Under the New York Insurance Law section 5102(d), in order to bring an action for injuries and loss arising from an automobile accident, a Plaintiff must suffer and prove a “serious” injury. What constitutes a “serious injury”? There are nine categories:
- Significant disfigurement
- A fracture
- The loss of a fetus
- Permanent loss of the use of a body organ, member, function or system
- Permanent limitation of the use of a body organ or member
- Significant limitation of the use of a body function or system
- A medically determined injury or impairment of a nonpermanent nature which prevents the injured person from performing substantially all of the material acts which constitute the person’s usual and customary daily activities for a specified period of time
These requirements apply when both parties to the accident are “covered parties” – both are covered by no-fault insurance. However, a motorcyclist is not a “covered party” under the no-fault law. Therefore a motorcyclist is not required to prove that he sustained a serious injury. Once a Plaintiff establishes a “serious injury,” then he can seek recovery for all accident-related injuries, not just the “serious injury.” However, without establishing that “serious injury,” a Plaintiff can not seek to recover.
Serious injury is not always a clear situation. For example in a death case, there may be questions about whether the death was caused by the accident or by some other condition. For example, if a person bruises his leg resulting in an infection and then the infection travels to the lungs causing death, proof is necessary to link the death to the accident. Sometimes the link is too attenuated to result in recovery.
If you have been seriously injured in an automobile accident, you should consult with an experienced personal injury attorney.