Central New York Injury Lawyer Blog

So what rights would we New Yorkers have to compensation in the event of a New York Nuclear Power Plant Catastrophe?

Let's assume that Oswego's Nuclear Power Plant suddenly broke down and started spewing out dangerous radioactivity, just like in Japan. Let's assume your family ended up sick, or dead, and that you had to move out of your home --- forever --- and that its market value was reduced to zero dollars. Can you sue the Power Plant owner? If so, for how much?

Well, I've got some bad news for you. Even though under New York common law principles you would be able to sue the power company for every penny of compensation you were entitled to for all those catastrophic losses, a not-well-known federal law trumps New York law, and would probably force you to accept pennies for every dollar you would otherwise be entitled to.

The law is called the Price-Anderson Act of 1957, and it places a damages cap on the liability of nuclear power plant owners or operators. Under this Act, the power plant owners or operators pay an insurance premium each year to create a kind of "no-fault" system for paying damages caused by nuclear accidents. The total payout available from the fund for personal injury and property loss for nuclear accidents amounts to only about $13 billion.

I say "only" because that's such a small amount of money considering the devastating, widespread catastrophic damages a nuclear disaster would unleash to hundreds of thousands of our local central New York residents and businesses. In fact, the damages that would result from a major nuclear catastrophe are estimated at more like $500 billion.

The stated intent of the Price-Anderson Act was to foster commercial development of nuclear power. But what ever happened to the free market system? Why shouldn't big power companies have to pay full dollar for catastrophes that, through their negligence, they unleash? The Act, which seems to me extremely unfair, survived a constitutional challenge in 1978 in Duke Power Co. v Carolina Environment Study Group

Who pays the price for this generous "gift" our federal government gave to the power industry? You do, of course. Should, god forbid, our local nuclear power company, through its negligence or carelessness, unleash a Japan-like disaster, none of us will get anything even close to true justice. We will be stuck with the pennies-on-a-dollar compensation provided for in the Price-Anderson Act. And as a Central New York personal injury lawyer, that both offends and scares me . . . .

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

Local news sources report that a passing motorist struck and killed a trooper as he was writing another motorist a traffic ticket on the shoulder of Interstate 290 near the town of Tonawanda.

This is every traffic cop's nightmare. And mine, too. As a Central and Syracuse New York car accident lawyer who has represented several police officers and deputy sheriffs struck by negligent motorists, I am particularly sensitive to the risks our law enforcement officers voluntarily assume every working day to protect the rest of us from law breaking motorists.

There they are, hunched over the driver's window of a stopped car on the shoulder of the roadway, within inches of the roadway itself, exposed to the risk of distracted drivers running them over. I always worry about how close some of the vehicles are passing by. These police officers risk their lives every time they write a ticket! Fortunately, most, but not all, passing motorists have the common sense to slow down and move over to the left to give the guy some space.

This case brings to the fore a new New York law, called the Ambrose-Searles Move-Over Act (effective as of January 1, 2011) that requires drivers to slow down (to 20 mph's below the posted speed limit) and change lanes if possible when approaching an emergency vehicle on the side of the road. I'll bet this is something you did anyway, right? That's because it's common sense. But until recently, no New York law required you to take this precautionary measure.

Ever seen those signs in highway construction zones that say, "Give'm a brake"? Well, when you see a traffic cop doing his job on the side of the road, slow down, and "give'm some room".

Keep cops safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

So here's another upstate New York school bus accident. This one in Victor. About 9 a.m. this morning, a Victor Central School District bus was stopped on School Street to pick up some students, with its warning lights and stop sign activated, when another Victor school bus, instead of stopping and waiting, tries to go around it, strikes it, then strikes a car stopped and waiting just ahead, and jumps the curb.

Ten people, nine of them children, were taken to local hospitals.

So here was the question I asked of my blog readers earlier today: "What the heck was that second bus driver thinking?" I mean, driving past a stopped school bus is just about the biggest traffic offense out there (that's why it's a 5-pointer), but can you believe that a school bus driver would do that?

Well, I got an answer! One of the first responders emailed me this response: "The bus drivers foot actually got stuck and lodged between the gas and the break, and she tried to avoid hitting the other bus by swerving." Thanks so much for that!

We wish all the kids, parents and driver a speedy recovery. By the way, these injured kids will have plenty of insurance coverage through the school. They need to get to process the "no-fault" claim within 30 days of the accident.To read more details about how that works, see my previous blog posts about the recent Savannah, NY school bus accident here and here.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

What do health care insurance policies, such as Excellus Blue Cross Blue Shield, and others, have to do with New York personal injury settlements? Maybe nothing. Maybe. Let me explain.

If you are an insomniac in need of sleep, you might decide to pull out your health care insurance policy and read it. I guaranty that it will put you to sleep, and probably even before you get to the part, buried deep within it, that says the insured (that's you) agrees that should you get injured through the fault of someone else, and get a settlement or a judgment against that other person, you will have to reimburse the insurer (that's them) for all the medical costs they paid for treatment of your injury.

In other words, say a dog bites you, you sue the owner, and then settle with the dog owner's homeowner's insurance for $100,000. But Blue Cross Blue Shield has paid $10,000 in medical bills related to the dog bit. BCBS will claim a "lien" or a "right of subrogation" against the settlement to the tune of its $10,000.

We New York personal injury lawyers for years fought the health care insurance lien. It did not seem fair to us that our clients, who had paid heavy premiums for their health care insurance, should have to hand over some of their settlement to them. It seemed the health insurer was double-dipping. It seemed like a hold up. New York case law, however, generally upheld the liens.

Then, last year, advocates of the injured won a big legislative victory in Albany. New York General Obligations Law section 5-335 ("GOL 5-335") abolished health insurance liens against personal injury settlements, with some exceptions. Here are the main exceptions: It did not abolish liens asserted by Medicaid, Medicare and ERISA (Employee Retirement Income Security Act) policies. Those are governed by Federal law, so New York's legislature had no power to upset those apple carts.

But nothing is simple. In the wake of GOL 5-335, several health care insurers now claim to be bonafide "ERISA"-protected policies when in fact they are not. They will try to assert a lien against your settlement even though they are not entitled to one.

Before you settle your case, your New York personal injury attorney is duty-bound to investigate whether a claimed "ERISA" health care lien is in fact valid. Experienced New York personal injury attorneys have learned where to look, and how to investigate, the validity of claimed ERISA-protected liens. There are website listings that help, but often the attorney must ask the self-proclaimed "ERISA" insurer for its "Summary ERISA Plan Description", and other documentation, to see whether it is a valid ERISA plan exempt from New York's new anti-lien law (GOL 5-335). If there is any doubt whether a health insurance policy is part of a true ERISA plan, and thus can assert a lien, court intervention may be needed.

By the way, even if there is an ERISA lien, your attorney should be able to negotiate it down. Generally, at least one third should be deducted as the health care plan's fair share of attorneys' fees.

The complexity of these lien issues is just another reason you need a good, experienced New York personal injury lawyer.

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

Let's say a doctor carelessly performs eye surgery on you. As a result of his negligence, your vision is impaired for life. You are only 30, so you have a long life of impaired vision in front of you. You hire a New York medical malpractice lawyer and take him to Court. What should fair compensation be to you for the doctor's malpractice? Well, if the impairment isn't so bad, if glasses can mostly correct it, maybe $250,000?

Now let's say the same doctor carelessly performs the same operation on you, but this time blinds you for life. Darkness surrounds you for the next 50 years. You'll never see your kids or wife again. You'll only hear them. What's fair compensation for your anguish, suffering, and loss of enjoyment of all the things a seeing person can do for the next 50 years of your life?

According to Governor Cuomo's proposed fiscal budget, $250,000. Same as if your vision had merely been impaired. That's called a medical malpractice "non-enconomic award cap" (a/k/a a "med mal cap"). It's also called a travesty of justice.

I hear you, dear reader. You just blurted out, "hey, wait a minute, before we start talking about travesties of justice, did you just say this med cap law is in the Governor's proposed budget? What the hell is a rule like that doing in a fiscal budget for the State of New York?

Good question. (My readers are smart!). Answer: a group of New York hospital and insurance lobbyists convinced him to put it there - apparently because they knew they could never get a law like that passed if it went through the normal democratic process.

If the Governor's fiscal budget passes, then the "med mal cap" passes, too. If that happens, no matter how horrendously crippled any quack-of-a-doctor might leave you, you are entitled to no more than $250,000 in compensation.

OK. Maybe I'm over-reacting. Truth be told, there's really only one problem with the med mal cap rule: It is cruelly, viciously, unjust. Picky, picky, right?

I can't help it. You see, I went to law school. And I learned a few things there. One thing I learned was that the purpose of our justice system was --- well --- to render justice. And they taught us that justice means greater compensation for greater harms, and lesser compensation for lesser harms.

Governor Cuomo is a law school graduate, but he must have skipped that class, because his one-size-fits-all $250,000 medical malpractice cap flies in the face of any notion of "justice" that has ever embraced humankind's mind since we first crawled out of caves and began holding court around camp fires.

Why doesn't the governor propose to get rid of our justice system altogether and replace it with an inquisition or something? That would save the hospitals money, too. But it would have the advantage of being more honest. A medical malpractice justice system that features an arbitrary "cap" awarding the same $250,000 to the visually impaired victim as to the blinded victim is a charade, and it is blind to justice.

Governor Cuomo is about to commit medical malpractice on our justice system. He wants to poke its eyes out. If his budget passes, medical malpractice awards will be rendered blind to justice.

But there's hope --- Democrats, who dominate the New York Assembly, are opposed to capping non-economic awards for medical malpractice, and are proposing an alternative budget that would eliminate it. Those guys didn't skip that law school class about justice! Thank God for that!

Let's keep justice in our system of justice!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

Hey, have you noticed a surge in New York bus accidents recently? Within the last few months I have blogged about several Central and Syracuse New York bus accidents. You can read those blogs here, here, and here . Then, just last week, a bus veered off Interstate 95 in the Bronx as it was returning to Chinatown (NY) from an overnight outing at a Connecticut casino. Witnesses, including survivors, dispute the driver's claim that that a truck clipped the bus before it ran off the road.

The bus was carrying Asian immigrants back to Chinatown (NY) from a casino outing in Connecticut. Fifteen of them never made it home --- they ended up dead instead. And they were just out to have some fun gambling. I'll bet they had no idea they were gambling with their lives just by climbing aboard the bus. But they were: Turns out the bus driver had a history of driving offenses so significant that his license had been suspended. But there's more; he had also served time for manslaughter and grand larceny.

Now you tell me, what kind of a bus company would hire a driver with felony convictions and a driving record the size of a phone book? Answer: A cheap, fly-by-night, profit-hungry one. You see, they can hire ex-cons with lousy driving records and suspended licenses on the cheap, which drives up their profit margin. Only problem is their customers end up getting killed. As long as they pay first, no problem, right?

My vote: Put the bus company owners in jail, after a fair trial, of course. (Don't ask me to sit on the jury, cause I'll convict them before opening statements.)

This is not an isolated, renegade bus company, either. Apparently, it is one of many that line the streets of Chinatown hawking cheap fares to Asian immigrants for overnight trips to nearby casinos and resorts.

All this makes me proud to be a Central and Syracuse New York bus accident lawyer (among other things). I'd love to sink my litigation teeth into one of those sleazy, greedy bus company owners at trial. Bring'm on!

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

In case you haven't noticed -- and gee, I sure hope you have -- I have not been blogging much lately. Why not? Take a guess: Am I Sick? Sick of blogging? On vacation? On vacation from blogging?

Nope. None of the above. I have been preparing for a Jefferson County, New York personal injury trial, which is coming up very soon. It is hard to find time for blogging about New York personal injury law all while gearing up for a New York personal injury trial. In fact, it is hard to find time for almost anything when you are preparing for a week-long jury trial. The key to putting on a good trial, to presenting your client's case well, can be summed up in three words: preparation, preparation, preparation. And that takes time, lots of it.

Two of my partners are also busy preparing for trial. While most personal injury cases these days settle out of court, some, of course, don't. The insurance company does not always want to pay a reasonable settlement. To put it more bluntly, they try to screw you! When that happens, the only way to force them to pay what's fair is to go to a jury. We just happen to have several cases right now where the insurance company won't listen to reason. Hey, when it rains it pours.

By the way, we only go to trial when the client wants to. We always give them the option of taking the less-than-reasonable offer that is on the table, or taking off the gloves and going to court.

Without meaning to disparage other law firms, I believe some of them, even good ones, don't always give their client a real choice. They pretty much decide whether to go to trial without client input.

And there are other law firms, not good ones, that never go to trial, and always take the last offer on the table. Sooner or later the insurance companies realize they are paper tigers, and then always low-ball their settlement offers to those firms. Why should they pay more when they know those lawyers will take less to avoid trial?

Whether to go to trial should be a client's choice. The lawyer's job is to give all the relevant information to the client, including what a fair settlement is, so the client can make an informed decision.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

I just read about a bicycle accident case from Texas that teaches New York riders a BIG lesson. The lesson? Preserve the evidence! Read on.

The biker recently filed a products liability suit against Trek Bicycle Corporation, the bicycle manufacturer, claiming his 2002 Trek roadbike's steering fork cracked, causing his handle bars to collapse, which in turn caused him to hit the pavement and suffer a severe brain injury. The poor guy has been in a coma ever since. (His family filed suit on his behalf). You can read about it here.

That's all I know about the case, but I can already tell you what Trek's defense will be. Either: (1) the biker misused or altered the bike, thus causing the crack in the steering fork at some time before the accident, or (2) the biker lost control of the bike, fell, and the crash itself caused the steering fork to crack and the handle bar to collapse.

If you have a curious mind, you might be asking, "how does this poor coma-stricken road biker beat trek? Doesn't he, as plaintiff, have the burden of proof? And how does he prove a defect in the steering fork made him go down if he is in a coma?

Answer: If his family preserved the bicycle without altering it and brought it intact to his bicycle accident lawyer, the lawyer can hire an expert engineer specialized in bikes to carefully examine the fissures in the steering fork, and the entire bike, for evidence of how the accident happened, and how the crack was formed. But if they tossed the bike out, or messed around with it, they will have destroyed the evidence, and they will never be able to prove the case.

Moral of the story? If you go down on your bike, are seriously injured, and suspect it was the bike's fault, don't mess with the bike! Get it to your New York bicycle accident lawyer. He'll get it to an expert engineer. That expert might even recommend that the steering fork be examined by a metallurgist, who will look with a microscope at the crack to better determine the cause. Was the metal too soft or brittle? Was there some microscopic defect in this piece of metal? If there is any manufacturing or design defect that caused this accident, Trek will be liable.

Keep safe!

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169

This Central and Syracuse New York personal injury lawyer got the boot! Yes, a client fired me! Why was I fired? Before I explain why, let me explain a little bit about the nature of what I do.

At any given time, I am handling about 100 cases. Many of those cases, however, are in the "pre-suit" stage. This means we are following the client's medical progress, but are not yet ready to make a personal injury settlement demand. Why not? Because until the client is finished treating, or has reached a maximum level of medical improvement, we don't know how much the case is worth. If the client is going to have a permanent injury, the case is worth more, and if it is a serious permanent injury, it is worth more still. Conversely, if she is going to reach a 100% recovery, the case is worth less. But the doctor can't give us a "permanency" evaluation until the client is done treating or has reached maximum medical improvement, which can sometimes take more than a year and a half.

So in many cases, there is almost nothing we can do, except collect medical records, until a year or more has gone by. Here's how we handle this with our clients: When we first meet with them, we explain this could take quite a while, depending on how their treatment goes. We explain that the doctors, not the lawyers, determine when their case is "ripe" for settlement. We even have a provision in our retainer agreement that tells the client we do not know how long the case will take and that it depends on their doctors.

So are you ready to hear why I was fired? Is the suspense killing you? Thought so. I was fired because the client thought nothing was happening in her case for the more than year I had been handling it. I wasn't doing anything for her, she thought.

But I couldn't! She was still actively treating and her doctor was unable to tell us where she would end up.

This client must have forgotten our early conversations about this. And I wish, oh how I wish, I had time to call every one of my 100 clients to remind them of this from time to time. Most do remember, and if they call me to ask the status of their case, I remind them again. And they are fine with that. The client who fired me never called to ask. She just assumed the delay was my fault. Now she will get another New York personal injury lawyer who will tell her, "sorry, we have to wait for your doctor to tell us you are done getting better".

Hey, I wish her luck. And the old expression, "you can't please all the people all the time" sure rings true today. Still, my goal is to please all my clients all the time. Maybe my striving for that goal, however unattainable, is why I can count on only one hand the number of times I've been fired.

Mike Bersani

Email me at: bersani@michaels-smolak.com I'd love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com
Central NY Personal Injury Lawyer
Michaels & Smolak, P.C.

1-315-253-3293 Toll Free 1-866-698-8169