You get that call that no one wants to get. It is the hospital. A family member has suffered significant injuries in a car crash caused by a negligent driver. The news is grim: multiple fractures, a closed head injury, an uncertain future. Sleeping at the hospital during the first few days, you are overwhelmed by shock, fear, and disbelief.
As personal injury attorneys, we have unfortunately seen this tragedy play out many times. During this difficult time, we need to do our job without adding to the family’s burden. We therefore hold off on our questions or requests for information that can wait to a less trying time.
But other things can’t wait. Evidence is like fresh snow. It doesn’t last long. So we may hire an investigator to photograph and examine the crash site and vehicles, interview witnesses, and run title, registration and other searches on the offending driver. We may also interview the responding police officers while they still remember the crash, and we will pull the police accident report as soon as it is ready.
We will also find out if the negligent driver owned the vehicle that caused the crash. If she didn’t, there may be additional liability coverage for the losses at issue from the owner’s liability carrier.
Once we have identified the liability carriers for the offending driver and/or owner, we place those carriers on notice of the claim. We also request pursuant to New York Ins. Law § 3420(f)(2)(A) that the carriers confirm the liability policy limits in writing within 45 days, including all excess or umbrella policies.
If within the scope of our retention, we also ensure that a no-fault claim is submitted for mandatory no-fault coverage. This coverage pays for, among other things, the medical bills incurred as a result of the crash, and a percentage of lost wages, up to $50,000. We also will identify and place on notice further levels of no-fault coverage called in New York Additional Personal Injury Protection (APIP) and Optional Basic Economic Loss (OBEL).
We also determine whether the injured family member or the members of her household have in their automobile policies Supplemental Uninsured/Underinsured Coverage (SUM). This SUM coverage, if higher than the available limits of the offending driver and/or operator’s policy, may provide additional coverage to the injured family member for the crash related injuries and losses.
Another important issue is whether any health insurance carrier, government agency (think Medicaid or Medicare) or APIP no fault carrier will seek to be repaid for the medical bills that it paid for crash related treatment. Without getting into the weeds here, this may depend on the applicability of state versus federal law, New York state laws such as GOL § 5-335, and the terms of the health insurance policies.
In the first few weeks, if the family is up to it, we may also discuss how law suits work, how long it will take, the type of losses and harms that can be recovered, the costs of bringing the case to trial, and whether there is enough liability insurance coverage for the injuries suffered. If there is limited coverage disclosed, then we explain what we will do to search for additional coverage and assets. Often the family just wants to know that we are doing what is needed, and will defer these details for later.
That generally gets us through the first two weeks. During this time we will meet with the family and the injured family member at the hospital, or at home, as often as needed on whatever schedule works for them.
The first two weeks is only the start of our job, but it is a critical phase in a personal injury car crash case in New York. In upcoming posts, we will discuss how we take the injured family member’s case from this immediate post crash phase through trial.