Articles Posted in Insurance

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Though our country has gone through a turbulent time with the recent election, we understand that many have become frustrated and upset with even discussing the topic of government and politics.  However, it has come to our attention that certain elected government officials have put forth a bill which would severely curtail the rights of all citizens and reduce our access to the Court system as well as the right to receive fair and adequate damages for serious injuries.

This week, the House will vote on a number of bills that will make it difficult for accident victims to seek justice in our nation’s courts. If these bills pass, it will make it nearly impossible for Americans, who are injured in accidents, and their families to pursue legal action. The so-called “Protection Access to Care Act of 2017” [H.R. 1215] will rig the system against us by allowing insurance companies and big corporations to prevail.

You can view the details of the bill by clicking on   HR 1215 Bill.   As you will note, the bill, sponsored by big business and the insurance lobby, sets a cap of $250,000 for all claims of pain and suffering for any person bringing a Health Care Lawsuit.  Such a lawsuit will include all claims of medical malpractice, nursing home negligence and any other claim involving any other health care provider.  If we stop for just one moment and think about this.  An elderly woman who is caused to sustain serious and permanent bed sores while in a Nursing home and suffers for 2 years in awful pain, undergoing debridement (scraping of the necrotic skin) procedures will be limited to $250,000.00 in damages.  A child who suffers a loss of oxygen due to delay and error by the doctor and nurses while being delivered and is rendered handicapped and special needs for the rest of their life; will be limited to $250,000 for their pain and suffering.

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In July 2011 a 54 year old worker from the Bronx fell on a defective and dangerous staircase. He immediately felt pain to his knee and shoulder. He was transported from the scene and left with a knee brace and told to follow up. Over the following few weeks, he felt pain in his lower back; pain that was becoming disabling.

The client retained Leav & Steinberg to represent him for the serious injuries. Immediately after being retained, L&S set up an inspection of the premises so that we could ensure that the staircase was inspected and we would be able to prove it was negligently maintained.

We commenced litigation and after a short time, the defendant and their insurance suggested we sit down at a mediation. The client had undergone a knee and shoulder arthroscopic surgery at this point. At the mediation, they extended an offer of $150,000.00 in full settlement. Partner Daniela Henriques advised the client that at this stage the settlement was less than adequate and moreover the medical course of treatment revealed that his lumbar spine was becoming worse. We suggested he reject the offer and we proceeded forward.

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August 30, 2016 was a deadly night in Queens and the Bronx.  A tragic collision occurred on the Long Island Expressway in Queens.  According to the New York Post, the multiple fatality and multiple vehicle collision may have been caused by drag racing.  See article here.  Meanwhile, in the Bronx, a pedestrian was killed after being struck by two vehicles while crossing Bronxdale Avenue at the intersection of Bronxdale Avenue and Barnes Avenue.  The first of the two vehicles to strike the pedestrian fled the scene.  See article here.  Unfortunately, all too often in collisions like this there is inadequate insurance to compensate the injured victims and the families of the decedents.  In New York State, the minimum insurance required is $25,000 per person and $50,000 per incident.  If you own an automobile check with your insurance carrier to find out about Supplemental Uninsured Motorist coverage to protect your interests in the event you are in a collision with a vehicle that has inadequate coverage.

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summer camp
As the summer is winding down, I was thankful that my three kids will be returning home from sleep away camp this weekend.  Seven weeks of organized fun, controlled environment with loving and caring counselors and directors to make sure that my kids and others are safe.  As a personal injury lawyer, I am always concerned about the safety of individuals and was thinking of some of the recent camp cases my firm has handled.

When you sign up to send your child to camp, you are entrusting them with the duty to provide your child with a safe and reasonable environment.  Camp activities include, sports, waterfront activities, art, music, as well as many intercamp Olympics and color war.  Some of the greatest memories kids have are those made during these summers.

Yet, many camps fail to provide the most basic when it comes to reasonable care for the safety of its children.  Recently, I represented a young boy who was at a camp.  They had a banana boat ride.  Many of you may know that this is the ride where 4-5 kids sit on a banana shaped tube and a motor boat pulls the kids.  The goal was usually a fun ride along the lake.  Of course, the counselors and probably the kids, in an effort to make it more “exciting”, have the motor boat drive in a way to cause the banana boat to twist and turn in the wake and knock the kids into the lake.  Seems harmless.  Well it would be if you provided the kids with safety rules and guidelines.  What if the child sitting in the front of the boat, closest to the rope, is not given any hand signals in which to convey that they are not feeling safe or feel like they may fall forward into the rope towards the engine of the boat pulling the banana float.  The sound of the engine and the noise from the movement is such that you cant verbally communicate.  Such was the case and my client suffered a severe laceration (over 100 sutures) from his shoulder around his arm onto his forearm.  This left a lasting scar and permanent residual problems.  Leav & Steinberg, LLP was able to prove that the activity was being performed in a dangerous way with inadequate supervision and training of the counselors and a lack of communication with the campers.   Though the camp felt this was not a case, we were successful in proving otherwise and resulted in a significant award for the child and a recovery of his medical bills.

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Worker
At Leav & Steinberg, LLP we are often retained by construction workers who are injured during the course of construction, demolition or excavation work.  Under various sections of the Labor Law of New York, a worker in injured has  many legal rights and remedies to pursue to recover for pain and suffering as well as past and future loss wages.  In addition, as many times the injuries are life altering and permanent; often requiring future medical care.   For these select cases, our firm seeks to recover damages for the future medical cost the client will need.  In our ongoing effort to maximize a client’s recover, establishing a Life Care Plan for their future medical costs will allow us to negotiate a successful settlement and at trial to present competent evidence of these expenses so a jury can award both fair and adequately compensation.

The recovery of future medical expenses may seem both obvious and not necessary. Some lawyers might tell their client, not to worry they have Workers’ Compensation benefits and will or can use that for future medical care.  Others might say that the client’s private health insurance will cover them after the case is settled.  Lastly, as many client’s with permanent injuries apply for Social Security Disability which comes with both a monthly economic payment as well as Medicare, the attorney or firm will lead client to believe he or she can use Medicare and have no worries.   All the above are incorrect and without proper planning, presentation and obtaining the requisite proof a client can be without proper medial coverage for his or her accident related injuries.

The reason the options just mentioned are wrong and would lead the client to a false sense of security is because there are various laws, both State and Federal that state how a client, in a construction accident, can and should prepare and protect for future medical care.  Under present law in New York, when a client settles his or her third party lawsuit (that is a suit against someone other than their employer) while injured on the job, their Workers’ Compensation benefits usually end.  The reason is that under Section 29 of the Workers Compensation Law, a compensation carrier, is allowed to take a credit for the net award the client/employee receives from the third party case.  This credit creates a “holiday” in which the compensation carrier is not obligated to make payments.  For example: if an injured party settles a third-party case and nets after attorney fees, expenses and liens, $300,000.00, workers compensation will not have to pay this client any compensation benefits until he has used up that $300,000.00.  So if he was getting $30,000.00 a year in benefits at the time of settlement, he will not get compensation benefits for 10 years.  At that point the client can apply for benefits to continue but often has reached a certain age, passed away or is no longer entitled to benefits.   So advising a client that he can keep getting compensation benefits for medical is not going to be correct.

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As the Court system continues to slow down due to budget cuts, a focus on the criminal cases and an overall delay in getting to trial; plaintiff’s and defendants have been using the private mediation and arbitration process more frequently with great success.

By way of background, an automobile or premises accident in New York can take approximately 4-5 years to get from inception to a trial.  In fact when all sides agree that the legal discovery is complete and request a trial, most counties schedule the trial for 18 months out and often 24 to 36 months is not uncommon.  Furthermore, while on the trial calendar, a pre-trial conference can be so limited as the court calendar is full and each side might get 3-5 minutes to discuss the case.

The result in this delay of justice really hurts the plaintiff, the injured party, because the defendant or insurance company, can know that their ultimate obligation to pay fair and reasonable damages will not be upon them for years to come.  This results in low ball offers, and a general lack of concern for resolving claims amicably.

However, when a Plaintiff can both move the case through the court system efficiently, and also provide the defense with a clear picture of how the case will turn out; the defendant and their insurance company can and will turn to mediation or arbitration to resolve disputes.  In New York there are many services and the two primary companies are National Arbitration and Mediation (NAM) and Judicial Arbitration and Mediations Services (JAMS).

Mediation is a non-binding process where the parties mutually agree to hire a retired Judge, Court Attorney, or private attorney with an expertise in the field and reserve at least 2 hours of their time to present the case.  The mediator will receive submissions from both sides and can have a full understanding of what the case is about.  With all parties participating and attending, the mediation can often result in a settlement. If not, the parties often learn of the weaknesses in their case and can then reconsider settlement options or prepare for the trial in a different format.  As I have experienced in handling over 200 mediations, you can never waste your time as you will always gain some advantage for your client; whether an offer or more insight as to the defense position.

Should the parties feel that full resolution can be placed in the hands of the mediator, the parties can mutually agree to go to binding Aribtration in the same format.  The major difference is that here the private mediator/arbitrator will decide all issues including liability (fault) as well as the damages (value of the injury and ecomonic damages).  Such finding is binding on all parties.  Privately and without the Arbitrator knowing the parties can enter into a high-low agreement whereby they agree to a low award, a high award.  Any award between is paid and an award outside the parameters of the high low is paid at the high or low respectively.  This can give each side further confirmation of how the outcome will be.

At Leav & Steinberg, LLP we prepare each case as though it’s going to trial and often use the mediation process as a stepping stone towards future resolution.  When in the best interest of our client, we will consider binding arbitration and this has resulted in many successful outcomes for our clients without the additional delay and uncertainty of the Court system.

In just the last six months my firm has successfully mediated cases and obtained results in excess of 5 million dollars.   See our results page. 

In addition in just the last month we have arbitrated matters that have resulted in fair and reasonable awards where the case was still at least 2 years or more from trial.

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Under most automobile insurance policies, there is coverage for Uninsured or Underinsurance Coverage.  What this means is that if you are in a car accident and the car that is responsible for the accident is uninsured (unknown or carrying no insurance) or underinsured (has less insurance than you carry) you can seek to recover benefits for pain and suffering from your own automobile insurance policy.  Learn more about this coverage in New York with a New York State Bar Assocation memo. 

A sample of where this coverage is on your policy:

SUM template
Sadly, the responsibility of the insurance company to fairly and fully compensate its own insured is almost arbitrary and lacks any ability to hold the carrier responsible for acting in bad faith if they do not negotiate fairly.

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Cars are the most convenient mode of transportation across the United States. Accidents happen everyday, however, figuring out how to deal with the consequences can be difficult and time consuming. When car accident occur, not only do you have to figure out your injuries, but also those of anyone else who was involved in the accident. Figuring out who is at fault may not be an easy question to answer in the beginning, but that is only the beginning. Even when one party admits to being at fault, compensation for the other person’s injuries may not be easily received.

Take for example the case of Soriano v. Martin. Jesus Soriano (Soriano) was a driving instructor and he got into an accident with William Martin (Martin) while Soriano was working. In the first case, Martin admitted it was his fault and Soriano testified at trial that he did not receive any compensation from any source, including workers’ compensation, for his lost earnings. The jury awarded twenty thousand in damages for pain and suffering and a separate five thousand for lost wages Soriano incur while unable to work due to injuries suffered from the car accident.

The issue in the second case is whether the jury award of five thousand dollars for lost wages is valid. Under New York Insurance law, there is a No Fault Law which denies recovery for basic economic injuries under fifty thousand dollars from defendants. When you have an accident under a no-fault system, your insurer automatically pays for your damages, regardless of fault. In exchange for this guaranteed payment, you must give up some of your rights to sue the other driver involved in the accident. Basic economic injuries includes medical bills and lost wages due to the accident. The purpose of this law is to protect the defendants. In No Fault states, like New York, the first fifty thousand in economic injuries is covered by the insurance companies.

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Most residents of New York and New Jersey never had a reason to prepare for water or wind damage until superstorm Sandy came around. Now, many are checking to see whether they have insurance coverage and trying to get compensation for hotel stays, spoiled food, crushed cars, damaged floors, water logged electronics, lost business profits…the list goes on. For those who are unsure whether they have insurance coverage, the most common sources are policies that can be grouped into the following categories: commercial, standard homeowner (usually without flood coverage but with wind, fire, and water damage coverage), homeowner all risk (with a lot of exclusions written into the policy), business owner, manuscripted (for a particular loss), liability (with a separate provision for property damage), national flood insurance, and forced coverage (i.e. in mortgage situation). Keep in mind that a tenant may have coverage even if he or she does not own the building where the damage occurred and did not obtain a special policy for the area.

If you have a claim, you may want to consider the following.

  • Provide all carriers that may be involved with notice of an occurrence which could give rise to a claim. Do not assume that a carrier is on notice because someone whom you believe is an adjuster or investigator visited your property.
  • Make sure you have a full copy of the policy, including the declarations page, endorsements, riders, schedules, and forms. If you do not have a full copy of the policy, or your policy was destroyed in the storm, write to the broker, insurer, and/or opposing counsel immediately to let them know. Request that they expedite a copy to you, along with notice of all deadlines so that you may comply.
  • Review the policy carefully and diary the deadlines. Create a reminder system so that you will not miss any deadlines. If a deadline is missed, you may forfeit your claim or make it more difficult to prevail down the line.
  • Gather proof of your expenses and the value of your property, such as receipts, photographs, videos, serial numbers, and credit card statements. Retain an appraiser or request that the carrier provide one. Obtain a contractor’s estimate where applicable. Preserve and protect property where applicable. Separate damaged from undamaged goods where applicable. Prevent further damage where applicable.
  • File a sworn statement (affidavit) and proof of loss. Sometimes this must be filed within sixty days of your receipt of the demand for proof of loss by mail. The time to respond may be extended in writing by a person who is authorized to modify the contract.
  • Abide by the statute of limitations and start a suit when necessary. A fire loss in New York may be governed by a two year statute of limitations. Otherwise, you may be limited to a one or two year period to start your action. The policy may include a time limitation.
  • Remember that you may get actual cash value, replacement cost, or less.
  • Consider getting help from a public adjuster or attorney.
  • File an appeal when necessary.
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Today, the New York Legislature passed a bill that would heighten protection of motorists and their loved ones in the event they are involved in an accident with an uninsured or underinsured motorist. The supplementary uninsured/underinsured motorist (SUM) bill is identified as S.7787 (Seward) / A.10784 (Morelle). Presently, the mandatory minimum insurance required to be carried by drivers in the State of New York is $25,000.00. Although drivers may purchase additional insurance coverage, they are often unaware of this option. This bill would change the scheme in that it would automatically ensure that the SUM insurance matches the liability limit of the policy unless the motorist is made aware of the additional coverage and specifically chooses to decline it. Next, the bill will reach Governor Cuomo’s desk.