Question about personal injury claim

[SPROUTLADY123]

What is the name of your state (only U.S. law)? New York

I was hit by a car last year. I was operated and received a hip implant. I was in a nursing home for one month after. I walk with a mobility device and a cane. My pain is every single day. Here is my question. And I have yet to be deposed. This is coming up next month.

I expected to be awarded much more than I was told I could receive.

I recently asked my lawyer what I could expect to receive given my injuries. We have yet to learn if the guy who hit me has an umbrella policy. And I was told this is a no fault case because it is in New York. Here is what the lawyer wrote to me.

"**************There are three components to a personal injury claim – Fault, injury and insurance coverage. In your case, the defendant was insured with {SUCH AND SUCH INSURANCE COMPANY} with the policy limits of $100,000 per person for a claim for bodily injuries. We have requested an affidavit of excess/no excess to confirm whether there is any additional insurance coverage for your accident, however we do not believe that there is any additional coverage. Consequently, the total amount we would be able to collect from the insurance company is $100,000.00 in total"......

My husband who is an ex private investigator/process server says this is all BS and I should be entitled to a lot more, for example the guys assets, his car, etc. If I do settle I would get one third after lawyers fees and whatever expenses and liens.

So I am asking you guys, is my husband correct or was the information I received from my lawyer correct?

I was crossing the street and I had the green light when this happened last year. It was during a snow storm that came on very quickly.

Thanks to anyone who can answer.

sproutlady

 

[PayrollHRGuy]

Sounds like your lawyer is simply looking for the low hanging fruit (the insurance) or he has looked into it and the person that hit you simply has no assets nor the hope to have more assets that you could get in a judgment.

 

[sudenzia]

Consequently, the total amount we would be able to collect from the insurance company is $100,000.00 in total"......

Is there anything after that bit? About garnishing wages or selling assets or obtaining liens? If the policy is for $100,000, once the insurance pays that, they are done. So the statement seems accurate. Perhaps not as complete as you would have like...

There isn't a need for the false dichotomy that either your lawyer or your husband is right... they both could be.

I think you should talk to your lawyer. You can't get blood out of a turnip, perhaps your lawyer doesn't think you will be able to collect more than the insurance money.

 

[adjusterjack]

I was told this is a no fault case because it is in New York.

That's true. New York State law prohibits the filing of a lawsuit for non-economic injuries (pain and suffering) in a personal injury case involving a motor vehicle unless the injury is a " Serious Injury". The Insurance Law §5102(d) defines serious injury as follows:
•Death
•Dismemberment
•Significant disfigurement
•Fracture
•Loss of a fetus
•Permanent loss of the use of a body organ, member, function, system
•Permanent consequential limitation of use of a body organ or member;
•Significant limitation of use of a body function or system;
•Medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than 90 days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Your injuries have clearly penetrated the no-fault threshold so you need not be concerned with no-fault any more.

Here is what the lawyer wrote to me.

"There are three components to a personal injury claim – Fault, injury and insurance coverage. In your case, the defendant was insured with {SUCH AND SUCH INSURANCE COMPANY} with the policy limits of $100,000 per person for a claim for bodily injuries. We have requested an affidavit of excess/no excess to confirm whether there is any additional insurance coverage for your accident, however we do not believe that there is any additional coverage. Consequently, the total amount we would be able to collect from the insurance company is $100,000.00 in total"......

My husband who is an ex private investigator/process server says this is all BS and I should be entitled to a lot more, for example the guys assets, his car, etc. If I do settle I would get one third after lawyers fees and whatever expenses and liens.

So I am asking you guys, is my husband correct or was the information I received from my lawyer correct?

Your lawyer is correct.

Your husband is, in part, correct in that you may be entitled to more than the $100,000 per person policy limit.

However, there is a limit on what you can get from "the guy's assets, his car, etc."

NY allows exemptions from creditors (you) the same as for bankruptcy so you can read the list at:

https://www.thebankruptcysite.org/exemptions/newyork.html

Other than wage garnishment, everything is likely to be rather problematic to pursue. Besides, as long as the other driver wasn't DUI, any award over the $100,000 can be discharged in bankruptcy.

If your injury claim is well over the $100,000 of the driver's policy, look at your policy for Underinsured Motorists coverage and see if you have sufficient UIM limits to cover additional claim value. If your limits are not sufficient, you are likely stuck with the $100,000 (if offered).

Keep in mind that, on a contingency, all your lawyer has to do is get you an offer of settlement. If the offer is the policy limit, he's done. If you want him to pursue the at fault driver any further than that, you will have to go to trial and be awarded an additional amount. My guess is that your lawyer will refuse to do that if he has obtained the policy limit for you unless, of course, you pay him by the hour.

If you get offered less than the $100,000 you are free to decline it and insist on going to trial which is likely to cost you more of the award because contingency agreements are often 1/3 for a settlement and 40% to go to trial. And going to trial is no guarantee of a larger award.

 

[ecmst12]

In order to receive more than the policy limits, you have to decline to settle and go to trial. Then be awarded in excess of the policy limits at the trial, which will take years and be very expensive. And then you have the challenge of actually COLLECTING from the other party beyond the policy limits. Unless he has significant, easily collectible assets, there is no way that you will make back what it will cost to go to trial (time or money) by trying to collect on personal assets. So for all practical purposes, you can't get more than the policy covers. You should carry higher underinsured motorist coverage on your own policy to protect against situations like this.

 

[Taxing Matters]

Unless he has significant, easily collectible assets, there is no way that you will make back what it will cost to go to trial (time or money) by trying to collect on personal assets.

And most people with significant assets will carry policies with higher limits than what this person carried. It doesn’t cost all that much extra to buyer higher limit coverage, and when you have significant assets it’s well worth having that extra coverage for situations like this. Pretty much any insurance agent would point that out.

 

[SPROUTLADY123]

You wrote: "look at your policy for Underinsured Motorists coverage and see if you have sufficient UIM limits to cover additional claim value. If your limits are not sufficient, you are likely stuck with the $100,000 (if offered)."
My policy? I don't drive

Sproutlady
P.S. Thanks much for the info. I'm learning more each day

 

[SPROUTLADY123]

In order to receive more than the policy limits, you have to decline to settle and go to trial. Then be awarded in excess of the policy limits at the trial, which will take years and be very expensive. And then you have the challenge of actually COLLECTING from the other party beyond the policy limits. Unless he has significant, easily collectible assets, there is no way that you will make back what it will cost to go to trial (time or money) by trying to collect on personal assets. So for all practical purposes, you can't get more than the policy covers. You should carry higher underinsured motorist coverage on your own policy to protect against situations like this.

Thanks so much for writing this. I just wrote to my lawyer (didn't tell him I am getting information from message boards).
But I wrote what you indicated. We shall see what he responds.

Thanks so much.

Sproutlady
What does this mean "underinsured motorist coverage on my policy"????
I don't drive

 

[adjusterjack]

Sproutlady
What does this mean "underinsured motorist coverage on my policy"????
I don't drive

It's a coverage that protects an insured from drivers who don't have sufficient amount of insurance.

Does anybody in your household have a car with auto insurance that might define you as "an insured" just by being a member of the household even though you don't drive?

 

[SPROUTLADY123]

It's a coverage that protects an insured from drivers who don't have sufficient amount of insurance.

Does anybody in your household have a car with auto insurance that might define you as "an insured" just by being a member of the household even though you don't drive?

Hi. No, no one drives in my household. Not for over 20 years.

I heard back from my lawyer. He wrote exactly what all of you wrote. Also, he explained that if I did go to trial, it might take years, and be very expensive. I can't do that.

He knows this.

I do want to thank all of you for responding.

Sproutlady

 

[adjusterjack]

Then you'll just have to wait and see what kind of settlement gets offered and then you decide whether to accept it or not.

Keep in mind that your lawyer will want his payday, too.

He'll take his cut and expenses off the top.

Your medical insurance likely has a right of reimbursement.

What's left goes to you.

 

[SPROUTLADY123]

Then you'll just have to wait and see what kind of settlement gets offered and then you decide whether to accept it or not.

Keep in mind that your lawyer will want his payday, too.

He'll take his cut and expenses off the top.

Your medical insurance likely has a right of reimbursement.

What's left goes to you.

"My medical insurance has the right of reimbursement" What does this mean? My HMO didn't cover anything. I was told that because this is no fault, that the other guy's insurance would be responsible for all my medical bills from the accident. I keep getting bills and sending them to my lawyer.

sproutlady

 

[adjusterjack]

"My medical insurance has the right of reimbursement" What does this mean?

Medical insurance plans often have a provision that allows the insurance company to be reimbursed out of a claim settlement or award for any treatment that the insurance company pays for.

My HMO didn't cover anything. I was told that because this is no fault, that the other guy's insurance would be responsible for all my medical bills from the accident.

"I was told" is one of the most dangerous phrases in the English language. People who "tell" you things are often clueless.

While it's quite possible that your HMO plan doesn't cover treatment necessitated after an auto accident I wouldn't take anybody's word for without reading it personally in the plan policy or contract.

I suggest you do that.

 

[SPROUTLADY123]

Medical insurance plans often have a provision that allows the insurance company to be reimbursed out of a claim settlement or award for any treatment that the insurance company pays for.



"I was told" is one of the most dangerous phrases in the English language. People who "tell" you things are often clueless.

While it's quite possible that your HMO plan doesn't cover treatment necessitated after an auto accident I wouldn't take anybody's word for without reading it personally in the plan policy or contract.

I suggest you do that.

Will do and thanks much

Sproutlady

 

[SPROUTLADY123]

Medical insurance plans often have a provision that allows the insurance company to be reimbursed out of a claim settlement or award for any treatment that the insurance company pays for.



"I was told" is one of the most dangerous phrases in the English language. People who "tell" you things are often clueless.

While it's quite possible that your HMO plan doesn't cover treatment necessitated after an auto accident I wouldn't take anybody's word for without reading it personally in the plan policy or contract.

I suggest you do that.

I just called my insurance company. They paid the nursing home. $11,500. I said what??

I"m going to call my lawyer because I don't know what else to do.

sproutlady