Central New York Injury Lawyer Blog

News reports say that a driver carrying 3 passengers in Sennett crashed after swerving to avoid a deer. A 27-year-old Auburn female passenger was killed and four others were injured in the collision. The car struck a culvert, rolled over several times, and ejected three of the passengers. It seems that all of the passengers suffered fairly serious injuries.

These were young people -- late teens and early twenties. As the father of several kids that age, I can say that the parents are living my worst nightmare.

Finding enough insurance to fully cover all the injuries will be a challenge. To have the best shot at getting sufficient coverage, the passengers or their families should promptly retain a New York car accident lawyer to fully represent their interests, which includes investigating all potential insurance coverage.

Here's a short-form summary of what these unfortunate car accident victims are entitled to: All the injured, including the driver, will be entitled to no-fault benefits (up to $50,000 in combined lost wages and medical bills). The no-fault applications should be filed with the insurance carrier of the car within 30 days of the accident.

In addition, the passengers will be entitled to bring a claim against the driver and owner of the vehicle for bodily injury compensation beyond no-fault, including any additional lost wages, medical expenses, and pain and suffering.

But there probably won't be enough insurance coverage to fully compensate the victims. That's why the passengers, through their New York car accident lawyer, should investigate whether there is any "hidden" insurance (called "supplemental underinsured motorist coverage) in their own motor vehicle insurance policies, or in those of relatives who reside with them.

The family of the deceased passenger can bring a claim for no-fault "death benefits", and may also want to consider a wrongful death action to recover for the conscious pain and suffering of their loved one before she died, and for any economic loss to those the decedent may have been supporting.

Car accidents like this one are sad, life-altering events. Nothing can undo the harm, but promptly seeking out the right insurance coverage can avoid making a very bad situation even worse.

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 Car Accident Lawyer
Michaels & Smolak, P.C.

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

A house violently exploded in Whitesboro, Oneida County today, killing an elderly woman, and strewing house debris in all directions. Neighbors say they smelled gas before the explosion. State officials, and the National Grid, are investigating the cause of the explosion.

From my experience representing victims of house explosions caused by gas, including a 2005 house explosion in Oswego County that injured 9 and killed one resident, this appears to be a typical gas-fueled explosion. Gas explosions in homes are typically violent, demolishing the home and strewing debris many feet in all directions.

From a liability perspective, the gas provider, or those who installed the gas-fueled appliances, or, if the house is rented, the landlord, may be held liable for the explosion and resulting injuries or death. It all depends on what went wrong. Did the resident receive proper warnings about the smell of gas, what it meant and what to do? Was the gas-odor properly added and mixed into the gas? Where did the leak start, and how? Were the gas-fueled appliances installed correctly?

The only way to answer these questions, and thus to find the culpable party or parties, is through a thorough and early investigation by experienced experts. The evidence gets "cold" early in cases like this, so there is literally no time to waste.

Unfortunately, in many gas explosion cases, the investigation conducted by public officials proceeds without the victim's family having any representation by a lawyer or experts hired by that lawyer. These public officials often work hand in hand with the gas supplier, landlord, or other persons that might be interested in exonerating themselves. The result is that crucial evidence that could help the victim or her family prove her case is sometimes overlooked, or worse, destroyed or hidden. That's why a gas-explosion victim's family should retain a New York gas explosion injury lawyer immediately.

And by the way, if you smell gas in your home, get out of the house, and get others out, immediately. And don't light anything, turn on any switches, or even dial a phone from inside the home. The smallest spark could ignite the dangerous mix of oxygen and gas trapped in your home. Go to a neighbor's house and from there call the utility company or whoever supplies your gas.

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

The Syracuse Post Standard reports that, after the fatal series of New York bus accidents this year (see my prior blog posts below), New York State troopers, and Department of Transportation officials, started cracking down on bus safety violations using, as a weapon of choice, surprise roadside inspections. The result? 530 bus drivers and 460 non-compliant buses have been removed from our roads for safety violations. Twenty two buses were inspected within Onondaga County alone, of which three were removed. Two of these were Greyhound buses.

What kind of violations are we talking about? Minor things? Hell no. How about one bus with 20 percent of its brakes out of adjustment. Or a driver failing to keep a week's worth of driving records (these are required to show that the driver has taken legally mandated "times off" from driving, which avoids the risk falling asleep at the wheel).

Does this kind of law enforcement work? You bet. The crackdown costs the bus industry money. It becomes cheaper for them to simply comply with the safety rules. It no longer "pays" to cut safety corners. And you and your family are safer. Which of course means that New York motor vehicle accident lawyers like me get fewer bus accident cases, which is absolutely fine with me, thank you.

Prior related blog posts:

NY Bus Accident Lawyer Update on Whitney Point, NY Tour Bus Accident

Cortland NY Tour Bus Accident: NY Lawyer Comments

Central New York Bus Accident Lawyer On Seneca County New York Thruway Bus Accident

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 Motor Vehicle Accident Lawyer
Michaels & Smolak, P.C.

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

I ran across a fellow personal injury attorney's blog post pointing out that only one state, Oregon, requires attorneys to be covered by malpractice insurance. When you think about it, it's amazing the other 49 states, including New York, do not require attorneys to carry malpractice insurance, especially personal injury lawyers who handle multi-million dollar claims for their severely injured clients. Can you imagine a surgeon not carrying malpractice insurance? Unheard of. Lawyers make mistakes, too, and their clients should be protected from that, just as doctors' patients are.

I am not sure whether we need a law requiring all New York lawyers to carry malpractice insurance. But I do think we need, at the very least, a law requiring full disclosure. I think all uninsured New York lawyers should be required to disclose, on their letterhead or in some other prominent place, "we do not carry legal malpractice insurance". Why? Because most clients see lawyers as "rich" professionals, and assume they have adequate insurance coverage, just like doctors do. If they knew the lawyer they were about to hire was "bare", they might decide to choose another lawyer who is covered.

Here at Michaels & Smolak we sue lawyers for legal malpractice in New York. From our experience, we know that it is tough to collect on a judgment against an uninsured lawyer. These lawyers have no insurance for a reason; they can't afford it because they are already in financial straits. Usually, they have multiple debts or judgments against them, little or nothing in the way of assets, and they may file for bankruptcy to protect themselves from their malpracticed clients' lawsuits. We have seen this happen many times.

This is just not fair to the client, who never suspected she had hired an uninsured lawyer. That's why I'm for full disclosure. My two cents!

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 Legal Malpractice Lawyer
Michaels & Smolak, P.C.

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

Kudos to SU's Public Relations students, who have launched a campaign to dissuade their fellow students from texting while driving. Imaginative campaign, too. They are distributing "thumb bands" (think those ubiquitous yellow "LiveStrong" bracelets, but thumb size), with the word "pause" imbedded on them, to remind students not to employ that digit, or any other, on the smart phone while driving.

The campaign will be featured at Friday night's Virginia v SU football game at the Carrier Dome, where the thumb bands will be distributed, and students will be invited to jump online with their smart phones where they can pledge not to text while driving.

As I have blogged about many times before, driving while texting is even more dangerous in many ways than drinking and driving. In my job as a Syracuse and Central New York car accident attorney, I personally have noticed a big increase in the number of cross-over and rear-end collisions due to young people texting while driving within the last few years. National statistics bear out my personal observations; according to the National Highway Traffic Safety Administration, about 20 percent of crashes involve distracted driving, including texting, and most of these are drivers under 20 years old.

And by the way, texting while driving is also against the law in New York!

Thanks Newhouse students for getting on this issue in such a creative, fun way.

Related blog posts:

Syracuse New York Car Accident Accident Lawyer --- "Texting While Driving Kills!"

Driver Distraction Caused Minetto NY Car-On-Mororcycle Crash

How To Minimize Your Injuries In A Rear-End Auto Collision

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 Car Accident Lawyer
Michaels & Smolak, P.C.

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

You should never settle a New York personal injury case until you have let enough time go by so that you are fully aware of all your injuries, and the full extent of them. It is not uncommon for New York personal injury lawyers to wait a year or more before even making a settlement demand; they want to see where the injury "ends up" before they settle. That's because once you settle you generally can't go back for more money, so you have to be absolutely sure you know the full extent of your injuries before settling.

But let's say you were not so prudent. Let's say you got into a car accident and suffered a neck injury. Instead of hiring a lawyer, you settled your case on your own with the insurance adjuster for a small amount of money. As part of the settlement, you signed a "release" that said you were releasing the at-fault driver, and his insurance carrier, from any and all liability for all injuries "known and unknown" that were caused by the car accident.

After you sign, and after you get the settlement money, you start noticing pain in your lower back. The back pain gets worse and worse, and your doctor tells you it was probably caused by the car accident. The doctor is recommending surgery on your back.

You want to undo the settlement, because now you feel the small amount of settlement money is not nearly enough to compensate you for a severely injured back.

Can you undo the release ("rescind" it in legal terminology)?

The answer is a resounding . . . . maybe. The legal grounds for undoing it is called "mutual mistake". To undo the agreement, you will need to prove that both you and the insurance adjuster assumed the neck was all that was injured, and that you both meant to strike a deal only regarding that injury, no matter that the release speaks of both "known and unknown" injuries.

In deciding whether the release was intended to cover only the known injury, that is, the neck injury, and not unknown injuries, like your back, a jury will be allowed to consider all of the facts and circumstances of the settlement, including the amount, the relationship of that amount to the your injuries, the language of the release, how long after the incident the release was signed, whether you were examined by your own doctor before you signed, whether you had been examined by a doctor on behalf of the insurance company, what the insurance adjuster said to you about your injuries and about the release, and several other factors, which are all set forth in New York Pattern Jury Instruction 4:11.

Undoing a release is hard. It is far from a sure bet. But it may be worth a try.

Think about this, though: You would never have gotten yourself into this mess if you had just hired me before you settled. Don't make the same mistake twice. Get a good lawyer to help you undo the settlement.

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

You should never settle a New York personal injury case until you have let enough time go by so that you are fully aware of all your injuries, and the full extent of them. It is not uncommon for New York personal injury lawyers to wait a year or more before even making a settlement demand; they want to see where the injury "ends up" before they settle. Once you settle, you generally can't go back for more money, so you have to be absolutely sure you know the full extent of your injuries before settling.

But let's say you were not so prudent. Let's say you got into a car accident and suffer an insignificant neck injury. Instead of hiring a lawyer, you settled your case on your own with the insurance carrier for the at-fault driver for a small amount of money. As part of the settlement, you signed a "release" that said you were releasing the at-fault driver, and his insurance carrier, from any and all liability for all injuries "known and unknown" that were caused by the car accident. After you sign, and after you get the settlement money, you start noticing pain in your lower back. The back pain gets worse and worse, and your doctor tells you it was probably caused by the car accident. The doctor is recommending surgery on your back.

You want to undo the settlement, because now you feel the small amount of settlement money is not nearly enough to compensate you for a severely injured back. You re-read the release you signed. It clearly says you release the at-fault driver and his insurance carrier from liability for ALL injuries KNOWN AND UNKNOWN that stem from the car accident.

Can you undo the release?

The answer is a resounding . . . . maybe. The legal grounds for undoing the release under these circumstances is called "mutual mistake". Even if the release says you are releasing the defendant from liability for "all injuries" both "known and unknown", if both parties assumed that that the neck injury was the only injury, and they meant to strike a deal only regarding that injury, then there was a "mutual mistake" as to what the total injuries in fact were, and the release can be undone ("rescinded" in legal terms).

In deciding whether the release was intended to cover only the known injury, that is, the neck injury, and was not intended to cover even unknown injuries, like your back injury, a jury will be allowed to consider all of the facts and circumstances existing at the time the release was signed, including the amount of the settlement, the relationship of that amount to the your injuries, the language of the release, how long after the incident the release was signed, whether you were examined by your own doctor before you signed, whether you had been examined by a doctor on behalf of the insurance company, what the insurance adjuster said to you about your injuries and about the release, and several other factors.

All these factors are set forth in the New York Pattern Jury Instruction 4:11. It's not a sure bet, but it might be worth a try. But, hey, you would never have gotten yourself into this mess if you had just hired me, or another good New York accident lawyer, before you settled. Don't make the same mistake twice. Get a good lawyer NOW.

Sixteen-year old Phoenix football player Ridge Barden died from a massive subdural hematoma, or in laymen's terms, lots of blood on the brain. As the father of a 15-year old boy, the horror and grief of the Barden family is tangible to me. My deepest sympathies go out to his entire family, including his football family.

The damage was caused by helmet-to-helmet contact during a football game between Phoenix and Homer High School in Homer last Friday. The injury, and death, appears to have resulted from a single impact during the game.

This tragic death comes at a time when brain injuries and concussions suffered in youth sports, especially football, are under scrutiny. A lot of people are asking, "are we doing enough to protect our young athletes' heads"? Evidence is emerging to suggest that the helmets players use may not be enough to protect them from serious injuries, despite what some helmet manufacturers want you to believe. (I blogged last January about false claims made by helmet manufacturers that their latest models have reduced the risk of concussions).

Most high schools send their football helmets out to be reconditioned every year, and they have to pass a safety inspection before the season begins.

Is a lawsuit possible in a case like Ridge Barden's? Possible targets of a lawsuit would be: The high school; the helmet manufacturer and the helmet reconditioner.

Assuming the helmet was not defective, in my opinion as a New York personal injury lawyer, no one can, nor should, be sued (please, no one take this as legal advice --- all cases are unique and all facts must be examined before a binding legal opinion can be rendered). A lawsuit on these facts would generally be barred by a legal doctrine known as "primary assumption of the risk". This rule, as articulated repeatedly by New York courts, provides that "by engaging in a sport or recreational activity, a participant is deemed to have consented to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation".

Football players, and their parents, know, or should know, that there is a risk, however slight, that they may be seriously injured or die in a sport, such as football, that involves forceful head-on-head contact, albeit with helmet protection. They knowingly, and willingly, accept this risk. The sport has so many benefits --- character building, conditioning, learning to work as part of a team --- that we are willing to accept the risks.

And we should be thankful for this assumption of the risk rule. But for this rule of law, there would be no high school football at all --- lawsuits would shut down the whole sport.

Don't get me wrong --- lawsuits are warranted in some sporting accident cases. As I have explained in previous blog posts, not all sporting injuries are caused by the inherent and assumed risks of the sport (see my prior posts, "What Is A Good New York Sports Injury Case?" and "Assumption Of Risk Doctrine Won't Protect Ski Resort For Falling Chairlifts"). But where the injuries flow directly from one of the know, inherent, risk of the game, all we can, and should, do is grieve the loss of a beautiful young athlete, son, brother, friend and teammate.

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

Guess what? Your Central and Syracuse New York Accident lawyer/blogger has a life (I mean, outside of law). So for today's blog, I am giving my readers a peek at my life.

I love children, all children really, but especially my own. Here's a picture of me volunteering with Boys & Girls Club kids in Geneva --- taking them all for a swim (I do this Friday's after work from November through May).

Now below is a picture of me with my own kids. These kids (Sebastian, 15, and Nico, almost 13) are the best kids on the planet (am I biased?), and not only that, they are stellar students. They became top-notch readers when they found the Harry Potter series years ago. So we are big-time indebted to Harry and his pals.

Ever since Universal Studios opened The Wizarding World of Harry Potter, the boys have been just dying to go. And my wife Alejandra and I have been dying to take them. But it is just too jam-packed with other kids during the school holidays.

Solution? Take them when other kids are in school. Play hooky. Break the law (a little)! It's their reward for many years of stellar academics, and just being great kids.
Universal Studios here we come! Yes, we are playing hooky! Yes, they will miss school for a week! Yes, we have got the assignments with us!

I won't be blogging for the week. Until we meet again, fellow muggles . . . .

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

Ok. Maybe I'm just a little picky. But I want people who drive down roads, at lease ones my family and I frequent, to be able to see. This might be due to a professional bias --- I am a Central and Syracuse NY car accident lawyer who actually knows, loves, and has represented, many victims of Central New York car crashes.

Yeah, I know, I'm just a chronic complainer, at least that's what the New York Department of Motor Vehicles (DMV) must think of me. I assume that's the case because, according to a new DMV proposed regulation, you don't even have to prove you can see to get your driver's license renewed in New York. Under the DMV plan, drivers would merely have to "certify" that they meet vision requirements. Talk about the fox guarding the hen house . . .

But not so fast DMV. Apparently, I'm not the only picky guy in town. Your decision to toss out the vision test requirement is under fire. County clerks and state legislators are aghast. When they read the news, they must have questioned their own eyesight. They then scratched their heads and heaved a collective, "WHAT??!!! The noise then reached the Governor's office, which announced Friday it will ask doctors to review the plan.

The DMV claims its decision was not "blindly" undertaken, but rather was reached because there is "no evidence that links poor performance on an eye test to getting into accidents". This sriikes me as odd, to say the least. I mean, if you can't see that pedestrian at 100 feet, how are you going to stop for her?

I suppose there is also no evidence that going to law school actually makes you a better lawyer. But --- here I go again --call me old fashioned -- wouldn't you rather have a law school graduate represent you?

Amazingly, six states already allow license renewals without eye exams. If you ask me, those states need to have their eyes --- and brains --- examined.

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