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  • Writer's pictureAlex Maltese

When Can I Sue for Pain and Suffering in a New York Car Accident?

Understanding No-Fault in New York: Car Accident Lawyer in Smithtown, NY Explains When You Can Sue for Pain and Suffering

Motor vehicle accidents are one of the most common causes of serious personal injuries in the United States. According to the National Highway and Traffic Safety Administration (NHTSA), each year roughly 2 million people are injured and almost 40,000 people are killed in traffic accidents. This trend is increasing in New York, where traffic fatalities have increased by roughly 13% over the last year. Victims injured in a motor vehicle accident in New York will turn to their no-fault carrier to recover compensation for their medical bills, lost wages, and property damage. However, our car accident lawyers know that many victims may be surprised when they are denied compensation for pain and suffering.

If this has happened to you, call the Law Office of Carl Maltese to learn more about your rights to compensation under New York law. Our compassionate and skilled team will work with your medical providers to determine the full extent of your injuries and we may hire leading experts to help prove your damages and establish liability. We know the ins and outs of no-fault insurance, and we can review your policy and determine how to maximize your recovery. Call to schedule your FREE consultation today.

What is No-Fault Insurance in New York?

States can either abide by at-fault or no-fault insurance. In an at-fault state, a car accident victim will turn to the at-fault driver’s insurance carrier for reimbursement. Although this sounds like it makes sense, it often results in delayed benefits for medical bills, lost wages, and other damages because fault is usually hotly contested in a crash—especially when there are personal injuries.

Whereas, in a no-fault state, like New York, victims go to their own insurance carrier for coverage of medical bills, lost wages, and property damage. Benefits are timely paid and liability is worked out between your insurance carrier and the defendant’s, sometimes in litigation called a subrogation proceeding.

Can I Recover Pain and Suffering from No-Fault?

Not always. No-fault insurance carriers are responsible for paying basic economic damages, including lost wages, medical bills, property damage, and other economic damages that are related to the crash. Pain and suffering is considered a non-economic damage, meaning that it is not easily calculated.

Victims of a car accident cannot recover for pain and suffering without establishing a “serious injury” under New York Insurance Law. This is part of the “compromise” of having no-fault insurance, or essentially being compensated for basic losses without having to prove fault (even if it is your own fault), in turn for not being able to sue for pain and suffering.

What is a “Serious Injury” Under New York Law?

In order to fit an exception to no-fault, a victim must establish a “serious injury.” This is defined as having a personal injury such as the following:

  1. Death

  2. Dismemberment

  3. Significant disfigurement

  4. A fracture

  5. Loss of a fetus

  6. Permanent loss of use of a body organ, a member, or one of the body’s function systems

  7. Permanent and consequential limitation of a member or a body organ

  8. Significant limitation of use to a body function or system, or

  9. A (non-permanent) medically determined injury or impairment that prevents a person from performing “substantially all of the material acts” that make up their usual daily activities for at least 90 days in the 180-day period following the impairment or injury

If you do not have a “serious injury” as defined by New York Insurance Law, you may attempt to settle your claim with the insurance adjuster, but will often receive a nominal amount of money or be denied. You may still initiate a personal injury lawsuit, but the defense will often file a motion to dismiss or for summary judgment. This will dismiss your claim before a Judge gets to review the merits of your case or your injuries.

Ask Our Car Accident Lawyers to Prove Your Serious Injury Case

Have you been injured in a New York car accident and have suffered significant pain and suffering for your physical and emotional injuries? Are you unsure whether you have suffered a “serious injury” under New York law? Call the Law Office of Carl Maltese to learn what rights to compensation you may have under New York law.  Our experienced car accident lawyers in Smithtown, NY offer FREE consultations and only get paid after you get paid in a verdict, settlement, or another award.

Learn more by calling us or by sending us a message on our “contact us” form.


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