F. The Serious Injury Threshold
Jurisdiction | New York |
F. The Serious Injury Threshold
1. The Statutory Requirements
To bring an action for personal injuries and loss arising from an automobile accident, a plaintiff must suffer and prove a "serious injury" under Insurance Law § 5102(d). That statute provides nine categories of "serious injury":
(1) death; (2) dismemberment; (3) significant disfigurement; (4) a fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; or (9) a medically determined injury or impairment of a nonpermanent 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 ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.537
These requirements apply only where both parties are "covered parties"—that is, both are covered by no-fault insurance. If the action is against a noncovered party—for example, a municipality (negligent design or maintenance of the highway)—the injured person need not plead or prove a serious injury as a threshold requirement to a recovery. The plaintiff must, however, plead and prove negligence and proximate cause, as in any other personal injury case. A motorcyclist is not a covered party under the no-fault law. Thus, a motorcyclist need not prove that he sustained a serious injury as a threshold requirement to a recovery.538
When a plaintiff establishes that an injury constitutes a "serious injury" under § 5102(d) of the Insurance Law, he or she can seek recovery for all accident-related injuries, not merely the serious injury.539 Conversely, without a "serious injury," the plaintiff, subject to the caveats above, cannot maintain a cause of action, or recover for any accident-related injuries.
The serious injury threshold therefore has immense import to the parties litigating automobile crash cases. Plaintiffs' counsel should determine whether the client's injuries meet the serious injury threshold before accepting the case. It is unlikely that the client will receive any meaningful compensation without a qualifying injury. Plaintiffs' counsel should advise their clients of the serious injury threshold, and the difficulties in meeting that threshold in particular cases.
Defendants, of course, view the serious threshold as a potential victory on summary judgment. And, at the very least, the serious injury threshold, can lead to a defense trial verdict or a significantly lower award.
Plaintiff's counsel should expect summary judgment threshold motions on cases involving herniated disks, preexisting injuries, soft-tissue injuries, and injuries involving subjective determinations such as consequential limitations. We therefore discuss below rulings in these and the other serious injury categories.
"Serious injury" threshold questions are an issue for the court and the jury.540 This section sets out key issues and decisions relevant to each serious injury category outlined above.
a. Death
The main issue litigated in death cases is the causal relation of the death to the accident. For example, if a person bruises his lower leg, leading to an infection and clot formation, and the clot then travels through the blood system to the lungs, causing death, the question that requires medical proof is whether the death was causally related to the original trauma.541
b. Dismemberment542
Dismemberment, for purposes of this category, as it is not statutorily defined, should mean an amputation of a part of the body.543 It could also mean a mangling mutilation of a part of the body, as it is also medically defined.544 Also, there is no need to show that the dismemberment is significant or consequential.
As so defined, this category clearly overlaps the permanent loss of use of a body organ or member...
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