Central New York Injury Lawyer Blog

Dear friendly insurance adjuster:

Thank you for your recent letter requesting permission to take my injured client's "recorded statement" regarding the accident your insured so carelessly caused. As a Central and Syracuse New York personal injury lawyer, I appreciate all communications with insurance adjusters that might help me resolve my clients' claims. My response is a conditional "yes". I will allow you to take my client's recorded statement only if you allow me to take your insured's recorded statement.

I really doubt, though, that you will agree to this absolutely fair proposal. I have proposed this same "swap" hundreds of times to many different insurance adjusters from all kinds of insurance companies, including yours. So far, no insurance adjuster has agreed to it. They all want to take, but not to give. Haven't they ever learned that it is better to give than receive?

If I were to ask you why you want to take my client's recorded statement, you would say (as all adjusters have always said since the mother of all adjusters first walked the planet) that this will help you "adjust" the claim, that is, figure out how much it is worth so you can settle it with me. (You would emphasis this last phrase). Gosh, that really makes me want to give you that recorded statement!

But the fact that you want a "recorded" statement rather than just an unrecorded conversation with my client indicates to me that you have other purposes. You want to "box in" my client so that your lawyers can later cross-examine him if his later testimony is even a little inconsistent with the recorded statement.

Even so, I really have no problem with this. I am not afraid of what my client might say, since he is an honest, injured client with a legitimate claim. What I do have a problem is the one-way street you insurance adjusters always pave. What's good for the goose is good for the gander, right? Taking a statement from your insured, who caused my client's injury, would also help me "adjust" the claim, that is, figure out how much we should be willing to take in settlement.

Don't take this personally, but you insurance adjusters, though you are often fine people otherwise, have a blind spot for simple fairness.

I am hoping we can settle this case for a fair amount even without recorded statements. But if we can't, I'll see you in Court. In that arena, we will both get to hear the "recorded statements" (sworn testimony recorded by the Court reporter) of both your insured and my client. It will be a fair swap!

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

A client of mine is having a very merry Christmas indeed. I already blogged about his Waterloo, New York car accident case. Guy was passenger in his buddy's car, who was stopped and waiting for traffic to clear so he could turn left into a driveway. Driver from behind, lost, looking at a map while driving, rear-ends them at full speed, causing them to flip over. Our guy ends up with a herniated cervical disc that takes him out of his welding job, for good, and requires surgery. The surgery helps, but does not rid him of the pain.

At first, there appeared to be no more than $100,000 in insurance, the policy limit of the driver/owner of the at-fault vehicle. There was no indication in the police report, or anywhere, that the negligent driver was doing anything but his own business when he rear-ended our guy. But an off-the-cuff remark by him at the scene -- about some "bovine sperm bottles" he had in his pickup truck -- tipped us off that perhaps he was working for some company that dealt in such products, even though he owned the vehicle and there was no company emblem or signage on it.

After some investigating, we turned up a California employer. The insurance carrier for the employer discloses a $1,000,000 insurance policy. Now we're talking! But still, we felt our client's case was worth more - what with all his pain and suffering, his completely altered life style, and the loss of his job.

We sued the employer and the driver. We got the judge to rule, without a jury trial, on "motion papers", that the defendants were liable and that our client had a "serious injury". Now all we would have to do was have a jury decide how much our client deserved. But just as we were getting ready for trial, and just after we made a full insurance policy limit demand of $1 million, the insurance carrier finally disclosed there was more --- another $10,000,000 excess policy!

The final result --- a $1.4 million settlement --- was obtained just the other day after a day-long mediation.

Our client is now having the merriest Christmas he has had in several years. And he is smart. He is making sure future Christmases will not leave him out in the cold. He is structuring his settlement into monthly payments that will take care of him for the rest of his life. The total amount of payments he will receive far exceed the cash value of his settlement.

So, yes, Virginia, there is a Santa Clause . . .

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

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

Five people were injured yesterday afternoon when a car hit a utility pole in Gorham, Ontario County. The accident apparently happened like this: A southbound car carrying 4 passengers on Route 245 tried to pass a vehicle, didn't see the oncoming vehicle until it was too late, and then swerved off the road to avoid a collision, striking the utility pole. Sadly, several of the victims are children.

Mistakes happen, and this driver clearly made a mistake by attempting to pass when it was unsafe to do so. Fortunately, New York car accident laws help innocent victims of careless driving recover for their injuries. And the insurance carrier for the driver (and owner) of the passing car will almost certainly be held financially responsible for this unfortunate accident.

What rights do the passengers have?

First, they each have a right to $50,000 in "no-fault" benefits from the at-fault car's insurance. This is to cover any lost wages and medical expenses.

Second, if the passengers own their own motor vehicle, or a relative who lives with them does, they might be able to get additional no-fault benefits (called "additional personal injury protection") from those other insurance policies (depending on the coverage limits in those other policies). No-fault applications must be made within 30 days of the accident.

Third, the passengers have the right to make a "liability" claim against the driver/owner of the at-fault car. A "liability" claim is for pain and suffering compensation, as well as for any medical expenses and lost wages that go beyond the no-fault monetary limit. The amount of coverage available depends on: (1) the insurance policy limit of the at-fault car (the minimum in New York is $25k per person and $50k per accident); (2) if the driver did not own this vehicle, but owns one or a relative he lives with owns one, more insurance might be available through that other vehicle's auto insurance; (3) if any of the passengers own vehicles, or reside with relatives that do, they might have some additional coverage known as "SUM" (supplemental underinsured motorist coverage).

New York car accident auto insurance is actually a complex patchwork of insurances. Only an experienced New York car accident lawyer can properly investigate all potential insurance coverage to maximize the funds available to help car accident victims recover.

We wish a speedy recovery to all the Gorham car accident victims.

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

New York personal injury cases can take weird twists and turns, sometimes for the better, and sometimes for the worse. Here's one that took a dramatic turn for the better, twice!

A client was badly, really badly, injured in an upstate New York car crash. But the at-fault driver (who was also the owner) of the car was insured for only $100,000, and all the evidence about him (where he lived, the type of vehicle he was driving, etc.) indicated he would have no significant assets beyond the insurance policy.

So I called my client into my office to give him the bad news: It looked like $100,000 was all that was available to compensate him for his terrible loss, including past and future medical expenses, a lifetime of lost wages, and a large dose of lifetime pain and suffering. You can't get water from a rock, and this negligent driver looked like a really, really dry rock.

But as I sat there with my client explaining this to him, a small fissure cracked open in the dry rock, and water began to gush out. Here's how: The client bitterly mentioned that the driver of that other vehicle seemed more concerned about the safety of the "bovine sperm" he was carrying in the back of his pickup than about my client's injuries at the scene. The driver actually mentioned that he was checking to see if the bovine sperm was secure. This was a glimmer of hope to me. Could this driver have been on-the-job transporting the sperm for some someone else ? If so, the employer would also be liable, and that would mean more insurance coverage.

But it seemed unlikely; the police report did not mention an employer, and the pickup truck, as depicted in the police photos, did not display any logo or company name. It was just a plain pickup truck. And the driver himself, not some corporation, owned the vehicle.

So I wrote the driver's insurance adjuster and asked her to ask the driver. And lo and behold, turns out the guy was on-the-job for a livestock sperm distribution company.

I then sued the driver and the employer. During the course of the lawsuit, I demanded to know the employer's insurance policy limits. The lawyer for the company disclosed a $1,000,000 policy. After I got several favorable rulings on the case (summary judgment on liability and on the issue that the injury was "serious"), I demanded the full $1 million policy limit (I had already gotten my client the $100,000 from the driver's policy).

Then more water began to gush out of the fissure. The lawyer wrote back saying that he had discovered an additional insurance policy for $10,000,000, which he had accidentally overlooked the first time!

Now I am drafting a truly fair settlement demand that will compensate my seriously injured New York car accident victim for every last dime he is entitled to for his past and future medical expenses, past and future lost wages, and lifetime of pain and suffering.

As I said at the outset, New York personal injury lawyers are used to strange twists and turns in our cases. But two big turns for the good in a row are as rare as they are welcomed.

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 is the fifth and final part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 5:

5. WATCH OUT FOR VULTURES. In some cases, you can't take the settlement money without others, officially called "lien holders", but whom I call "vultures", holding out their hand for a piece of the pie. I call the lien holders "vultures" because they don't participate in the "hunt", i.e., the hard work of getting the settlement, but sit around and wait for you to make the kill, and then swoop in for a piece of the meat.

Unfortunately, this is their legal right. In a New York personal injury case, this is true especially if Medicare or Medicaid or ERISA-qualified health insurance policy paid for some or all of your treatment. Also, workers' compensation will have a lien to recover any medical treatment or wage loss payments. If you take the settlement money, and then spend it, without first paying off the vultures, bad things will happen! They will come after you for reimbursement, and in the case of workers' compensation, they might cut you off completely from any further comp benefits. And if you did not calculate these liens into your settlement demand, well, you'll have to sit back and watch them eat the whole carcass of your settlement, leaving you nothing but scraps, or nothing at all.

By the way, if you hired a New York personal injury lawyer, he or she would know how to negotiate these liens downward. But if you have elected to go it alone, you can just about forget about that --- it is too complicated. That's another reason why you should have hired --- and maybe still should hire --- a lawyer!

So remember, DON'T FORGET TO INVESTIGATE LIENS AGAINST YOUR SETTLEMENT.

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 is the fourth part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 4

4. DON'T ASK FOR TOO MUCH, OR TOO LITTLE, TO SETTLE YOUR CASE. Let's face it; you have no idea how much your case is worth. Even an experienced New York personal injury lawyer has a hard time putting a number on some injury cases. So many factors come into play: your age, how strong your "liability" looks, how bad the injury is, and how long it will last, your state of health and whether you have "pre-existing injuries", what county the case must be tried in, and a few dozen other factors.

You might think you know how much your case is worth because a friend of a friend had the same or a similar injury, and his lawyer got him x amount. But that friend of a friend might have had a stronger or weaker liability case than you, and he might be older or younger, and he might have had, or not, pre-existing injuries to the same body part. All these things will make your case different from his, so it is a mistake to think your case is worth what he got.

No matter what you ask for, it is probably going to be a mistake. If you ask for too little, the adjuster will convince you it is too much, and low-ball you to hell. And if you ask for too much, and stick to it, the adjuster will not settle at all. Then you will have to go to trial --- and if you do that without a lawyer, well, in law school they used to say, "anyone who represents himself has a fool for a lawyer" . . .

But anyway, remember, DON'T ASK FOR TOO MUCH, OR TOO LITTLE. Ask for a little more than what's fair (enough to give you some bargaining room).

Stay tuned for Party V.

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 is the third part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 3:

3. DON'T BELIEVE THE INSURANCE ADJUSTER WANTS TO HELP YOU. She (or he) doesn't. She wants to get you to settle for as little as possible, fairness be damned. Her job, especially if she knows you have no lawyer, is to try to get you to sign something called a "release", which puts the nails in the coffin of your case, for peanuts. The adjuster might seem nice, friendly, kind. And maybe she is, in real life. But this is not real life. This is business. And her business, sorry to be so blunt, is to screw you.

Don't befriend her. Figure out what your claim is worth and convince her to pay you that amount, and if she won't, tell her you will hire an experienced New York personal injury lawyer to get it in court (problem: She probably won't believe you, though, since you have managed to avoid hiring a lawyer up to this point).

So remember, THE INSURANCE ADJUSTER IS NOT YOUR FRIEND.

Stay tuned for Part IV.

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 is the second part of the 5-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. Here's pitfall number 2:

2. DON'T SETTLE TOO SOON. Would you buy a house without carefully examining every room? Of course not. So why would you settle a case without having walked through every "room" of your injury? If you are still having problems, still hurting, still getting medical treatment, then you still have not visited the "rooms" of your injury that await you in the future. What will your body feel like in a year? Will you have a permanent limitation? Will you need surgery? You haven't visited those "rooms" yet. You can't visit those "rooms" until you let your injury "play itself out", and this may take longer than a year, especially if you are seriously injured. In most cases the New York personal injury statute of limitations is 3 years (but this can vary, which is another reason why you need a New York personal injury lawyer!).

So remember, WAIT TILL YOU ARE DONE TREATING BEFORE YOU EVEN CONSIDER SETTLING.

Stay tuned for Part III.

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 is the first o a five-part blog series about the pitfalls of trying to settle your own New York personal injury claim without a lawyer. I don't recommend that anyone actually do this, without at least first consulting with a New York personal injury lawyer. In rare cases, I have recommended to accident victims that they settle their claim on their own so as to avoid paying me a 1/3 contingency fee. But that's only when the injury is minor, has totally healed, and there are no complications such as "liens". Otherwise, having a New York personal injury lawyer represent you will almost always "pay off" because the settlement will be enhanced by far more than the 1/3 fee.

But if you want to throw all caution to the wind and settle your own claim without even consulting with a personal injury lawyer, at least try to avoid making these common do-it-your-selfer mistakes:

1. DON'T GIVE A RECORDED STATEMENT. The insurance adjuster will seem friendly, compassionate. He or she will say, "we just want to know what happened so we can pay your claim. Can we record a statement from you"? If you say "yes", you just fell into a trap. That recorded statement, which you believe represents the total "truth" about what happened, is likely to boomerang back and hit you in the back of the head. The insurance adjuster will rely on portions of your recorded statement, which she will call "admissions", to low ball your settlement offer, or worse yet, the insurance company lawyer will use your "admissions" to cross-examine you at trial. You, of course, won't know what hit you because you believe there was nothing "wrong" with what you said. But there almost certainly will be. The insurance adjuster is very good at getting you to say the wrong thing.

Remember, just say "no" to recorded statements!

Stay tuned for Part II in the series . . .

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

You can't be a New York personal Injury lawyer for very long without learning to hate insurance companies. I think it took me all of 6 months when I started out years ago to realize how brutal they were. You see, insurance companies "screw" good people all the time. Here's just one recent example of a guy who got screwed by the insurance industry.

The client injured his lower back in a car accident, but did not immediately seek medical attention because he wanted to see first whether he was going to get better on his own. When more than a month went by and he was still in pain, he came to see me. He wanted to know what his rights were as far as getting medical coverage to see a doctor. There was an uncomfortable pause while I thought about how to break the bad news to him.

Before I tell you what I told him, let me give you a little recent history of New York's "No-Fault Insurance" law. Only a few years ago, under No-Fault Insurance Regulation 68, auto accident victims had up to 90 days to file an application for no-fault benefits with their auto insurance carrier. (No-fault provides up to $50,000 in medical treatment and lost wages to car accident victims, regardless of fault.) But then the insurance industry lobbied New York State lawmakers to shorten the time limit to 30 days. The insurance industry claimed the shorter time limit was necessary to prevent "fraud", but that argument never made any sense to me. Instead, I believe the insurance industry knew that many auto accident victims would inadvertently wait for more than 30 days to fill out their no-fault application. The insurance industry would thus save millions of dollars by denying these legitimate but "late" claims.

This is only one example of how insurance companies, the same companies who regularly malign us personal injury lawyers, screw the public. Other examples, too numerous to list here, include (1) giving low-ball settlement offers, especially to accident victims who have not yet hired a good New York personal injury lawyer to fight for them; (2) denying perfectly valid personal injury claims; and (3) inducing accident victims, before they have time to hire a lawyer, to give "recorded statements" by promising them, falsely, that this will help the insurance company "resolve their claim", when in fact the intention is to torpedo the claim.

Insurance is one of the most heavily regulated industries, and for good reason. Can you imagine what they would be doing to us if they were not regulated? Too bad their lobby is so powerful that it weakens the government's overseeing role.

My client could not believe what he was hearing when I told him about the 30-day rule. As he put it, "I got screwed". He's not alone. Don't let them screw you! Hire a good New York personal injury lawyer from the get-go.

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