Saturday, September 18, 2010

Personal Injury Attorney - Car Accident Appeal Decided by Second Circuit

I recently briefed and argued an appeal in the Second Circuit - the Federal appellate court - related to New York State's serious injury threshold. The District Court dismissed my client's car accident lawsuit on summary judgment (i.e., decided the case on papers without a trial).  The issue on appeal was whether there were triable questions of fact as to whether the plaintiff met New York's "serious injury" threshold.

Nearly all states have enacted a no-fault laws requiring that everyone maintain minimum car insurance, with both drivers' insurances guaranteeing that medical bills for anyone injured in an accident are paid (up to a certain limit).  Even where neither driver is insured, the statute creates a state-operates fund which effectively insures otherwise uninsured drivers up to $25,000.  

The trade-off for guaranteeing medical treatment and ensuring a responsible payor is that people cannot recover for their pain, suffering and emotional distress unless they are "seriously" injured, which is defined as death, a fracture, a significant limitation, a consequential limitation, or being unable to perform usual and customary activities for at least 90 of the first 180 days after the accident.  So-called "soft tissue" injuries are not enough for a lawsuit unless they fit into the  "significant limitation," "consequential limitation" or 90/180 categories. (NY Insurance Law 5102).  

In Luo v. Mikel, the plaintiff suffered a torn meniscus, had corrective surgery, and regularly attended physical therapy for three months.  Although the lower court dismissed the case, on appeal the Second Circuit reversed and found that there was a question of fact as to serious injury.  (You can read the decision at the Second Circuit website and Findlaw, and read coverage at the NY Daily Record).  

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