Morgan & Morgan's Comprehensive Guide to New York Car Accident Law
If you’re involved in a car accident, your life changes. You may have injuries to cope with, damage to your car, and complicated insurance forms for doctors and auto shops. Worse, you might be sued by other drivers claiming you were at fault for the accident.
The good news is you don’t have to do this alone. Morgan & Morgan has been fighting for clients for more than 35 years, and we want to help you get the compensation you need. We know insurance companies want to keep their payouts as low as possible, so we help our clients from the outset. We make certain that your claims are filled out properly and contain everything the insurance company wants, so they have no reason to deny your claims.
If your case goes to court, you can depend on us to be there with you. Once we take your case, you’ll be assigned a full legal team. We are here 24/7 to answer any questions you have about your case. Morgan & Morgan works on a contingency basis, so you pay only if we win.
If you were injured in a car accident, fill out a free case evaluation so we can review your accident and see if we can help you with your accident claim.
Step One: If You’re Involved in an Accident
New York drivers suffer thousands of car accidents each year. In 2022, almost half a million vehicle accidents occurred on the highways of New York State. These accidents range from minor fender-benders to deadly fatalities. Perhaps not surprisingly, New York City has the highest rates of fatal accidents per mile in the state, according to statistics compiled by the National Highway Traffic Safety Administration (NHTSA).
If you are involved in a traffic accident in New York, no matter who caused the accident, there are some steps you must take to protect yourself and minimize your liability.
· Stop. You must stop at the scene of any accident. It is a traffic violation to leave the scene of an accident if there is any property damage (such as vehicle damage). It is a criminal violation to leave the scene if there are injuries or a fatality. Being involved in a traffic accident can be frightening, but not as scary as going to jail.
· Call the police. You must call the police if there are any injuries. Even if the other driver asks you not to call the police, you should call them. You must also call the police if there is damage to any property of someone not on the scene (such as a parked vehicle), or if some types of “domestic animals” are hurt.
· Exchange information. You must exchange contact and insurance information with the other driver, the police, and with any other individuals involved in the accident. You must provide your name, address, driver’s license, and insurance information. The police will want your vehicle registration as well.
· Take photos of the scene. If you can do so and the scene is safe, take pictures of the accident scene. Get good photos of the other vehicle, the license plate, and how the cars struck each other. If possible, take pictures of the roadway that show the surface, lighting, obstructions, etc.
· Get witness information. If there are any bystanders, try to get their names and contact information. People are very good at suddenly seeing nothing when you ask if they will be a witness. If you can get even their first names, your attorney may be able to find them later if needed. If there are passengers in the other car, try to get their names as well.
If anyone is injured, do not move them unless they are in danger. Move your vehicle off the road if it is safe to do so. Mark the area with road flares or reflectors. Be careful of leaking fuel or other fluids.
Some things you should not do at the accident scene:
· Do not leave the scene. Fleeing the scene of an accident is a serious crime. Even if nobody was hurt, you can face jail time, and if someone was injured or killed you may face up to seven years in prison. You can expect your insurance rates to go up, and you may lose your license.
· Do not accept fault. As human beings, our reflex is to say “I’m sorry” when something bad happens. Try not to say anything more than that. Never offer to pay for anything, and never agree to split costs or let the other person pay your deductible.
· Do not argue with the other driver. Road rage is fast becoming a secondary component of vehicle accidents. If the other driver begins arguing, yelling, or pulling out weapons, get back in your car or seek a safe location and wait for police.
Do not leave the scene until the police have cleared it. Before you go, ask the police for the incident number. You will need this for your insurance claim. Get the name and badge number of the responding officer.
Step Two: Immediately After the Accident
It’s a good idea to see a doctor after the accident. Even if you think you aren’t hurt, you should go to urgent care or the ER for a checkup. Following an accident, you may be in a mild state of shock and not feel back or neck pain until the following day. More importantly, some types of head trauma can take hours or even days to develop. A doctor can tell you the signs to look for.
Your insurer may ask for a medical exam later if you file a claim. An exam immediately after the accident provides a baseline to measure any future injuries against. If you visit the doctor, keep all medical reports and doctors’ notes. Be sure to follow your aftercare instructions.
In New York, you must file a DMV report within ten (10) days of the accident if the property damage exceeds $1000, or if anyone is injured or killed. You must use an MV-104 form, which is available online. If the report is not filed, your license may be suspended.
Do not assume the other driver will file the report. It is always safer to file the report yourself.
Obtaining Your Police Report
You can get a copy of your accident report from the responding police department or from the DMV. If the NYPD handled your accident, the report will be available at the precinct office for 30 days following the accident.
Other departments and state police have online portals for accessing your report. After 30 days, all accident reports can be obtained through the New York DMV. You will need form MV-198C, available at the DMV website.
You can obtain a copy of your accident report through the local police agency, or the Department of Motor Vehicles. You will need the accident report for your insurance claim.
You should call your insurance agent as soon as possible after the accident. Depending on your insurance company, you may have up to 30 days to file your claim, but don’t delay. Even with New York’s no-fault insurance, you should prepare your documents and start your insurance claim right away. No-fault insurance only covers part of your damages. If you want to get all the compensation you’re entitled to, you must prove the other driver was at fault.
Now you need the services of an attorney like Morgan & Morgan. Whether you want to file with your own insurer or file against the other driver, you’ll need the assistance of a knowledgeable personal injury attorney. Your legal team will help you build your case and make sure you have everything you need when filing your claim.
Step Three: Beginning the Claims Process
New York State has a compulsory no-fault insurance law. No-fault insurance pays up to $50,000 in benefits for medical expenses, lost wages, and other monetary costs for anyone injured in a motor vehicle accident. No-fault insurance only provides coverage if you were not drunk, impaired, or engaged in another criminal activity (like fleeing the scene of an accident).
No-fault insurance does not provide coverage for compensatory damages like pain and suffering. To receive that type of award, you must prove the other driver was at fault and receive an award from the court.
There are some strict deadlines for filing a no-fault insurance claim. This is another place where having a legal team on your side is helpful. We’ll make sure you don’t miss your insurance deadlines.
· No-fault claims must be filed within 30 days of the accident. Your initial claim forms must be submitted no later than that date.
· Medical claims must be filed within 45 days of treatment. You may pay your doctor out-of-pocket and then request reimbursement from the insurer, or your doctor may submit the bills directly to the insurer. You must let the provider know the treatment is related to a vehicle accident.
· Claims for lost wages and other expenses must be submitted within 90 days of the date of loss. In other words, if you lose a week of work due to the accident, your claim must be filed no later than 90 days after the week you miss from work.
Drivers, passengers, pedestrians, and others injured due to vehicle accidents may be covered. No-fault insurance covers any injury or damage caused by the “use or operation” of an insured vehicle. If you have questions, you should contact your insurer and advise them of the accident or contact your attorney.
Fault and Comparative Negligence
If you decide to sue the other driver, you need to understand a bit about proving negligence and fault in New York. Because New York is a “no-fault” state, you can recover damages without proving the other driver was responsible. If you wish to recover for pain and suffering or damages beyond the no-fault limit, you must prove fault.
Negligence is a legal theory that refers to a person’s responsibility in causing an accident. To prove negligence or fault, your attorney must show that the other person:
· Owed you a duty (responsibility)
· Breached, or failed, to carry out that duty
· The breach was the cause of the injury
· You suffered actual harm because of the breach
In the case of car accidents, we all owe one another a responsibility to drive safely. Failing to drive safely is a breach of that duty. However, it’s rare that anyone is 100% at fault in an accident. For instance, the other driver may have run a red light, but you might have been sitting too far out into the intersection. Shared fault is how insurance companies determine who will pay for an accident.
New York, like many states, uses pure comparative negligence when determining fault. Under pure comparative negligence, the amount you can recover is reduced by the percentage you are at fault for. If you are 10% at fault, you can recover 90% of your damages. Theoretically, you could be 99% at fault and still recover 1% of your damages.
A few states use modified comparative negligence, meaning that if a driver is 50% or 51% at fault (depending on the state), they cannot recover on their claim. Three states still use contributory negligence meaning that if the plaintiff is even 1% at fault, they cannot recover any damages.
Appraisals and Repairs
You should take your car to an auto repair shop as soon as possible after the accident. Your insurance company can recommend an auto shop but cannot require you to go to their repair shop. Once you choose a repair shop, let the insurance company know where it is so they can send their adjuster.
The adjuster will examine your car to determine if it is worth repairing. If the cost of repairs plus the salvage value (the value of the car’s parts and scrap) is more than 75% of the car’s cash value, the adjuster will declare it a “total loss.” Insurance companies assume that if a car is badly damaged on a visual inspection, there will be more damage when the car is disassembled for repairs.
If you disagree with the adjuster’s valuation of the damage, you may request a “total loss appraisal.” This type of appraisal is done by a professional appraiser who can more accurately evaluate the amount of damage done to the car. You may want to request this type of appraisal if you believe your car can be repaired or if the adjuster’s total was not sufficient.
Step Four: Pre-Trial
In New York, you may be able to recover most of your costs through your own coverage, or via a no-fault claim. However, if your expenses are greater than the $50,000 limit of no-fault insurance, or the other driver did not have sufficient insurance, you may need to file a personal injury claim.
Serious Injury Under the Insurance Law
New York’s Insurance Law Section 5102(d) allows plaintiffs to sue if they have suffered a “serious injury” arising from a car accident. The law lists nine enumerated “serious injuries,” and while some are fairly straightforward (such as “death” or “loss of a fetus”) some are not. The more complex injuries include:
· Significant disfigurement
· Permanent consequential limitation of an organ or limb
· Non-permanent medically-determined injury or impairment that limits the injured person for at least 90 of 180 days following the accident
Proving these types of injuries requires substantial medical documentation and legal support. Morgan & Morgan has argued and won personal injury claims in New York for three decades and we know what courts want to see when you file these claims.
Showing that an injury has produced a “significant” disfigurement” or a “consequential” impairment may require expert testimony or additional evidence from your treating physician. This is one reason it is essential to be seen by a doctor immediately after an accident and to follow your doctor’s instructions afterward.
Statutes of Limitation
The statute of limitations is the amount of time you must file a personal injury claim. In New York, you have three years from the date of the accident to file your case in court. However, this includes the time you must spend filing your no-fault claim and determining if you have reason to sue the other driver.
It may be possible to extend the time by filing a Notice of Intent. Your attorney can help you make that decision. The Notice of Intent puts the defendant on notice that a lawsuit is possible. Notices of Intent have their own restrictions and deadlines.
Subrogation
Subrogation is how insurance companies pay themselves back for paying your claim. The insurance company “stands in your shoes” to sue a third-party insurance company for the harm caused to you.
Suppose you were seated at a red light and were rear-ended by a delivery truck. Your total damages came to $150,000. Your insurance company pays you $140,000 after your deductible. Since the delivery driver caused the accident, your insurance company can sue them (in your name) for $140,000. You can sue the driver’s company yourself for the deductible.
That in a nutshell is how subrogation works. There are other limitations and regulations surrounding subrogation. The insurance company must pay your claim in full (“make you whole”) before it can file a subrogation claim on its own behalf. Insurance companies cannot file subrogation claims against their own insured parties. This complicated concept still gives attorneys and judges headaches.
An insurance company has only three years to bring a subrogation claim, which gives them impetus to settle your claim quickly and allows them to file their own case against the other insurance company. When you have a good attorney such as Morgan & Morgan fighting for you, we will help keep your case moving forward so the insurer keeps their focus on their own future case.
Step Five: Litigation
Insurance legal cases seldom end up in court. Litigation is expensive, and your attorney and the insurance company’s legal department would rather avoid it. If you have an aggressive legal team, when they are prepared for court, the insurance company begins the settlement process.
Morgan & Morgan prepares every case for trial from the beginning. Your legal team assembles your case as if they were going to the courtroom the next day. We want to see you get the best settlement or award possible. Once you submit the case evaluation form, Morgan & Morgan will generally call you within 24 hours. Our auto accident agents will review your case. You will be assigned a car accident attorney, legal assistant, and paralegal within a week after your case review. Our car accident lawyers work as efficiently as possible to ensure the case doesn't take longer than necessary.
Each case is different, so there is no template for how your case will progress. Most of our cases follow a basic timeline once we’ve interviewed you and gotten your initial documentation.
Investigation
Your attorney and the support staff review all your case. You might be asked to provide more information, or we will obtain what we need. Some of the documents might include:
- Police reports, photos from the scene, witness statements, and contact information
- Medical reports, doctor’s statements, and hospital records
- Your insurance policy and DMV record
- The insurance adjuster’s report
Your situation determines how your attorney will proceed. For instance, if the insurance company has denied your claim or you disagree with their offer, your attorney will review the case with your agent. If you are being sued by the other driver, your attorney will contact their attorney to discuss possible settlement options.
Discovery
The attorneys will exchange information during the settlement negotiations. Sometimes this happens after the actual litigation has started, but it might happen sooner. Your attorney will ask the other lawyers for a statement from their client about what happened, and for their copies of police and medical reports. Your documents will be sent to the opposing attorneys.
This process lets everyone see all the facts in the case, and whether litigation is a realistic option. Although you always have the right to go to trial, your attorney may advise you to settle. At Morgan & Morgan, your best interests are always foremost.
Mediation/Arbitration
New York’s no-fault laws allow an insured driver to choose arbitration versus litigation in an uninsured motorist claim. Arbitration is an alternative dispute resolution method to court. The parties go before a neutral arbitrator, who listens to both sides and issues a ruling. The advantages of this method are lower costs, faster hearing, and binding rulings. Arbitration can be ideal for those with only monetary issues to be heard in court.
Mediation is an alternate form of negotiation sometimes used in claims that otherwise might go to court, but do not involve questions of law or fact. Insurance claims can be mediated unless the subject is being appraised or evaluated.
Bad faith, third-party claims, lack of coverage, and other legal issues cannot be mediated.
Depositions and Experts
If it looks like the case will go to trial, your attorney may schedule depositions. A deposition is a witness statement under oath. You and your attorney review the witness list and decide who should be questioned or deposed. Both attorneys must be present, and the witness must swear to tell the truth. A court reporter makes a transcript of the deposition.
The attorneys ask questions of the witness, and the attorneys can object as if it were a trial. The witness must answer, even after the objection is made. After the deposition, the transcript may be entered into the court record as part of your trial exhibits.
Expert witnesses may be needed to explain some parts of the case. Expert witnesses help the jury understand the technical details of the claim. For instance, if part of your case involved the physics of the car sliding on ice, an accident reconstruction specialist might testify about how your car hit black ice on that corner.
Expert witnesses must be approved by the court and have credentials in the field in which they testify. Your attorney will let you know if an expert will be needed in your case. Morgan & Morgan has extensive expert witness lists and will have the right person for the job.
Conclusion
If you’re involved in a motor vehicle accident in New York, you need an attorney right away. Even if everything goes smoothly from the start of your claim to receiving your settlement check, you should have legal advice. Someone should review your claim before you send it to your insurance agent. When the offer comes back from your agent, your attorney should double-check to be sure they gave you everything you deserve.
At Morgan & Morgan, we’re here for you 24/7. Our attorneys, paralegals, and legal assistants can assist you with your claim and ensure you get the help that you need. Contact us online or call 877-667-4265 for immediate assistance.
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