By Edward H. Rosenthal
My vehicle was involved in a fender-bender and both the other driver and I have agreed not to report this incident to our respective auto insurance companies. Is this a wise decision?Insurance rates being what they are, nobody wants to report an accident with apparently minor damage and no complaints of injury at the scene. This may create problems if, in fact, someone who appeared agreeable at the scene of the accident now sues you for a hefty sum of money claiming severe personal injuries and/or property damage.It is always wise to call the police to a scene (no matter how minor the accident) and essential to report a happening of the accident to your insurance carrier. In the event that you are, in fact, sued sometime after the accident, within the three-year statute of limitations, your carrier may very well disclaim coverage under the terms of your policy. In that event, you will be forced to retain your own lawyer, at your own cost and expense, to protect your assets. In addition, if you sustain personal injuries that do not manifest themselves at the accident scene and you did not report the accident to the company, they may very well refuse to pay for your medical and/or hospital expenses, although their policy obligates them to do so under the “No-Fault Law.”Reporting a minor accident in which no claim is made will not in itself cause your rates to be raised. However, it is an invaluable protection. My vehicle was struck in the rear. I went to a hospital emergency room, X-rays were taken, I was treated by my doctor and missed six weeks from work. In addition, as a result of the accident, I sustained numerous black and blue marks that, by now, have disappeared. Yet, my lawyer now tells me that I do not have a case and he does not wish to pursue it. Is there a reason for that position?There are two facets of any lawsuit: The first is liability or the issue of responsibility; and the second is damages. There is no question that since your vehicle was struck in the rear, the car that struck you will assuredly be responsible for your loss. However, even though you may be 100 percent correct and somewhat injured, not every injury is compensable under New York law and if there is no loss under New York state law there, is no lawsuit.The “No-Fault” law was enacted in 1973 and provided a trade-off for the consumer. Under the statute, your own insurance company is obliged to pay hospital expenses, medical expenses and 80 percent of your lost wages, among other benefits up to the amount of $50,000, regardless of the fault. In return, the statute requires a “serious injury” in order to maintain a lawsuit.A “serious injury” requires essentially that a person injured sustain a permanent and/or significant loss of a body function system, member, a fracture, disfiguring scar or a medically determined injury of a non-permanent nature (which prevents the injured person from performing substantially all of those activities not less than 90 days during the 180 days immediately following the accident). Since you were out of work for only six weeks (a total of 42 days) and did not sustain a fracture, a disfiguring scar, or a permanent and/or significant limitation of use of a body function, the injuries described do not meet the threshold of a “serious injury.” More than three years have elapsed since my automobile accident and the case has not been resolved. I understand the statue of limitations is three years following the accident. Am I out of time?The statute of limitations only applies to the time that you have to commence a lawsuit after the accident. Once an action has been commenced, the party that caused your injury, usually through their insurance company, interposes an answer and thereafter, certain discovery requirements must be fulfilled. Usually in less than a year after the summons and complaint are served, the court undertakes the supervision of the discovery process through legal devices labeled “preliminary conferences” and “compliance conferences.”The courts have set standards for the completion of discovery ranging from 9-18 months, based on the complexity of the case when discovery is complete. Your lawyer files a note of issue, a document which places the case on the calendar. You then must wait a period of some 12-14 months in Queens County for the case to reach the trial calendar status and appear in court for trial.There is generally a conference between the lawyers and the presiding judge in an attempt to settle your case, prior to trial. If a settlement is not attained, a firm trial date is usually set within 1-2 months of the conference. That date is not etched in stone. The average time that it takes for cases to reach the trial calender is approximately 3 years from the date of the accident. However, if it is longer, do not worry.This is part of a series arranged by the Queens County Bar Association as a public service to our readers. Edward H. Rosenthal is past chairman of the QCBA's Torts Committee.
