In New York, passengers and drivers of motorcycles are not covered by no fault. The good news is that if you’re injured in a motorcycle accident, you don’t have to meet the serious injury threshold. Unfortunately, it also means that your medical bills will not be covered by any of the car or motorcycle insurance companies related to the accident. Your medical bills will have to be paid through your private health insurance, Medicare, or Medicaid.
The only time this would be different is if you are a pedestrian hit by a motorcycle. In this instance, your medical bills would be covered by the no fault coverage of the motorcycle. This is subject to a $50,000 limit.
Who decides if my injury is “serious”?
A claims adjuster, a judge, a jury, a second judge, then to a 3-judge panel. Then, maybe, just maybe, a panel of 7 more judges.
Whether or not your injury is “serious” is first examined by a claims adjuster. Your case will settle much more quickly if it is obvious that you have met the threshold. To meet it, you have to fit into one of the below categories:
- Significant disfigurement
- Loss of a fetus
- Permanent loss of use of a body organ, member, function or system
- Permanent consequential limitation 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 180 days immediately following the occurrence of the injury or impairment.
Some of these categories are obvious, such as death and fracture. Some of them are much less so. What does it mean to have sustained a “Significant limitation of use of a body function or system” or a “Permanent consequential limitation of a body organ or member?”
No one really knows. When the law was passed, this is all the legislature gave us. The law was written in 1977, before the existence of MRIs. So common injuries such as ligament tears and herniated discs didn’t exist. (They existed, but they didn’t show up on X-rays).
Since 1977, judges have had to figure out what constitutes a serious injury. It’s important to hire an experienced injury lawyer to see if your case will qualify.
If the claims adjuster assigned to your case determines that your injury is not “serious”, she may decide to have the insurance company lawyer file a motion to dismiss your case. This would be decided by a judge. Even if a judge deems that your case should not be dismissed, the issue would then be raised at trial, assuming the case doesn’t settle.
If your case goes to trial, your lawyer would have to convince a jury that your case meets the serious injury threshold. Even if the jury agrees with your lawyer, the issue would then be raised to the attention of the trial judge in what is called a “post-trial motion.” The trial judge is usually different than the judge who heard the motion pre-trial.
If the trial judge also agrees that your injury is “serious,” two things can happen. The case could be resolved there, or the insurance company could appeal the case. It would then land in the appellate division that corresponds to your geographic location in New York. Your case would then be decided by a three-judge panel. If the three-judge panel agrees that your case is serious, the case could end there. The jury’s decision would stand.
However, the three-judge appellate panel might decide that the trial judge had it wrong, and your case could be dismissed. Or, if the appellate panel decides that your case did meet the serious injury threshold, the insurance company could attempt to appeal it further to the New York State Court of Appeals, the highest court in the State. This court only takes about 100 cases per year and it is extremely unlikely that they would take up a case on this issue. There have been a few cases on the serious injury threshold that have been decided by this court. However, it is unusual. Generally, the appellate division has the final word.
As you can see, the world of the serious injury threshold is complex, and can take many twists and turns. If you’ve been injured in a car accident, it’s imperative that you speak with an experienced personal injury car accident lawyer who can help you navigate this serpentine path.