Pedestrians are a common sight in New York, particularly in urban areas, where many residents who do not own vehicles are walking to work, to do errands, or to a bus or subway station. Others have cars but only use them unless they have to, choosing to navigate the congested streets on foot instead. Unfortunately, the presence of foot traffic on roadways designed to move vehicles along as quickly as possible places bodies in close proximity to cars and trucks. The careless or reckless behaviors of drivers can result in a pedestrian getting run over.
If you were run over by a vehicle in New York, there are a few options for obtaining compensation for the expenses and impacts of the injury you sustained in the accident. Filing a lawsuit can be one of those options, though it is not the first option available. Here is a look at when you can sue someone for running you over in New York and the other options that can provide you with compensation. The best thing you can do after being struck by a car is to contact a New York pedestrian accident lawyer at Finkelstein & Partners today.
The Legal Options Available After a New York Pedestrian Accident
According to the New York State Department of Health, pedestrian accidents are among the state’s leading causes of injury-related hospitalizations. These accidents injure 15,000 people in New York each year. Those injured in a pedestrian accident can have different methods for obtaining compensation, including filing a claim against their personal injury protection, filing a claim against the at-fault party’s liability insurance policy, or filing a lawsuit in court.
Personal Injury Protection
Pedestrians who own a vehicle and carry a personal injury protection (PIP) policy, or someone in their household does, can seek compensation through that policy. Drivers in New York must have a PIP policy with coverage of at least $50,000 to register their vehicles in New York.
This policy, also known as no-fault insurance, provides benefits such as:
- Coverage of reasonable and necessary expenses related to the medical treatment of the injury up to the policy’s limit.
- Coverage of up to 80 percent of the injured party’s lost wages as a result of the accident, with a maximum payment of up to $2,000 a month for up to three years.
- The provision of up to $25 a day for up to a year after the accident to pay for household services that the injured party can no longer perform.
- A $2,000 death benefit for the family members of a covered individual killed in a motor vehicle accident, including pedestrian accidents.
No-fault insurance does not mean that no one is at fault for causing an accident in New York. What it means is that you are generally able to seek compensation after a motor vehicle or pedestrian accident from this policy, even if you were partially or fully liable for the accident.
Some exceptions exist, however. PIP coverage is usually declined if it was discovered that the claimant was impaired by alcohol at the time of the accident, the accident occurred while the claimant was committing a felony, or the policy provider believes that the claimant intentionally caused the accident that resulted in injury.
Filing a Personal Injury Claim
Suppose a PIP policy did not cover the injured pedestrian because neither they nor anyone in their household owns a car, and the accident resulted from someone else’s negligence. In that case, they can seek compensation for their injuries through the personal injury claims process. This option is also available for those whose injury-related expenses exceeded the limit of their PIP policy, as well as those whose injuries meet the New York serious injury threshold.
The serious injury threshold in New York includes injuries that result in death, dismemberment, significant disfigurement, a fracture; loss of a fetus; permanent loss of use of a body organ, member, function, or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature that prevents the claimant from performing substantially all of their usual and customary daily activities for at least 90 days during the 180 days immediately following the accident.
Generally, the personal injury claims process begins when the injured party hires an experienced personal injury attorney to assist them with their claim. Having an attorney is not a legal requirement to seek compensation, but the services an attorney can provide are crucial in obtaining the compensation that the client needs.
The attorney and their legal team will investigate the case thoroughly to determine who was liable and the insurance resources the responsible party has that can be used to provide compensation.
Once the claimant reaches maximum medical improvement, their attorney will establish a value to their claim. Maximum medical improvement occurs when a physician determines that the claimant’s condition has stabilized and they have likely made all meaningful progress in their recovery, even if treatments are continued.
This is a good time to evaluate the claim, as it provides a more accurate picture of the medical expenses involved in treating the injury and the presence of permanent disabilities that will hamper the claimant’s quality of life and ability to earn an income in the future.
After establishing the claim’s value, their attorney will file it with the at-fault party’s insurance provider. The insurance provider will assign an adjuster to the claimant who will evaluate the details of the accident, determine the insured’s liability, and determine how much compensation is owed to the claimant.
While this seems like a fair and reasonably simple process in writing, it is important to understand that the adjuster is an employee or contracted worker of the insurance company. The insurance company is not in the business of making significant payouts to those injured by their insured. They are in the business of collecting premiums. The adjuster’s role is to reduce or eliminate the claim to protect the company’s bottom line.
The adjuster can respond to the claim in one of three ways. They can accept their insured’s liability and pay the claim. They can deny the claim but must provide a reason for the denial. Or they can offer to settle the claim for less than its stated value. Suppose a settlement is offered that does not provide enough money to compensate the claim fairly. In that case, the claimant’s attorney can negotiate with the adjuster to get them to increase the offer.
Filing a Lawsuit
In New York, you can sue someone for running you over if:
- The accident was the result of someone else’s negligence.
- You do not have a PIP policy to seek compensation from, your expenses exceed the policy’s limit, or your injuries meet the state’s serious injury threshold.
- You have submitted a personal injury claim against the at-fault party’s insurer, and they failed to compensate the claim either by paying it outright or entering into a settlement agreement with you.
A lawsuit is a legal claim filed in civil court that seeks to prove to a judge or jury that the at-fault party was liable for the accident and that you are entitled to the claim’s value. It is also a legal consequence for insurers who fail to fairly compensate claims, as litigation is expensive, time-consuming, publicity-generating, and features an uncertain outcome.
The statute of limitations for New York pedestrian accident claims is usually three years from the injury’s date. This is known as the statute of limitations, and meeting this deadline is vital to your claim’s outcome. If you allow the statute of limitations to expire, the court will almost always decline to hear your case, meaning you have lost this important right to have the ability to sue.
However, this is not the only negative impact an expired claim will suffer. As noted, the ability to sue after a pedestrian accident is not only one option for seeking compensation but also a legal consequence of an insurance provider’s failure to pay the claim. If you lose the ability to sue, the insurance provider has little reason to offer a settlement, meaning you will likely be on the hook for compensating your own expenses.
One of the many important reasons to hire an experienced attorney is that they can help keep all of the legal options available in your case open for you to use. They do this by managing the timeline of your claim to ensure that it is ready to be filed in court before the statute of limitations expires.
How Are Most New York Pedestrian Accidents Compensated?
Because of the PIP requirement for drivers, many minor injuries suffered by pedestrians are compensated by their own insurance policy. When claims reach the personal injury claims process, an estimated 95 percent are resolved through a negotiated settlement before the trial occurs.
You can settle at any time during the process, even after filing a lawsuit.
The Steps of a New York Personal Injury Lawsuit
If the statute of limitations is nearing in your claim and the at-fault party’s insurance adjuster has denied the claim or failed to offer fair compensation for the expenses and impacts of your injury, your lawyer may advise you to sue.
Here are the steps that generally occur during the court process:
- The claimant’s attorney prepares a Summons and Complaint. The complaint is a legal document that outlines the details of the accident. However, New York claimants do not have to attach a value to the claim in the complaint, as the jury will decide on the amount of compensation necessary to compensate the claim. The Summons and Complaint are filed in court and served to the at-fault party and their insurance provider, who have 30 days to file a response.
- Once the defendant has responded to the complaint, the claimant’s attorney will prepare a Bill of Particulars. This document provides more details about the injuries that were suffered and the overall cost of the claimant’s medical injuries and wage loss. It will also provide more information about why the defendant is liable for compensating these costs.
- A preliminary conference will schedule mandatory physical examinations and produce documents and other evidence to be exchanged between the claimant and the defendant.
- The claimant’s attorney will depose witnesses and obtain evidence from the at-fault party. The at-fault party and their insurance provider’s legal counsel will also collect information and witness testimony from the claimant’s side. In many cases, the defendant will order the claimant to undergo a medical examination by an independent physician to assess the severity of the injuries suffered.
- The court will select a jury for the trial. Attorneys for both sides are involved in selecting six jurors and two alternates.
- The trial will occur in two parts, with the jury first determining whether the at-fault party was liable for the injury and if so later determining how much compensation is owed to the claimant for the expenses and impacts of their injury.
At the conclusion of the case, if compensation is due to the claimant as a result of a negotiated settlement or court award, it will be sent to their attorney. The attorney will settle any medical liens placed on the award by health care providers or health insurance providers, deduct their contingent fee payment, and release the remainder of the compensation to the claimant. It should be noted that personal injury attorneys are only paid for their services if there is a successful outcome to the claim.
If you were run over in New York, explore your legal options with an experienced pedestrian accident lawyer.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.