Articles Posted in Successful Injury Case Strategies

A recent serious motor vehicle accident involving Staten Island residents Wilma and Victor Rao brings into stark focus the importance of “SUM” insurance coverage when an accident victim suffers injuries through the negligence of a driver either with no insurance coverage (due to an insurance lapse or never having insurance to begin with) or insufficient coverage to compensate for the injuries and financial losses suffered by the victims. “Sum” means supplemental underinsurance (for accidents with drivers that have inadequate insurance), or uninsurance (for accidents with drivers that have no insurance). The Raos were in an accident with 29 year old ex-convict Christopher Chin, who went through a stop sign, struck the Chin vehicle, and had no insurance on his vehicle.

Victor Rao, 51, who was in a medically induced coma for one month, suffered loss of vision in his left eye, brain injuries, a broken hip, several fractures in his right arm, and an inability to use his right hand. Victor’s wife, Wilma Rao, 56, suffered a fractured pelvis and broken collarbone. Despite these severe injuries, Ms. Rao is valiantly attempting to run both her antique store and Mr. Rao’s freight forwarding business while all also assisting in her husband’s rehabilitation and taking care of their two children.

The huge problem for the Raos, as it is for so many car accident victims in the State of New York, is that while they had $100,000 in bodily liability insurance coverage, which would protect other drivers if they were negligent in an accident and injured someone else, they had only $25,000 in SUM uninsured/underinsurance coverage. Thus, since Mr. Chin, who is also being charged with two counts of felony second degree vehicular assault, has no assets and no insurance, the Raos are each limited to $25,000 through their SUM uninsurance coverage for all of their physical and financial injuries. This could have been so easily averted if they had simply been advised by their insurance broker, or if they went through the insurance company directly, a claim representative, that they should consider raising their underinsurance/uninsurance coverage to at least the same amount as their bodily injury coverage of $100,000 per person.

Whenever a car accident victim walks into our office, one of the first topics we discuss is the issue of underinsurance coverage. Because we usually do not yet know if the defendant has sufficient insurance coverage (or as in the Rao case, any coverage at all), it is vital to find out what SUM coverage our client has to protect themselves. Further, there is a specific requirement with SUM claims that they be filed promptly after an accident has occurred, so time is of the essence.

One other very important detail to remember about SUM coverage is that it only applies if the SUM coverage of the injured person is more than the bodily liability coverage of the other car involved in the accident. For example, if the bodily liability coverage of the negligent other driver is $100,000, and so is the SUM coverage of our client, than the SUM coverage does not apply, and it would also not apply if the other driver’s coverage was more than our clients’ SUM coverage. However, if the SUM coverage is more than the bodily injury coverage of the wrongdoer’s policy, then the bodily injury policy coverage is subtracted from the SUM coverage and what is remaining would be available to our injured clients. In this latter example, if the SUM coverage is $250,000 and the bodily injury liability of the other driver is $100,000, then there would be $150,000 available SUM coverage—i.e. $250,000 SUM Coverage–$100,000 Bodily Liability Coverage from wrongdoer= $150,000 remaining available SUM coverage.

“SUM” coverage is a vital yet frequently not purchased element of automobile insurance which protects a driver or passenger from being injured in an accident with either an uninsured driver or driver with inadequate insurance to compensate the injured car occupant (s) for their pain and suffering, medical bills and lost earnings sustained as a result of the other driver’s negligence.

The irony of SUM coverage is that is relatively inexpensive, (in the range of $150.00 per year to provide good coverage) and insurance brokers often neglect to mention to the clients the benefits of this coverage in an effort to reduce possible claims against the insurance companies that they are beholden to.

As a long standing member of the New York State Trial Lawyer’s Association, I have lobbied along with many other members of NYSTLA for at least the last few years to change the rules about SUM coverage from what is known as an “opt-in” provision (meaning that you have to specifically request the coverage to obtain it) to an “opt –out” provision, in which the person applying for car insurance would have the same SUM coverage protecting them as they would bodily injury coverage protecting other drivers and car occupants UNLESS they specifically stated that they did not want this coverage. We were successful in persuading the NY State Legislature to pass a bill with the new “opt-out “ provision for SUM coverage, which is presently sitting on Governor’ Cuomo’s desk and facing strenuous opposition from the big car insurance companies such as Allstate (“You’re In Good Hands”), State Farm (“The Good Hands People)”, Progressive, Geico and others.

I would strongly urge anyone who has read and taken an interest in this article to contact the Governor Cuomo’s office today to urge him to sign the SUM Bill, which is also identified as Senate Bill S7887 (Seward) and Assembly A10784 (Morelle).

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A recent decision in a Jefferson County, Pennsylvania Court should provide a strong wake up call to personal injury plaintiffs who are on social network sites such as Facebook and MySpace. The case, McMIllen v. Hummingbird Speedway, Inc.,, involves a stock car racer who claimed that he was permanently injured when his car was rear ended in a stock car race in July of 2007. The defendants that he sued reviewed the public section of McMillen’s Facebook account and found that he had commented on a recent fishing trip and attendance at a Daytona 500 race. They then requested that the Court order Mr. McMillen to provide user names and passwords for his Facebook and MySpace accounts. They did this, of course, so that they could access wall posts, photos and other non-public information to determine if these entries contradicted his claims of being permanently impaired and unable to enjoy his usual activities as a result of the July, 2007 accident.

McMillen’s attorneys fought the request by the defendants, claiming that McMillen had a right to privacy with regard to his Facebook and MySpace accounts which would be violated if the Court ordered the disclosure requested by the defendants. In response, the Court reviewed what is privileged information under Pennsylvania statutes, and noted that the only inviolable privileges include those against self incrimination under the 5th Amendment of the Constitution and the attorney-client privilege. Pointedly, the Court noted that there is no “social network site privilege”. It also declared that the purpose of the social network sites is to connect with friends and meet new people, and that it would be “unrealistic to expect that [such] disclosures would be considered confidential.” Additionally, the Court reviewed the privacy policies of both Facebook and MySpace, and found that they clearly envision a scenario in which these sites would divulge information directly in response to judicial requests: For example, Facebook’s policies state that: “Users are informed that Facebook’s operators may disclose information pursuant to subpoenas, court orders, or other civil and criminal requests if they have a good faith belief that the law requires them to respond.”

In summary, the Court in McMillen ordered that the plaintiff has to provide his user name, log in and password so that the defendants’ lawyers could access his Facebook and MySpace accounts to determine if in fact he was engaging in activities which would contradict his claims of permanent injury and limitation of his previously actively lifestyle. It may have been that the fishing trip and trip to Daytona were aberrations and that Mr. McMillen is in fact permanently disabled from his July, 2007 accident. However, the moral of this story is that if you are involved in a personal injury case, the wisest course of action is to avoid posting information, photographs and other entries on your Facebook and other social media accounts which might later be used against you to contradict your claims of injury.

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Many of our clients have suffered injuries in elevators, either by a free falling elevator, an elevator that mis-leveled, or being struck by an elevator door that closed too fast. In older apartment buildings in Manhattan and the Bronx, for example, the elevator doors are frequently manual, and have not been properly maintained. Especially for older clients, they can be struck by a door which comes back at them too fast, often with disastrous results.

If you are injured in an elevator accident, here are six critical things you need to do immediately:

1. Write down the number of the elevator and the any information about the manufacturer contained inside;
2. If there is inspection information posted inside the elevator, record this as well;
3. Obtain the names, addresses and phone numbers of any witnesses to your accident;
4. Take photographs from inside and outside the elevator, of the inspection certificate, elevator doors, numbers or other identifying information outside the elevator;
5. Report the accident to building management, and obtain a copy of the report before you leave the building if you are physically able to do so;

6. Try to obtain the name and address of the elevator maintenance company.

When you report the accident, you can expect that you will be contacted almost immediately by either a claims administrator or insurance representative seeking information about your accident and injuries. These representatives are trained in asking questions designed to place the fault of the accident on you–i.e. you were on a cell phone, late for a meeting, distracted by children, or simply not paying attention to your surroundings. Simply put, it is imperative that you retain an attorney immediately who will provide you will skilled and experienced legal representation and procure the maximum compensation for your injuries, medical bills and lost earnings.

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When a client walks into our White Plains, New York office, having suffered a serious injury in a car crash, slip and fall accident, or from using a defective or dangerous product, we envision that this new case will reach trial, and want to preserve evidence as soon as possible. One of the most important types of evidence to prove your personal injury case in Court is photographs–of the smashed in back of your car, uneven and broken sidewalk or stair, or icy driveway. Each of these conditions frequently disappears and is lost forever shortly after the accident. The car is taken to a repair shop and declared a total loss; the owner of the stairway sends out a contractor to fix the broken stair, or the icy driveway is cleared up through a quick application of salt or a warming trend in the weather.

Thus, it is our advice that immediately after the accident, you have a friend, relative, or witness take photographs of the scene of the accident, and of the cars involved if it was an auto accident. Obviously, if you are able to, you can do this yourself, but often, the injuries you have suffered prevent this. If you wait until the next day or a couple of days later, particularly with regard to weather related accidents, the evidence is likely to be lost forever.

The reason that photographs are so critical is that insurance companies utilize them to determine the severity of an accident, and to decide in many cases whether your injuries were caused by the accident. The second reason is that if the case does not settle before trial, jurors often expect to have visual proof of the damage to your vehicle, or the stairway you fell on, before deciding whether the defendant is at fault for your injuries.

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In the previous article in this series, we focused on the preparation for your deposition. Now that you have properly prepared for your deposition, here are the do’s and don’ts for your testimony. First, make sure that you clearly understand the questions you are being asked, and if you don’t, say so. I tell my clients that they have three options: tell the defense attorney that you need the question rephrased, ask to speak with me, or have the court reporter read back the question–sometimes the meaning becomes clearer if the question is read more slowly. Second, you must not volunteer information! If I as your attorney do not know what you are about to say, I may not want you to testify on that topic, so only respond to the questions you are being asked. Try to pause between the question asked by the defense attorney, and your answer, both to assist you in thinking about your answer, and equally importantly, to allow your attorney to make an objection to the question if the question is improper or calls for testimony which is privileged. (for example, a question such as “what did you talk to your attorney about is protected by the attorney client-privilege and you would be told not to respond to this question). Feel free to speak to your attorney if you need advice about a question or if you are concerned about a topic which has come up during the deposition, such as a prior criminal conviction–and always remember to discuss any possible issues with your attorney before the deposition so that he or she is not blind sided by a question that you had not discussed beforehand.

There is a very important distinction between your testimony about the accident, which should be as short and limited as possible, and testimony about your injuries, pain and the effect on your life, which absolutely must be thorough, descriptive, and no holds barred.

Testimony as to the accident is a minefield since the defense attorney is looking to get testimony from you that can be used to blame the accident on you rather than his client. Classic examples of this are in New York car crash cases and trip and fall accidents. For example, in a deposition involving an auto accident, the attorney will ask the following: “For how long before the accident did you see the other car? Clearly, this is a trick question. You may not have seen the car at all before the accident, but if you did, it would only be a for a few seconds or less, yet countless witnesses will respond “Oh, for a minute before the accident.” Obviously, if you had plenty of time to see the other car before an accident, you would have had time to avoid the crash, so make sure you think about the question before you respond. In a trip and fall deposition, the defense attorney will ask: “Where were looking as you were walking? Most people walk looking straight ahead as well as looking toward the ground, but if you only mention looking straight ahead, you have now sown the seeds of a defense that the plaintiff “failed to see what was there to be seen”–meaning that had you been looking at the ground also, you would have seen the uneven or broken sidewalk and avoided the accident. The motto is give short, responsive answers, think carefully about the question before answering, and if you don’t know or can’t remember a detail, do not hesitate in giving this answer–never guess or speculate!

Remember that this is your own opportunity before trial to let the defense attorneys and insurance companies know why they should try to settle with you prior to trial, so if you minimize your injuries, you better believe they will. I have frequently had clients tell me during our preparation that “I hate to complain, it’s not my personality.” Guess what? For the two or three hours of the deposition, you must complain, and describe your pain in detail. USE ADJECTIVES! Never say I have “discomfort”. A stubbed toe causes discomfort; a torn anterior cruciate ligament or Achilles tendon hurts like hell! Give examples of what your pain feels like, so that the attorneys, and later on, potential jurors will know precisely what you mean: i.e. “The pain is so bad it feels like I am being stabbed with a knife in my knee when I walk…” Make sure that the defense attorneys know exactly how the injuries have prevented you from doing what you love–playing tennis, running, skiing, or playing basketball with the kids, as well as hampered you in doing activities you must do, such as cooking, cleaning, or other household chores.

Do not let the other attorney cut you off if you have not completed your answers about the toll the accident has taken on your life–remember that the attorney is preparing a report to send to the insurance company claims representative–every detail counts!

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Here are three very common scenarios for prospective clients who come for their free consultation to our White Plains, New York law offices. The client was walking on a public sidewalk and tripped and fell on a defective sidewalk, suffering serious injuries. The potential client was injured in a New York car crash with a car or truck owned by a village, town or city. While entering or leaving a municipally owned building, the client slipped and fell in an area which had not been plowed, shoveled, sanded or salted.

These three potential cases against municipalities have a common, critical element: A notice of claim, alerting the town, village or city department to the date. time, location and the specifics of the accident must be filed within 90 days of the accident. If a properly prepared notice of claim is not filed with the municipality within that 90 days, your New York County trip and fall, Kings County car accident or Westchester County slip and fall accident (to use three examples) will be denied by the municipality and dismissed by a local Court. There are exceptions to this very harsh rule, for example, in some cases involving infants and those with certain disabilities, but for the most part, failure to file a timely notice of claim is fatal to your personal injury case.

Thus, it is vital that you consult an experienced, knowledgeable lawyer immediately after your accident to assure that your rights and interests are protected.

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When you have been injured in a New York car crash, or slip and fall accident, fallen off a ladder or scaffold on a construction site, or been the victim of a dangerous product or medication, it is vital that you document your accident and injuries. Previously, we have written about the importance of reporting your accident and obtaining a copy of the accident report from the owner of the premises. We discussed getting the names, addresses, and phone numbers of witnesses. In prior blogs, we also stressed the importance of taking photographs, for example, of the defective sidewalk or step; the damage to your car before it is totaled or repaired; the dog that bit you, and of course, your injuries from the accident.

Another excellent type of documentation is to maintain a diary of the following: the hospital and medical treatment you underwent; the type of pain you experience on a daily basis, and what activities bring the pain on or exacerbate your suffering; your inability to perform activities of daily living due to your injuries (and identifying the people who must do these activities instead regarding household chores or maintenance); and how the accident has affected your enjoyment of life. This is instrumental when you must give testimony at a deposition or trial (often months or a couple of years after the events) as to treatment, pain and disability, and the toll the accident has taken on your life. These are the most important elements a jury will consider when deciding how much to award for your damages, so keeping a diary is a very smart way to improve your chances of a successful outcome at trial or a more substantial settlement before trial.

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When you are injured in a New York car crash, here are ten things that you should do:

1. Make sure to call the police. The other driver may ask you to “work it out between us”, but that is always a bad idea, and will certainly hurt your prospects for a settlement with the other driver’s insurance company if the accident was not reported.

2. Report all injuries to the investigating officer. Frequently, new clients come to our White Plains, New York office with a police report which states that “no injuries” were reported by either driver in the car accident. Insurance companies always refer to this in settlement negotiations, so don’t let this happen to you.

3. Go to the hospital immediately and make sure that all of your injuries are noted by the triage nurse at the hospital.

4. If at all possible, get the names, addresses and phone numbers of any witnesses. Once you are taken for medical treatment, this information is very often lost forever and this can be absolutely vital to the success of your case.

5. Document the accident scene, the location of the vehicles, accident debris, the damage to your car, and any visible injuries with photographs. If you don’t have a camera, use your cell phone if you can. This cannot be emphasized enough.

6. Treat immediately for your injuries to avoid insurance company claims that your injuries were not from the New York car accident.

7. Don’t speak with the other driver’s insurance company, and don’t sign any papers or fill out any reports for the other insurance company.

8. Obtain the police report right away and if the other driver hasn’t reported the accident, you or your lawyer must do so right away to preserve your rights.

9. Make sure you report the accident to your own insurance company to ensure that your no-fault coverage, which will pay for your medical treatment and lost wages, is immediately in effect.

10. Contact a New York personal injury lawyer immediately to represent you throughout the process, which is designed with many filing deadlines which must be met to protect your legal rights and insurance coverage.

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You have been involved in a New York car accident, or a slip and fall accident, or you have been the victim of a defective product in New York. You hire a lawyer, who commences a lawsuit on your behalf when the insurance company won’t make a fair offer to settle your case. Approximately 45 days after your deposition, during which you are asked questions under oath by the defendant’s lawyer about your accident and injuries, you will be required to attend what is commonly known as an “IME.” (Independent Medical Examination). This name is in actuality quite laughable, as there is nothing at all “independent” about the examination. It is scheduled by the insurance company lawyer with an orthopedist, neurologist or other doctor who is known for giving opinions that minimize injuries as slight and not permanent, (or that you can return to work) despite your treating doctor’s opinion otherwise. The insurance company doctor will then give trial testimony as to your supposed miraculous recovery for a fee, usually in the range of $7,500 to $10,000 for a few hours in Court!

At The Law Office Of Mark A. Siesel in White Plains, New York, we take these “IME’s” very seriously, and instruct our clients exactly how to approach them so as to limit any potential damage to their case by the insurance company doctor’s opinion. First, make sure that you have your watch with you, and something to take some notes at the conclusion of the examination. Here are the instructions to our clients:

1. When you are presented pages of an intake form requesting personal information such as your social security number and home address (totally for the doctor’s convenience and with no benefit to you) write your name, age and injuries you suffered, and nothing else, and hand the form back to the receptionist;
2. Remember that this is not your doctor, and that his or her main purpose is to be able to write a report and testify in Court that you are either fully recovered, are not in any way disabled, and can return to work if you are not working. Thus, it is critical that when the doctor requests that you do certain tasks, such as walk on your toes or heels, touch your toes, lift your legs to a 90 degree angle from a sitting position or bend in some awkward way (all for the purpose of testifying that you have “normal range of motion”), YOU MUST STOP THE DOCTOR WHEN WHAT HE OR SHE IS DOING IS HURTING YOU! Take control of the exam in a firm fashion and let the doctor know that you do not want to reinjure your back, neck or other part of your body by the examination;

3. The doctor is entitled to ask you about your injuries, past related injuries, treatment you are undergoing and medications you are taking for your pain. If he or she begins asking questions such as what color the traffic light was, or if you were distracted when the accident happened, politely remind the doctor that he or she is supposed to be doing a medical examination, not cross examining you–that role is for the lawyers.

4. When you walk into the examination room, check your watch, and write the time down. Similarly, when the exam ends, jot down the time that it was completed. This is absolutely critical! The reason? Because these “IME’s ” are generally no more than 10 minutes, maybe 15 at the most. When we have the opportunity to cross examine this very wealthy IME doctor during your trial, imagine his or her surprise when they are confronted with the question: ‘Doctor, how could you possibly have conducted a complete examination of my client when you began the exam at 10:54 AM and she left your office at 11:03? Believe me, these insurance company doctors have no good answer for that question.

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If you are injured in a New York car crash, a Westchester slip and fall accident, a Bronx dog bite, or Brooklyn construction accident, (among numerous other types of accidents) after you have consulted an attorney and started a lawsuit or claim, there is another possible way to resolve your case with the insurance company or defendant. Alternative Dispute Resolution, or ADR, has become a frequently used method of resolving cases.

The two basic types of dispute resolution in New York car crashes or New York slip and fall cases are mediation and arbitration. In a mediation, the two sides agree to an impartial mediator, usually a retired judge, and submit written submissions with their respective positions in the case. At the mediation, the judge listens to a brief statement from each side, then commences negotiating with both parties to try to work out a settlement. The parties are not obligated to agree to the judge’s settlement recommendation, but in my experience, approximately 75% of cases do settle when they go to mediation.

In an arbitration, the big distinction is that unlike a mediation, the judge’s decision is binding on the parties. The arbitration is similar to a mini trial, with parties questioning and cross examining witnesses, and testimony from experts such as treating doctors. Unless the judge makes a substantial error in his determination of the facts and the law, the decision in an arbitration is final. At The Law Office of Mark A. Siesel in White Plains, New York, we prefer mediation to arbitration and encourage our clients to consider mediation to resolve their case. Mediation is much faster than going to trial (often, a case can be mediated within the first year after the accident), much less costly (there is no need to have the treating doctor testify in Court, which in 2009, generally costs between $7,500 to $10,000), and the process is non-adversarial.

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