Articles Posted in Insurance

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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.

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Where is there no liability (on the part of the premise owner or operator)? Some facilities require patrons to sign waiver clauses or exculpatory clauses before partaking in the activities they offer. Whether these clauses will apply is fact dependent.

The General Obligations Law section 5-326 explicitly voids certain exculpatory clauses. It specifically names “pools, gymnasiums, places of public amusement or recreation” and also “similar establishments”. Here is the wording of the statute:

“Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”

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