Albany Injury Lawyers

Car accidents and Underinsured Motorist coverage

This is something a little different. My client was in a car accident and suffered a broken leg. The other driver pled guilty to a traffic ticket, so we have a strong case on liability. A fracture is a qualifying injury under NY Insurance Law Article 51, and this was a relatively serious one - the femur (the big bone in your thigh). The fracture was "reduced" (fixed) with "open reduction - internal fixation" (ORIF). Meaning they opened his leg up (in surgery) and put a rod in to hold the bone together.

The defendant has a 50/100 policy, meaning there's $50K available to the plaintiff. Fortunately for my client (and me, and the referring attorney), the client has 100/300 SUM coverage. SUM is supplementary underinsured motorist coverage. The 100 is what's applicable here. So if the case is worth more than $50K, we can recover more than the defendant's policy limits by going to the client's own insurer.

In this case it gets more interesting because the defendant apparently has assets. Usually someone with limited insurance is relatively poor, and no one's going to bother going after them. I talked with my client's insurance company today and they did an asset check on the defendant. He owns rental property. That's more than just owning a house, and it may lead our insurer to make a claim against that guy's assets.

This, by the way, is a big lesson for people who aren't familiar with this issue. Make sure you have a lot of coverage. In my mind, anyone with any prospect of having significant income or wealth in the next few years should have at least $100K in coverage. And if you're a lawyer, doctor, etc., you should have a million or more. I have a $1 million umbrella, and am thinking about going to $2 million. Extra coverage is really not very expensive. The difference for the defendant in this case would have been something like $50 to $100 per year to have $100K in coverage. Now it may cost him $50K.

So how does SUM coverage work? First, in this case it's likely that the defendant's insurer will offer it's $50K policy. But we can't just take it. We first have to present that proposed settlement to plaintiff's insurer. They get an opportunity to intervene. I'd like to say I fully understand how this works, but I don't.

As best I understand it, if they want to intervene, they have to put up the $50K offered by the defendant's insurer. Then they can intervene and take over the defense of the case. More likely, they will not intervene, but rather will settle with us and then pursue a claim against the defendant for the amount they have to pay out.

However, as I think about this on the fly, it may be that defendant's insurer would not be able to settle under those circumstances. I don't think it's a problem, but it could be. This stuff gets tricky, and I've never come across this exact situation. Another learning experience.

Accident reconstruction

In most NY car accident cases, the big question is about the injuries. Are they "serious" enough to qualify under NY law? And if so, how much are they worth?

Usually, liability, or fault for the accident is straightforward. The defendant rear-ended the plaintiff. Defendant had a stop sign or red light. Plaintiff had right of way.

In some cases (probably less than 10%), liability is a big question. And in some of those cases, it can be very helpful to have an expert review the facts of the case and reconstruct what happened.

A year or two ago I had a big trial, where I thought we had a lock on fault for the accident. The defendant was driving a dump truck with a trailer attached, and decided to make a reverse three-point turn in the middle of a 55 mph two-lane highway. My client hit the rear corner of the truck with her windshield, got 30 shards of glass in her face, a broken sternum, and had a variety of other problems.
The defense offered an accident reconstructionist, George Ruotolo. He did a good job of explaining to the jury why my client should have seen the defendant from far enough back that she should have been able to stop. My client didn't remember what happened, so she couldn't explain that.

Apparently the jury liked what the expert had to say. Fortunately I had made a deal with the defense for what's called a high-low. We agreed to cap damages at $300K, in exchange for a floor of $50K. The jury zipped us -- zero damages. So we got the $50K. If we had gotten a big verdict, we would have been limited to the 300.

So I've got a new case percolating, and it could be a big one. I can see that liability will be a big issue at the trial. Usually you would wait to hire a reconstructionist, but I know Ruotolo is good. I also know the local insurance claim reps and the local defense attorneys like to use him. So I went out and got him early. They're probably going to want a reconstruction. I figure this way it makes their lives a little tougher.

It also helps to get him involved early because it makes me think about what I need to do to get all our ducks in a row. We met already at the scene and talked afterward, and it helped me figure out some things I want to do, and that I should do quickly rather than waiting for the normal process.

Accident reconstructionists are usually, like Ruotolo, former cops who did a lot of this kind of work when they were cops. He also did a lot of work training other cops. Now he speaks at seminars for lawyers. They review the available evidence, advise the attorney on what other evidence should be available, and work with that evidence to figure out how the accident happened.

Personal Injury trials -- PJI

One thing that comes up in personal injury cases is the "Request to Charge". At the end of the trial, after the lawyers' closing statements, the judge reads a series of instructions to the jury. These instructions are called charges. In essence, the judge explains the law.

Over the years, certain standard instructions have been developed. In New York civil cases, they are contained in a set of books call the PJI -- Pattern Jury Instructions.

The charges explain the concept of negligence, and a variety of detailed issues have been well resolved. For example, in the burned foot case I described in a previous post, my client went into the defendants' house to protect both the house and the child inside.

http://albany-injury-lawyer.typepad.com/my_weblog/2005/12/upcoming_trials.html

That brings up not one but two pattern charges from the PJI. PJI 2:41 covers the standard by which a plaintiff is judged when she acts in an emergency situation to rescue a person. 2:42 covers the standard when the plaintiff is rescuing property. Also, 2:13 covers the foreseeability that a defendant should be aware a rescuer might be injured by their negligence.

Meanwhile, 2:90 discusses the "possessors' liability for condition of land". Here, the defendants are the possessors of the land in question, they left a dangerous condition on their property (a pot of grease under a sparking fan), and plaintiff was injured by the resulting fire.

There is even a charge explaining to the jury the life expectancy of the plaintiff, for their consideration in determining how much to award for future damages. In this case the plaintiff, age 27, has a life expectancy according to the tables of 48.2 years. Hopefully they'll want to award her $10K/year for the next 50 years, but now I'm being unreasonably optimistic.