[Music] Hello and welcome to the Millennial Lawyer Podcast with New York litigation attorney Mark Shirian. Mark specializes in various areas of personal injury cases, employment law employment discrimination, and medical malpractice. I am your host Kevin Rosenquist and today’s episode is auto accidents in New York City: immediate steps and legal guidance. Mark, great to see you. 

Great seeing you again Kevin. 

Thank you. It seems in the chaos following a wreck people often don’t know what their next step should be, and understandably so. Can you walk us through the crucial actions a person should take to protect themselves legally immediately after an accident. 

I would recommend that you, obviously, call the police right away, but depending on how you’re feeling, try to document as much as you can. Whether it’s taking photographs of the scene, taking down witness statements, I would try to get as much evidence as you possibly can if you’re able to. If you are not, I would advise to just stay in the vehicle that you’re in until the police or EMS appear on the scene.

You mentioned seeking medical attention, obviously when people get into accidents sometimes you can feel like you’re okay, your adrenaline’s pumping, and then later on there can be some issues. How important is it to seek medical attention, even if you’re not, if you don’t feel totally injured at the time? That’s a great point. You don’t know how you’re gonna, how your body is going to react to a crash. You might feel it the next day, you don’t feel it at the time, you might hit your head or another body part, so I would advise to seek treatment ASAP after an accident, even if you don’t necessarily feel any sort of pain. It is imperative to document and just make sure that all your vitals are working correctly after. 

Yeah I I could totally see how, you know, you might feel like hey I can walk it off I’m a tough person, like I can handle this, but then if you don’t go right away and then you wait too long, that could look a certain way to the insurance companies.

Right and they’re going to look to expose that they’re going to say that hey there’s a gap in treatment and you’re not really injured. So you know why did you wait so long to get treatment? So they’re definitely going to use that to expose someone who’s looking to make a claim against them. So important to go for treatment initially and if in a busy city like New York, there are a lot of complexities involved with car accidents, traffic laws, how many parties are involved, etc. 

How does the city’s unique environment affect personal injury claims from auto accidents? 

That’s a good question. I think the first topic that we should discuss with respect to New York is to  understand that New York has no fault law. The no fault law basically says that regardless of who’s at fault, the vehicle that you’re in will cover all of your medical expenses up to $50,000. So if you’re in a wreck and the other car was completely negligent, it would still be the vehicle that you’re in who would pay for any sort of treatment that you incur because of those no fault laws. Now in New York in order for you to make a bodily injury claim against the negligent party, whether it’s the other car or the driver of the car that you’re in, you have to be able to demonstrate that you sustained a serious injury. Whether it’s a loss of limb or death, in some instances limitations of a body part, there are different standards, but you have to be able to demonstrate a serious injury. They call it the serious injury threshold.  So, for example, you could have a case where you were rear ended and the other party was completely negligent and even when some judgment on liability because the other vehicle was negligent but the whole case could get thrown out if the defense makes a motion, a threshold motion and demonstrates that you did not sustain a serious injury. So that’s how it typically works in New York.  Now if you’re a pedestrian, same deal, the no fault insurance that would cover your treatment would be with the vehicle that made contact with you. So in that instance, the car that hit you would be on the hook for your medical expenses through no fault insurance, and if you have serious enough injuries, you can make a claim against that vehicle for a bodily injury claim. So that’s how it typically works in New York. I know other states don’t necessarily have that where there’s a serious injury threshold, but that’s what was implemented in New York to ensure that claims, worthy enough claims, were only being pursued in a situation where maybe there’s a dispute over whose fault it is or it’s just not clear whose fault it is. 

How should someone handle that? What should be their first step? 

Well the easy answer to that is now with the technology that we have I highly recommend having a dash cam because in a situation like that where it’s not so clear who’s at fault, the dash cam is so helpful these days. We’ve gotten cases involving Teslas, whether it’s our clients driving a Tesla or the other car driving a Tesla, so that tells the story as to who’s at fault or maybe both parties are at fault. It’s a helpful way to determine who’s at fault and how much they’re at fault. I mean why not have that technology these days. you know, with respect to, you know, especially if you’re in a high traffic area, it’s imperative to have that sort of technology installed in your vehicle so you don’t have those types of disputes.

Yeah insurance companies, obviously they would love to settle things quickly, maybe lowball. Can you explain why it’s crucial not to accept a settlement offer too soon? 

Well the easy answer to that is you don’t know how you’re going to recover from the incident. We’ve had situations where our clients have had conservative treatment but they’re not getting better, and then the doctor or the professional recommends that they have surgery, and then later on they have surgery. So the numbers that were being discussed before they had surgery are just in a completely different realm then after they actually have that surgery. So I would recommend a lot of times when people hire an attorney the first question they ask is how much is my case worth and if you actually have an attorney who’s going to answer that question, I advise you run the other way. There’s no way to determine how much a case is worth. I provide a number in response to that question about how much is my case worth. It’s either going to be way too low or it’s going to be too high, and I’m not going to put put myself in a position where I’m getting my clients hopes up or, you know, I’m giving them a lowball number and then all of a sudden you know you’re getting a number that’s a lot higher than that. I wouldn’t obviously hire an attorney, the attorney will do all this for you, but before you actually hire an attorney, don’t negotiate directly with the insurance companies without seeking an attorney. 

Yeah good good tip for sure. What are some other tactics that insurance companies will use to try to minimize payouts? 

They’ll use a multitude of excuses like that there was a pre-existing injury, they will, a lot of insurance companies at least in New York, they schedule what’s called Imes which is an independent medical exam and they’ll have their own doctors examine our clients and they’ll furnish a report that says that our clients aren’t injured or they’re not permanently disabled or their injuries aren’t related to the incident. And that way they could somehow try to secure a lower settlement or, you know, oftentimes they use those reports to cut off treatment. Like I said, if the no-fault carrier is paying for the medical treatment, they have those independent medical exams to use as a way to either cut off treatment or limit the type of treatment that you get going forward. Sometimes they schedule what’s called EOS which is an examination under oath so they can get your side of the story to confirm that the case isn’t fraudulent. But a lot of times, you know, these are just tactics that they use to get as much information as they can before it turns into a full-blown law. 

How can victims protect themselves from being taken advantage of? 

Don’t speak directly to the insurance companies. I’ve heard it all, you know, make sure that you’re documenting as much as you can. Have a list of where you’re getting treatment because if you do actually seek an attorney, it’ll make it easier for them to gather as many medical records as they possibly can so they can try to resolve the claim before it turns into a lawsuit. Early on in my career, there were instances where, you know, we have a settlement package to submit, but there, you know, for whatever reason we don’t have any MRIs. That’s because the client didn’t tell us that they had any sort of MRIs, so just keep a documented record of where you’re treated so your attorney can go ahead and retrieve those records. 

If an insurance company contacted a victim and the victim was like, you know, I have an attorney, go through that person, will the insurance company try to push even further still? Or do they shut it down? 

Generally they really shouldn’t, they should shut it down at that point. They, you know, to their defense, insurance companies have been pretty good with reaching out to my office once they find out that my clients are represented by my office. I will say something nice about the insurance company. 

Hey look at that I knew it was gonna happen eventually. 

Yeah I haven’t had that issue come up. 

Okay that’s good to know. That’s good to know. Many people believe that the insurance companies are on their side, it’s not always the case, obviously. Can you explain what you do for your clients like at the beginning of the process and why it’s imperative to get to you soon? 

Well the insurance companies, their only incentive is to try to pay out the least amount of money as they can, right, on the case. Understand that’s their business model, to pay out the least amount of money that they possibly can on a claim. That’s what it is. And our business model, and our ethical duty quite frankly, at my office is to make sure that we are maximizing the value of your case. We’re not here to short change our clients or to make sure that we’re getting a quick easy settlement if that doesn’t match the type of damage and the extent of the injuries that our clients have sustained. So that’s really what you’re dealing with, you have these insurance companies who are trying to pay the least amount possible, that they possibly can, and you have our office ensuring that we are getting top dollar on our cases. So as far as what we do we make sure that our clients are getting as much treatment, at least going, making arrangements that they are going to wherever they want to go for treatment, and retrieving those records once they’re done treating, and you know initially gathering as much evidence that we can and submitting a settlement package directly to the insurance company before we have to actually file the lawsuit. If they’re not offering us what we’re looking for, then we’ll go ahead and file the lawsuit and litigate it but that’s what we do here is try to maximize the value of these cases and that’s ensuring that their our clients are going to the top facilities so they can get back on track after they deal with the trauma of an accident.

What’s the most common way people might inadvertently sabotage their own personal injury claim after an accident? 

By speaking directly to the insurance company. 

I had a feeling you might say that. 

Yeah, because, you know, and I have clients where, you know, before they hire the attorney, before they hire our office, they were in conversations and correspondence directly with the insurance companies. And then after we get involved, it just makes it a lot more difficult, right, because it’s like well your client said this well, you know, they demanded this and now you’re coming in and you’re demanding that we’ve been there and it’s tough. It’s really tough. We do the best we can for someone who’s been injured in an auto accident. 

When should they contact you and how should they get the process started? 

Well immediately, ASAP. You know, for us we really just can get started with a police report, you know, and a lot of times they don’t necessarily get that because it takes time to generate. But reaching out to an attorney immediately so they can at least figure out, make a claim with the insurance companies, because I didn’t mention this, with no fault you have to make a claim for no fault within 30 days of the incident.

Oh wow okay. 

If you don’t submit a no fault application, that gives the no fault carriers an opportunity to disclaim payment for treatment and then it becomes a mess because these facilities aren’t getting paid right and then you have to take out a loan and pay it out of your pot after the case resolves because no fault didn’t pay. So very very important, ASAP, as quick as you can to hire an attorney so they can fill out and file the no fault applications and any other requisite documents in a timely fashion. And the same goes if you’re in an accident with in a New York City bus with the MTA or on the subway or you get hit by a, you know, we have a client who was hit by a Department of Transportation truck, you have to file a notice of claim within 90 days if you’re trying to sue a municipality. So again, it’s three years to sue if it’s a private vehicle, but if you’re talking about a municipal vehicle, you have to file a notice claim within 90 days. So regular people don’t know this, it’s important to hire an attorney as quickly as you possibly can because of these time constraints that could come up because you don’t control, you can’t control who’s hitting you.

Right, right and people don’t know this off the top of their head so well. As always, good tips for us regular people. Well thank you for tuning into the Millennial Lawyer Podcast with New York litigation attorney Mark Shirian. To connect with Mark, you can visit shirianpc.com and of course be sure to like, subscribe, and review our channel. Mark great to see you again, thanks for the tips. 

Thank you so much. 

Thanks for watching. Be sure to hit that like and subscribe button and leave us a review in the comments.