Central New York Injury Lawyer Blog

You're driving along a country highway, rounding a curve, when ---- bam --- you run into a cow. Yes, a cow! Why? Farmer Brown left a gaping hole in his fencing, and the big dumb animal wandered out. Can you sue the farmer for this obvious negligence?

Until just the other day, the answer was, surprisingly, "no", at least not in New York. The rule in New York (which I blogged about last year) was that you could sue the owner of an animal which harms you ONLY if the owner knew or should have known the animal had "VICIOUS PROPENSITIES".

This "vicious propensities" rule grew out of dog bite case law. The courts reasoned that it wouldn't be fair to hold a dog owner liable for his dog's first bite unless he knew his dog was a problem. This was sometimes referred to - though not very accurately - as the "one free bite rule".

But the "vicious propensities" rule never made any sense with stray cows or other farm animals. Since cows are never "vicious", farmer Brown could let Bessie out onto the roadway innumerable times and cause innumerable accidents but suit would always be barred because the animal was not "vicious".

The law in New York, as it stood, was an outrage.

No longer. Just the other day, the Court of Appeals changed the law with the case of Hastings v Suave. In that case, the Court ruled that "a landowner or the owner of . . . a farm animal . . . may be held liable where the animal is negligently allowed to stray from the property on which the animal is kept" even when the animal did not display "vicious propensities".

But what happens if a (non-vicious) dog or cat strays out into the roadway and causes a collision? Can you sue the owner then? The Court left that question open for another day, stating "we do not consider whether the same rule applies to dogs, cats or other household pets; that question must await a different case".

That "different case" should not take too long to go up to the Court of Appeals. Cats and dogs running into the road and causing accidents is fairly common.

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 Lawyers
Michaels & Smolak, P.C.

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

Not long ago cars were death traps. Then Ralph Nader, a trial lawyer, wrote a best seller called, "Unsafe at Any Speed: The Designed-In Dangers of the American Automobile", published in 1965. The book detailed the resistance of the auto industry to investing in safety features, such as seat belts.

Then great trial lawyers brought a slew of products liability lawsuits against the auto manufacturers. The automobile industry responded by designing safer cars, featuring seat belts and then airbags, to avoid shelling out millions to mangled auto crash victims.

But the auto industry kept getting sued because lawyers kept arguing the vehicles could be made still safer, which spurred a leap-frogging of safer and safer designs. As a result, we now have side air bags, crash-resistant chassis, seat belt alarms, anti-lock brakes, etc.

Even in our modest little Central New York personal injury law firm, we have seen the investment returns on the auto industry's safer designs. We often marvel at how our clients walk away from mangled, squashed, twisted and bent vehicles whereas they would have been carried out, face shrouded, just a decade or so ago.

Yes, you can thank us personal injury lawyers for all these safety advances. If the auto industry could have managed a "hit and run", they would have driven away for all the human carnage they were unnecessarily causing. But we made them pay for it. Which made them think of ways of avoiding paying. Which made them improve safety.

And here's what's really interesting: The "end of history" of the auto safety evolution may be near. The ultimate goal, a perfectly safe car, may be just around the corner. Don't believe me? Take a look at this recent New York Times article and also watch this amazing video showing an"automated car" in action . It drives itself, automatically, avoiding obstacles, pedestrians, bicycles, etc., by using incredibly sophisticated sensors. The sensors also react perfectly to stop signs, red lights, construction zones, etc. The car drives on its own, without human input, and it drives perfectly.

Yes, this amazing technology appears poised to usher in an auto-accident-free world. This is as breathtaking as the discovery of a cure to cancer. And as marvelous.

Only one problem with all this. As marvelous as it is, it also means a significant amount of my "business" will disappear. Motor vehicle accidents represent about 20% of my case load.

There is some poetic justice in this. The auto industry for years claimed that New York personal injury and product liability lawyers like me would put them out of business with our lawsuits. But now their safety improvements, spurred by our lawsuits, may put us out of business.

I am not complaining. Like everyone else who hasn't been living under a rock, I have friends and relatives who have died or been seriously injured in car accidents. I have 5 children who drive or will be driving soon. I want them safe and I want their children's children safe.

If I never see another car accident case, and I have to shut my doors, I promise you I will say these words with a grateful smile: "Will you take fries with that . . . .?"

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 & Syracuse NY Motor Vehicle Accident Injury Lawyers
Michaels & Smolak, P.C.

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

We at the Michaels & Smolak personal injury law firm know all too well how dangerous Grant Ave. (Route 5) is in Sennett, just outside of our hometown of Auburn, NY. If you don't believe us, just google "car accident Grant Ave. Sennett New York" and look at the list of reported cases! Why so many?

Well, Grant Ave. is the main thoroughfare between Auburn and Syracuse. There's way too much traffic, too many commercial parking lots to turn into and out from, and traffic moves way too fast. That's a dangerous brew, but add to it the fact of life that many drivers just aren't careful enough, and there you have the explanation.

Many of the car accident cases we handle happen right here in nearby Sennett on Grant Ave. In fact, we just settled a motorcycle-car collision case that took place on Grant Ave. at the intersection with the Wallmart parking lot.

Today's paper describes yet another car accident on Grant Ave.: A four-car collision at around 8:55 a.m. near Gates Road. Cayuga County deputy sheriffs say a white car was traveling east when it sideswiped a westbound car, and then rear-ended a second car before crashing head-on into a third. Apparently, the driver of the white car and the driver of the car it hit head-on both suffered injuries requiring hospitalization.

This kind of accident is totally avoidable. Please everyone, be extra careful when driving on Grant Ave! Drive defensively because others drive offensively!

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
Auburn NY Car Accident Lawyers
Michaels & Smolak, P.C.

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

I recently blogged about a new nationwide trend to criminalize "drowsy driving". Caffeine-crazed prosecutors around the country are going after sleep-deprived drivers who doze off at the wheel on criminal charges including manslaughter and other serious felonies. (The prosecutorial equivalent of pouring cold water on sleepy drivers.) Could YOU end up on the receiving end of such prosecutorial zeal some day? Hey, wake up and smell the coffee --- you too drive sleepy once in a while!

Yesterday, New York City prosecutors lost a nine-week multiple-manslaughter trial against a bus driver they charged with driving while drowsy. Essentially they argued that, by getting behind the wheel of the bus knowing he had not slept enough, and then causing an accident because of his sleep deprivation, he committed manslaughter and other serious crimes.

The jury disagreed. Yes, he caused one of the deadliest crashes in New York City's history. Yes, he was probably negligent in the extreme for having driven a busload of innocent unsuspecting passengers on too little sleep. But no, he was not criminally liable.

But don't worry about the guy getting off scot-free. He already spent more than a year in jail because he could not make bond, and he still faces liability in pending civil lawsuits for damages filed by the survivors and relatives of those killed in the crash. The injuries were horrendous, including one guy who lost both arms.

Want to know what it's like to live with no arms? One of New York's finest trial lawyers ever, Mo Levine, once famously summed it up to a jury like this: After telling the jury he had just taken his client out to lunch, he paused and said, "ladies and gentlemen, my client eats like a DOG"! Then he sat down. The jury gave his armless client the biggest New York personal injury verdict ever recorded until that day.

I feel terrible for the victims of this unspeakably horrendous accident. I hope they get zillions of dollars in their New York personal injury lawsuits. But as I explained in my last blog, in the humble opinion of this Central New York auto accident lawyer, criminally prosecuting sleepy drivers is a Pandora's box not worth opening.

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 Auto Accident Injury Lawyers
Michaels & Smolak, P.C.

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

Just read an article in the New York Times titled, "Push to Prosecute Drowsy Driving May Hinge on Its Definition". Before I discuss this article, I need to make a confession: I've done it. I have driven drowsy. I've felt myself nodding off at the wheel. It has happened a few times in my life, and every time it scared the crap out of me. Come on, admit it --- it's happened to you, too!

Now I (and you?) could go to jail for it. According to the article, law enforcement officials are pushing State legislators to make driving-while-drowsy a crime punishable by jail time. This follows a decades-long trend toward criminalizing dangerous driving behaviors, such as drinking-while-driving, texting-while-driving and phoning-while-driving.

Until now, law enforcement has simply coaxed the sleepy driver with friendly nudges from roadside signs, such as "You Snooze, You Lose" or "Drive Alert, Arrive Alive." Is it a good idea to up the ante, to make it a crime?

Since my job includes suing negligent drivers for causing car crashes that injure my clients, I would love a law like that. To prove my case, I would just hand the judge proof of the criminal conviction, and he or she would instruct the jury that the defendant driver is liable as a matter of law. Case closed. Only thing left for the jury would be to figure out how much money my client is owed.

Even though I personally would benefit from the criminalization of drowsy driving, I'm against it. (You see! We personal injury lawyers are not all about greed!). It's just wrong. Nowadays we believe jail is the answer to every problem. But jail is expensive for us taxpayers. Some otherwise very good people might get drowsy at the wheel. Driving without enough sleep is in part a consequence of our modern high-stress world, where we are all juggling busy schedules, long work hours, sometimes more than one job, not to mention taxi-ing our kids around to and from sports practices. And how do you prove someone was legally "too sleepy" to be driving anyway? There's no blood test (like for alcohol) and no record (like cellphone call records) to prove sleeping, or lack of it.

Don't get me wrong --- I am all for holding folks accountable for their negligence in a civil trial for damages. But if you can prove someone fell asleep at the wheel, that's already just about always a slam dunk on civil liability in New York State. (See my past blog post "Does Falling Asleep at Wheel Automatically Make Sleeping Driver Liable For Central New York Motor Vehicle Accident?"). I just don't want a separate criminal penalty for it. I don't think the threat of jail will keep sleepy people off the road.

The one exception I would make would be for commercial drivers and common public carriers, such as taxi drivers, bus drivers. But you still have the problem of defining what legally is "too sleepy", and proving it. Lots of grey areas in there.

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 Lawyers
Michaels & Smolak, P.C.

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

Today a driver was seriously injured when she careened over an embankment at a sharp curve on Lakeshore Road, near Ontario Ave, in Cicero, near the edge of Oneida Lake. Some witnesses say the car was going too fast, but a neighbor was quoted in the paper saying the curve has a history of bad crashes.

The "history of bad crashes" caught my eye. By force of habit, my NY car accident lawyer thinking cap went on. Get under that cap with me for a moment.

Here's my stream of thought: "Could this unfortunate driver, even if she was going a bit too fast, bring a claim against the State, County, Town or whoever designed the roadway? Did the design of the roadway contribute to her car accident? Was the posted speed limit too fast? Were there adequate signs announcing the curve? Should they have installed flashing yellow lights or other hazard warnings for the curve?"

In New York, this kind of case can sometimes prevail if the signage, speed limit or design of the roadway evolved haphazardly, without a reasonable governmental study or plan, or were the result of an inadequate plan or study. Some of the questions that will come up in such a case are: Did the design of the roadway, or inadequate signage, or a too-fast speed limit, help cause the accident? Did the roadway design, signage and speed limit comply with the highway engineering standards at the time the roadway was built? Did the government learn of other similar accidents over the years -- accidents that should have tipped it off that the design, signage or speed limit should be re-considered --- and yet they fail to take a second look?

Accidents often have more than one cause. Many times there is plenty of blame to spread around. And sometimes some of that blame falls squarely on the government agency that designed the road.

Drive 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 Lawyers
Michaels & Smolak, P.C.

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

The kid standing behind me in this photo, trying his hand at hair styling, is my oldest son Sebastian. (Don't worry - he has already ruled out hair styling as a career option.) On September 30 he will turn 16. Yesterday he announced that we are going to the DMV to take his driver's permit test on his birthday at 9:00 a.m., and he is driving us home.

For most parents, this rite of passage is worrisome. But for a guy who represents car accident victims, and deals with clients' terrible car wreck injuries every day of the week, it's grueling. My hair is already grayer than it was in this photo.

It is a well known fact that car accidents are the number one cause of death for kids his age. It is not such a well known fact that sixteen year old kids driving is the number one cause of grey hair in aging fathers.

Sure, I'll take him for a spin on September 30. But I am not going to be his principle driving teacher. Why? He doesn't always listen to me. I'm just his stupid dad, and what do I know? So I'm forking out the money to get him a real driving education from someone he will listen to.

And we'll have strict rules even after he gets his license: No friends in his car. No radio playing. No nothing. Just drive and concentrate. Period. At least until he's 18.

And any rule-breaking means driving privileges suspended.

Yes, I'm putting my foot down. And he had better not put his foot down (on that pedal, I mean).

If I'm lucky, he'll never be my client. And he'll never be sued by someone else's client. Except maybe for hair-styling malpractice.

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 Lawyers
Michaels & Smolak, P.C.

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

Today I accompanied a wreck of a man --- a severely injured car wreck victim -- to a so-called "independent" medical examination ("IME"). (You will see why I say "so called" soon enough.) The poor guy got t-boned a few years ago and ever since has suffered horrible pain emanating from his cervical and lumbar spine. He has had two surgeries, one on his neck and one on his lower back, not to mention countless rounds of physical therapy, epidural injections, trigger point injections, pain meds, and chiropractic treatment. Even so, he has been losing his war against the pain.

All of his many doctors have concluded that (1) he is badly injured; (2) the car accident caused his injuries (he was fine before then!); and (3) he is totally disabled.

Open and shut case, right? Wrong. The insurance company defending this case has a right, under New York personal injury law, to have the victim present to a so-called (there I go again!) "independent" medical examination ("IME") by a doctor of their choice. The so-called "independent" doctor (paid by the insurance company) then renders an opinion whether the victim is injured, and if so what his injuries are, whether the car accident caused them, and whether he can work at all.

About a month ago I got the insurance company's Notice of Independent (yea right) Medical Examination ("IME"). When I saw the name of the doctor the insurance company had picked, I knew right away what the good doctor would say about my client's injuries. He is (in)famous in Central New York for giving the insurance company exactly what it wants, every single time, no matter how bad the injury. And that's why he is the "go to" doc for the insurance companies' so-called "independent" medical examinations ("IME's).

Like most New York personal injury lawyers, I refuse to call these examinations "independent" medical examinations. Rather, we call them "insurance" medical examinations.

Anyway, this particular doctor will never find an injury of any significance (except perhaps if the patient has lost an arm or leg!). His examination report will be a cut-and-paste job from all his other reports, following this formula: (1) the victim was hardly hurt at all, just sprains or strains, (2) those injuries are totally resolved; (3) the victim may be exaggerating his injuries; (4) even if there is an injury, the accident did not cause it, but rather a pre-existing condition is causing the symptoms; and (5) the victim can work.

And that's what he'll say in Court, too.

The good doctor examined my client for only 9 minutes.

I don't even need to see his report. I know exactly what it will say. It will contradict everything his treating doctors have said - yes, the doctors who have been repeatedly examining him over a period of many, many hours over the last few years - and will find that he is hardly injured at all, and that he may be faking, and if not, his symptoms are not caused by the car wreck but by pre-existing conditions.

One of the reasons I wanted to go to this IME (besides to show support for my client) was so I could time the exam (only 9 minutes!), see first-hand the testing the doc did (not much!), and more importantly, the tests he did not do (many!), so I can cross-examine the hell out of him at trial.

See ya at trial doc.

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 Lawyers
Michaels & Smolak, P.C.

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

Just read an article in the New York Times titled, "How to Know if You Have Enough Auto Insurance". The article gave some interesting statistics: Nationally, the average jury award for motor vehicle accident injuries is $181,197, and about 5 percent of car accident injury claims in 2010 were for more than $100,000 while only about 2 percent reached $300,000.

Then there are those occasional multi-million dollar jury verdicts. How do you protect yourself against those?

Anyone can make a mistake driving, including you. Do you need to protect yourself against such judgments? Is it expensive to do?

It costs only about $200 extra annually to bring your liability insurance from $50,000 to $1 million. Increasing your "SUM" coverage (explained below) to that $1 million costs only about ½ of that.

Buying liability insurance protects you from these judgments. If you screw up and hit someone, your insurance will stand by you, defend you in court, and pay any settlement or judgment for you, but only up to your policy limit. So if you have only $25,000 in coverage and a jury awards your victim $100,000 that leaves you high and dry to the tune of $75,000. That's why you want to buy enough insurance to at least cover your asset exposure. The more assets you have, the more liability insurance you want to protect them. If you have nothing, then getting minimal insurance makes sense, because you can simply file for bankruptcy if you get slammed with a verdict beyond your insurance coverage and assets. If you have something you don't want to risk losing, you'd better get an appropriate level of liability coverage.

Supplemental underinsured mostorist insurance (SUM) is different. This protects you not from your own mistakes, not from judgments by others against you, but from others' mistakes, from injuries you suffer at the hands of the other guy. If the other guy who creams you has no or little insurance, your own SUM insurance will "stand in the shoes" of the other guy, and pay up to your own policy limits. The odds of getting hit by someone with no insurance coverage are not that negligible, about 15% , and there are lots of drivers out there mowing people down with only minimal ($25,000 in New York) coverage. In fact, about 20% of motorists carry only the legal minimum liability insurance. If the negligent driver who hurt you or your family members carried only $25,000 in coverage, but you have $500,000 in SUM coverage, then you and your family members will be covered to the tune of the full $500,000. And if you are badly hurt, boy will you need it!

Worth the extra cost? Don't wait to get in an accident to find out . . .

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 the top 5 cell phone carriers in the U.S. receive a total of 1.3 million requests from law enforcement agencies for personal and location data. Cell phones have built in GPS tracking devices that record the cell phone's whereabouts. Police use of cell phone data is now widespread, even among small, local police departments.

What the Post Standard article does not say is that New York car accident lawyers like me also use cell phone data in our cases. Here's how:

Say I have a car accident case where the defendant driver, at deposition, tells me he was not at all distracted when he entered an intersection against a stop sign and collided into my client's car. Let's say he claims my client "came out of nowhere" and therefore "must have been speeding". My next question? "Sir, do you have a cell phone" (answer: yes). My next question: "were you using it at the time of the collision or just before the collision" (Answer: "no"). Next questions, "what carrier do you use", and "what is the phone number".

With this information, I can then subpoena the driver's cell phone records and examine the exact times of the incoming and outgoing calls. If the driver doesn't know which carrier he was using at the time of the accident, I can simply subpoena all the major cell phone carriers for their records regarding that phone number.

I haven't yet subpoenaed data regarding the location of the cell phone at the time of the accident because I haven't needed to; the driver usually admits his cell phone was on him, but denies he was using it.

To be honest, every time I have subpoenaed such records, they have confirmed that the driver was not using the cell phone at the time of the accident. But that doesn't mean I won't keep checking! Needless to say, some witnesses do lie under oath, and others just have a bad memory. Either way, I've got a right, and in fact a duty to my client, to verify that the driver is telling the truth when he claims he wasn't talking on the phone at the time of the accident. If it turns out he was talking on the phone, that goes a long way in explaining why he felt my client "came out of nowhere . . ."

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 and Syracuse NY Car Accident Lawyers
Michaels & Smolak, P.C.

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

A recent hit-and-run driver case in the Geneva NY area has some people wondering whether a downed cyclist or pedestrian will get more insurance compensation if the guilty hit-and-run driver is caught. The answer is probably not. Why?

First, in my experience representing Central New bicyclists and pedestrians in hit-and-run cases, hit-and-run drivers usually carry minimal insurance. They are usually irresponsible (that explains why they take off), have poor-paying jobs, and no real assets. All they can afford, or want, is the minimal coverage, which is $50,000 in "no-fault" and $25,000 in "bodily injury" (also called "liability") insurance.

Since this is the minimum insurance, everyone who owns a car in New York has at least that, including injured cyclists or pedestrians who own a car, or whose family member he or she lives with owns one. The injured cyclist/pedestrian automatically gets at least this minimal coverage from their own (or family member's) auto insurance if they are victims of a hit-and-run and the driver is not caught.

In other words, if the hit-and-run driver is not caught, the cyclist or pedestrian's own auto insurer (or their family member's) "stands in the shoes' of the hit-and-run driver and must provide no-fault insurance (up to $50,000 in medical and lost wage payments) and, at a minimum, $25,000 in "liability" coverage (coverage for pain and suffering and any lost wages or medical expenses beyond the $50,000 no-fault limit).

If he hit-and-run driver is caught, his insurance will become the primary insurer. It will pay the $50,000 maximum no-fault benefits instead of the bicyclist's or pedestrian's own auto insurer. So that's a wash to the injured cyclist or pedestrian. The same is true with liability coverage. If the hit-and-run driver is never caught, the injured cyclist's or pedestrian's own auto insurer provides a minimum of $25,000 in "uninsured motorist" benefits. If the driver is caught, the driver's $25,000 liability insurance kicks in, and the pedestrian/cyclist's own auto carrier is off the hook for this amount. The coverage to the injured cyclist/pedestrian is still the same. Again, it's a wash.

Some smart cyclists, realizing their hobby is somewhat dangerous, load up on something called "SUM" (supplemental under-insured motorist) coverage. Read about SUM at this prior blog post. If the cyclist or pedestrian has, let's say, $100,000 in SUM coverage, and the hit-and-run driver is caught, and the coverage on his car is only $25,000, then the cyclist gets $100,000 --- $25,000 from the guy's insurance, plus $75,000 from his own SUM policy (plus the no-fault benefits). But if the hit-and-run driver is never caught, the victim still gets $100,000 --- all from his own SUM policy (plus no-fault). Again, a wash.

The only way the cyclist or pedestrian will actual benefit financially from the hit-and-run driver getting caught is if it turns out the hit-and-run driver has more liability coverage than the cyclist/pedestrian has. For example, if the hit-and-run driver has $100,000, and the cyclist or pedestrian has only $25,000 in SUM, then cyclist/pedestrian gets the $100,000 (plus no-fault) whereas he would have gotten only $25,000 (plus no-fault) had he not been caught. But that, in my experience, is not likely to happen.

Cyclists, be safe. Protect your family. Load up on SUM coverage. It's a bargain. Just a few extra dollars a month. Far, far cheaper than, say, a disability insurance policy.

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 Auto Accident Lawyers
Michaels & Smolak, P.C.

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

The other day I blogged about a car-on-bicycle collision in the Gorham-Rushville NY area. A hit-and-run driver knocked Kevin Royston, an avid cyclists, off his bike and into a ditch where a passing motorist spotted him and called for help. His leg, broken in four places, has now been partially amputated.

The Geneva Bicycle Center along with Kevin's family and friends are now offering an $11,000 reward for information leading to the arrest and conviction of the hit-and-run driver. Michaels & Smolak now adds $1,000 to that pot of reward money, making the total $12,000. Why?

Some of Kevin's friends feel that he will get better insurance coverage if the hit-and-run driver is caught, but they are probably wrong. The coverage will probably be the same. So that's not why we are chipping in. (If you are interested in knowing why the coverage probably won't change, click and read here).

Here's my explanation: First, I am a fellow Geneva NY area bicyclist, and I have biked that very road before. There but for the grace of god go I! I feel personally invested in catching this selfish, scum-of-the earth motorist. Getting hit from the rear on my bike is my personal bogyman because, as a lawyer who represents injured bicyclists, I know all too well the lay-of-the land ---- distracted drivers texting, navigating, talking on the phone, dialing, reading email -- you name it, and I've seen it.

Second, there are two aspects to our system of justice: civil (being able to sue for compensation) and criminal (punishing the wrongdoer with, among other things, jail time). We are most concerned about the second kind of justice. What this hit-and-run driver did is a crime deserving of severe punishment. He left Kevin there to die! He did not care that his injuries might have been life threatening, or that no one would have found him in that ditch! All he cared about was saving his own skin. A message must be heard loud and clear in the entire region that reckless motorists who kill and injure cyclists or others, especially cowardly hit-and-run criminals, will be punished. We can't let this guy get away with it!

So that's why Michaels & Smolak is adding $1,000 to the "pot" of money rewarding anyone who provides information leading to the arrest and conviction of the hit-and-run driver who cost Kevin his leg. If you have any information at all, call us, or better yet, call the Ontario County sheriff''s Office at (585) 394-4560.

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 Bicycle Accident Lawyers
Michaels & Smolak, P.C.

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

Just read in the Finger Lakes times that a bicyclist was rear-ended on Townline Road in Gorham, Ontario County yesterday evening. The at-fault driver sped off and left the cyclist down and injured. Unacceptable! What a jerk!

Deputies are asking anyone with information to call the Ontario County Sheriff's Office at (585) 394-4560. If you have any, please do!

This accident represents my own personal biggest fear when riding; getting nailed from behind. I can't see the motorists approaching me from behind, and have to just hope and pray they are not texting or otherwise distracted, and that they see me. To better my odds, I use a flashing red light on the rear of my bike, even in daytime, just to catch their eye, and, of course, bright clothing.

Yes, I am an avid cyclist, and have cycled that same road where this accident happened many, many times (I live in nearby Geneva). But I am also a personal injury lawyer who represents injured cyclists. So here's a little information for this injured cyclist, if he happens to read this blog post, or for any other bicyclist who falls victim to a hit-and-run driver:

Even if the hit-and-run driver is never apprehended, the cyclist will (with the help of a personal injury lawyer knowledgeable about hit-and-run insurance claims) get insurance coverage for his medical expenses, lost wages, and even pain and suffering. How?

First, if he or any family member he lives with owns a motor vehicle, that vehicle's insurance will have something called "supplemental uninsured motorist" ("SUM") coverage, which covers hit-and-run accidents. But even if neither the injured cyclist nor anyone who lives with him owns a motor vehicle, he can still get insurance coverage through the New York State's Motor Vehicle Accident Indemnification Corporation (Called "MVAIC"), which is specifically set up to provide insurance benefits to pedestrians, bicyclists and motorists who are injured by uninsured motorists or hit-and-run drivers.

By the way, if you cycle, you should buy as much "SUM" coverage as possible. It's cheap and protects you not only from hit-and-run drivers, but also from drivers who injure you but have small insurance policies. Your own insurance will step in where the other guy's falls short. Read this previous blog post for more information.

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 Bicycle Accident Lawyers
Michaels & Smolak, P.C.

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

I read this article in the Syracuse Post Standard the other day about how no-fault insurance regulators plan to start "kicking crooked doctors out of New York's no-fault program", referring to such doctors as "linchpins in fake-accident scams that cost insurers and policyholders hundreds of millions of dollars".

As a Central and Syracuse New York auto accident lawyer, I have represented many, many auto accident victims over the years. And I have some questions for the regulators who are targeting no-fault victims' doctors. The first is, "what planet do you live on?!"

I have never, in my career, known any auto accident victims' doctors or other medical professionals to take part in "fake" no-fault claims. Instead, I have known no-fault insurance carriers to hire biased doctors to issue one-sided reports used to justify denying car-accident victims their medical treatment. These doctors butter their bread with a regular stream of income from the no-fault insurance industry, which asks them, time and time again, to give an opinion as to whether their insureds' no-fault funded medical treatment is "reasonable and necessary". With surprising (actually, not) regularity, these doctors, bought and paid for by the insurance company, find the insured's medical treatment NOT necessary or reasonable. The no-fault carriers then use these reports to justify denying payment of any further medical treatment for their insured, who by the way, dutifully paid their no-fault insurance premiums for years.

While I do not deny that there may be a few "crooked doctors" who support cooked-up no-fault claims, they are surely few and far between. But the so-called "independent" medical examiners who are actually in the no-fault insurance industry's pocket? A dime a dozen.

Why are the regulators targeting "crooked" doctors who support no-fault claims, and not those who oppose no-fault claims for the insurance companies? Could it be that the insurance industry has a bigger lobby in Albany than injured car accident victims?

As usually, money talks.

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

Last Sunday a van careered across several lanes of traffic on a highway overpass on the Bronx River Parkway before plunging off the side of the road and landing, upside down, in the Bronx Zoo, where all seven occupants, including three children, met their death. Yes, the van driver was surely at fault. He was probably speeding (68 in a 50 mile per hour zone), and he should not have lost control of his vehicle. But that doesn't let the State of New York off the hook if it failed to design and maintain a safe roadway.

And it sure looks like New York State screwed up here. The van apparently hit a concrete curb on the right side of the roadway, which catapulted the van so high that it completely cleared, without touching, the four-foot high guardrail/fence.

This is totally unacceptable. What kind of engineering genius would put concrete curbs that act as launching pads for errant cars and send them flying over the guardrails? Make no sense at all.

And this was not the first time! Last year a car cleared the guardrail at nearly the same place. This section of the parkway is on the New York State Transportation Department's "5 Percent List," which is a federally mandated list of locations "exhibiting the most severe highway safety needs."

This sad case reminds me of another case I wrote about in last year's municipal liability outline, Garner v. State, where a motorist lost control of his car on a highway bridge, then ran into a snow bank packed against the concrete barrier guard at the edge of the bridge. The snow bank acted like a ramp, vaulting the car off the bridge and onto a roadway below. The State lost that case, but apparently the State still has not learned its lesson.

Here's the lesson: we, the citizens of New York State, do not want to be launched into orbit if we, for whatever reason, lose control of our vehicles on your roadways, bridges and overpasses. Please remove your launching pads. Donate them to NASA!

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 Negligent Roadway Design Lawyers
Michaels & Smolak, P.C.

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