, PLLC is here to help. Call (516) 858-2620 to schedule a free consultation.
Separate Property in Divorce
Not ALL Property is Divided between Spouses in a Divorce: Separate Property Remains with the Spouse.
When a couple divorces, the couple’s marital property is subject to equitable distribution. This means the property is divided between spouses according to certain legal principles. But not all of a spouse’s property is considered “marital property.” Some assets may be considered “separate property.” Separate property is not subject to equitable distribution, and therefore may remain with one spouse after a divorce.
The terms “marital property” and “separate property” are defined by New York’s Domestic Relations Law:
The term “marital property” shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined.
The term separate property shall mean:
(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
(2) compensation for personal injuries;
(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;
(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part.
As a general rule, it appears that property obtained prior to a marriage, or through non-marital sources, remains separate, whereas property that is acquired during the marriage is marital property, subject to equitable distribution. But as with most areas of the law, there are exceptions. If a spouse “co-mingles” property that would otherwise be considered “separate” with “marital property,” it may be deemed marital property subject to equitable distribution. On the other hand, property that is acquired in exchange for “separate property” may be deemed “separate,” even if acquired during the marriage. Property acquired after a separation agreement or divorce proceeding is generally considered separate. Finally, prenuptial or separation agreements in which spouses agree to treat separate property as marital property are generally enforceable.
If you have questions about this or other legal matters, the Law Firm of Vaughn, Weber & Prakope, PLLC would like to assist you. Please call (516) 858-2620 to set up a free consultation with an experienced matrimonial attorney.
Deposition Preparation
Depositions are part of the discovery process, which takes place during the pretrial portion of a lawsuit. Discovery occurs after the case has been filed and officially begun with the court, but before the trial.
The purpose of the discovery process is to expose all the facts the parties will be relying on to make their case. Exposing the facts in this way encourages settlement, which in turn lightens courts’ administrative burden. Facts may be established by documents, photographs, audio or video recordings, or other sources. Any party to a lawsuit can request any sources or documents that may be relevant to the lawsuit from the opposing counsel. With a few exceptions, each party is obligated to provide any documents or sources that are requested.
Often parties will not be able to rely on documents or recordings to establish facts. Instead, they may have to use witness testimony to support their claims. This evidence is subject to discovery as well. Just as a party may inspect the documents and recordings the opposing party will be relying on, a party may “preview” witness testimony by holding a deposition.
A deposition is similar to a witness examination at trial. An attorney – either an opposing attorney, or the attorney of the person being deposed (or, the “witness”) – will ask an individual certain questions, which are recorded under oath.
This process will not only expose testimony. Because depositions are recorded and delivered under oath, deposition transcripts may sometimes be introduced at trial. For instance, deposition transcripts may be used to establish facts if a witness will not be able to attend a trial, or may be used to contradict a witness’s testimony at trial. For these reasons, parties should not show up at depositions unprepared. Witnesses that answer questions inaccurately – even by making honest mistakes – risk undermining their credibility. It is important that witnesses, with the help of their attorneys, try to anticipate which events they will be questioned about, review the information they have, and clarify, to the extent possible, their knowledge with regard to those events.
If you have any questions about this or other legal issues, call the Law Firm of Vaughn, Weber & Prakope, PLLC at (516) 858-2620 to schedule a free consultation.
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