Lawsuits for Pain and Suffering
While the law ensures that your medical expenses and lost wages will be compensated regardless of the type or extent of the injury, you may only sue and recover for your pain and suffering under No-Fault laws in New York if you have sustained "serious injury." Under the law, a "serious injury" is any of the following situations:
- Death;
- Fracture or separating of a bone;
- Significant disfigurement with visible scarring;
- Loss of a limb;
- Loss of a fetus;
- Permanent loss or use of a body organ, member or system involving persistent pain;
- Permanent consequential limited use of a body organ or member;
- Significant limited use of a body function or system or an impairment of a non-permanent nature that prevents the victim from conducting daily activities for at least 90 days during the 180 days immediately following the accident.
These conditions must be medically proven. Your complaints about your injuries alone are not sufficient; rather, expert medical testimony and medical documentation are required to pursue a lawsuit.
The Law Offices of Jonathan B. Nelson, PC will vigorously pursue compensation for pain and suffering. Many injuries suffered in car accidents are soft tissue injuries, which are injuries to the neck, back, muscles, ligaments, nerves, etc. It may take some time before it becomes evident that a soft tissue injury is a “serious injury” as required by law to obtain pain and suffering compensation. While waiting for the injury to be treated and observed over the length of time required for accurate diagnosis as to whether it is a qualifying “serious injury”, The Law Offices of Jonathan B. Nelson, PC will meticulously assist with the other aspects inevitably involved in obtaining compensation for a car accident injury such as filling out insurance forms, obtaining medical records, and advocating your case before the insurance company.
Accident Settlement and Litigation
While you should be able to obtain compensation for all of the expenses associated with your motor vehicle accident by going through the normal insurance claims process, in some cases litigation may be necessary to obtain your full suite of rights.
Generally, New York state law allows a person to bring a lawsuit in the state courts to recover property damage and medical costs, emotional and physical pain and suffering, property damage, and other economic costs. Because litigation is a time consuming process, and can involve considerable expense, The Law Offices of Jonathan B. Nelson, PC will do everything possible to settle your case out of court for an amount that fairly compensates you for your injuries, pain and suffering, and economic damages.
If after consultation with you, settlement does not meet your criteria for fair compensation, The Law Offices of Jonathan B. Nelson, PC will proceed with the lawsuit as a zealous advocate of your rights under New York law. The following is some barebones information on the settlement and litigation process.
Determining the responsible party
While the most common responsible party to sue for compensation is the at-fault driver, it is by no means the only party available. In many cases, the at-fault driver may not be in a position to pay anything even if you were to prevail in court. In these cases, The Law Offices of Jonathan B. Nelson, PC can look for other parties.
For example, if the person who caused the accident was the driver but not the owner of the car, the car’s owner may be responsible for your injuries and economic damages. If the driver causing the accident was legally drunk at the time of the accident, you may be able to bring what’s called a “dram shop suit” against the owners of the bar who served the driver if it can be proven that he was visibly impaired when served. If your accident was caused by an obstruction from a construction site or a car defect, you may be able to sue the construction contractor or the automobile manufacturer responsible for your injuries. If you were hit by the driver of a commercial truck, you may be able to sue the owner of the trucking company under the doctrine of “respondent superior” if it can be proven that the truck was violating New York state road laws.
Personal Injury Settlement
A personal injury settlement can be achieved before, after, or during the process of a lawsuit. It can even take place at the “final hour”, just before the case is turned over to the judge or jury for their final verdict. Settlement is almost always the best course of action for those anxious to leave their traumatic event behind them, payoff their expenses, and get on with their lives. The Law Officers of Jonathan B. Nelson, PC will vigorously negotiate with the responsible party on your behalf and before making any decisions, propose the settlement terms to you the client. Settlement is a tricky process that takes cunning, experience, and patience.
The amount of your settlement can vary drastically depending on the skill of your personal injury lawyer and we at The Law Offices of Jonathan B. Nelson, PC have vast experience settling claims. Once a settlement is reached, recovery of monies from the responsible party can be swift and the process fairly easy.
In an auto accident settlement, you will agree to drop your rights to a lawsuit in exchange for an agreed upon amount of money. The settlement can be tailored to best fit with your disability and long-term financial needs or to take advantage of certain tax benefits. The Law Offices of Jonathan B. Nelson, PC can discuss how to structure a motor vehicle accident settlement for your particular situation.
Litigation
If settlement with the responsible party does not come to fruition, either because the other party’s offer is too low or they are too slow to pay, The Law Offices of Jonathan B. Nelson, PC will marshal its resources and expertise to endeavor to win your trial. Whether the case is against a government agency, insurance company, the driver of the vehicle in which you were a passenger, or the owner of another car, we will handle every step involved in litigating your case before the New York State courts.
Special issues that may affect Liability
Governmental Immunity – This is a concept in our common law legal system inherited from England that a government cannot be sued unless it gives permission. When governmental immunity is invoked, the government is seeking to bar a claim by a private individual. In the case of car accidents, a typical case might be that a municipality claims immunity for injuries caused by one of its vehicles to a private citizen. Governmental immunities are full of exceptions. In most cases governments allow claims by citizens for accidents involving government owned vehicles.
However, if the collision occurred while the driver was carrying out his or her official duties, the government may require the injured person to show that the driver was especially negligent or reckless before it considers the claim. Governmental immunity is most often strictly applied when a collision occurs with an emergency vehicle that had its lights and/or sirens on. Making a claim against a government for a collision with a government emergency vehicle that was on its way to an emergency requires a highly experience personal injury attorney. Contact us at The Law Offices of Jonathan B. Nelson, PC if you are involved in such a scenario.
Owner Liability – Special issues may arise if the driver of a car owned by someone else injures you. If the driver had the owner’s permission to drive the car, the owner may be jointly culpable for any injuries caused by the driver’s negligence.
Employer Liability – Special issues may arise if the driver of a commercially owned car injures you while carrying out duties related to the employee’s job. If it can be proven that the employee- driver’s actions were consistent with his or her position, the employer may be jointly responsible for any injuries or property damage. Litigation can be complicated if the owner contradicts the employee’s claim that the accident occurred while he or she was carrying out official company duties.
Cell Phone Usage –In some cases, the owner of a car driver by an employee may be held jointly liable if the employee just before causing an accident was talking on a cellular phone regarding a work related matter and the employee was reasonably required to take calls while out on the road. This is a fairly new argument raised by those injured in car accidents and is not appropriate in every situation.
Typical Litigation Expenses
Pre-Trial Expenses – Pre-trial expenses, or those in contemplation of trial, are normally the least expensive part of the lawsuit. During this stage, most of the expenses are incurred as a result of preparing and filing legal documents, questioning witnesses (depositions), and responding to requests filed from the defendants lawyer. Many cases do not go to trial and are settled before a trial date is ever fixed.
Trial Expenses – The trial expenses, or those expenses incurred when a case is definitely going to trial, often dwarf the expenses spent pre-trial. The largest expense involves having to pay expert witnesses and doctors to testify as to the cause of the accident, the nature of the injuries etc. Doctor’s testimony fees can range from $3,000 to $5,000 with occasional charges in the $10,000 range not being unusual.
Examples of other typical pre-trial and trial expenses include:
- Filing Fees
- Process servers
- Investigations
- Medical records
The Law Offices of Jonathan B. Nelson, PC does everything possible to limit expenses. We understand the financial burden and uncertainties involved in a lawsuit and always try to settle cases for favorable amounts before they reach trial. However, should a trial be necessary, our experience and efficiency at getting things done will help minimize expenses to the least amount possible.
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