Tourists from Ontario
Serving Buffalo, New York
Below is an article personal injury attorney John Feroleto wrote and published in The Litigator regarding tourist-related injuries.
What to consider when your client calls about a New York Accident
Ontario residents visit New York State for holiday, work, shop and many other reasons. Most travel by car. This discussion will focus on motor vehicle collisions and whether it is in your client’s best interest to bring a claim in New York State or Ontario.
In 2003, more than 9.5 million personal vehicles entered New York State from Canada. Almost 6.5 million of those vehicles crossed into New York at the Buffalo/Niagara ports of entry. In these 9.5 million passenger vehicles over 21 million people crossed the border. Over 13 million of the travelers crossed at the Buffalo/Niagara bridges.
Truck crossings are also substantial. More than 2 million trucks entered New York State from Canada in 2003, of which 1.1 million crossed the Buffalo/Niagara bridges. Lastly, approximately 1.7 million passengers entered New York State from Canada on buses in 2003, of which 1.3 million entered at the Buffalo/Niagara ports.
In 2004, there were more than 230,000 motor vehicle collisions in New York State, of which 155,000 resulted in injury or death. Considering the number of Canadian residents who travel to New York State each year along with the number of crashes that occur in New York State, chances are you have had or will have a friend or client seeking advice about a New York State motor vehicle accident. When this occurs you should be aware of benefits available in both Ontario and New York State.
You must also determine whether it is in your client’s best interest to commence action in Ontario or the State of New York. This article is a brief discussion of what Ontario residents should consider when faced with a mishap in New York State.
There is no General Damage Deductible in actions brought in New York.
Unlike Ontario, New York State has no deductible for general damages, typically referred to as “pain and suffering” in New York. That is, if the general damages for a claim are $50,000.00, then the amount of settlement is $50,000.00 with no deductible or set off. The client is responsible for attorney’s fees and disbursements, which are deducted from the $50,000.00. On a smaller claim, such as a $25,000.00 claim, the proceeds payable to the client and attorney would be $25,000.00 from which the attorney’s fee and expenses are deducted.
Attorneys’ fees in New York are typically a contingent fee of one-third of the settlement or verdict. In claims where your client would receive no general damage award under Ontario law because of the $30,000.00 deductible, he or she would secure a recovery under New York State law as there is no deductible.
There are no Damage Caps in New York
In New York, there are no caps on general damages, including pain, suffering, disability, or permanency of the injury. There is also no cap on special damages, such as lost wages, medical expenses, loss of household services, etc. In a significant injury case, the greatest limiting factor can be the amount of insurance coverage available.
New York State has a notoriously low minimum required insurance on motor vehicles, $25,000.00 per injury, or $50,000.00 per accident and a $50,000.00 minimum limit for death benefits. Fortunately, many vehicle owners have greater policy limits and many have supplemental underinsurance benefits. Supplemental underinsurance benefits are available to all people in a vehicle for payment of general damages should there be insufficient coverage on the negligent driver’s vehicle.
Caveat: Counsel must advise of intent to pursue underinsurance benefits as soon as practicable and must secure consent from the supplemental underinsurance carrier prior to settling the claim against the negligent driver.
New York No-Fault Benefits
New York, like Ontario, has no-fault benefits. The minimum no-fault benefits available to a person are $50,000.00 per person, per collision, with an option for the vehicle owner to purchase additional coverage for a modest fee. The benefits are available to all vehicle occupants and pedestrians injured in a collision.
No-fault benefits include payment for health care benefits for a causally related injury for an unlimited period of time and lost wages for a period of up to three years from the date of injury. Basic lost wages are determined at 80% of the average gross wage up to $2,000.00 per month. Supplemental wage and medical benefits may be available if purchased by the car owner.
Caveat: Written notice must be submitted to the insurer within 30 days of the date of the accident or can be later with reasonable justification.
Can my client obtain a Recovery in New York?
New York has a threshold requirement that can best be described as quirky. An injury as minor as a non-displaced fracture of the fifth toe without any lost time from work or disability qualifies a person for recovery from a negligent person. However, a permanent injury may not qualify a person if it is not deemed “significant”.
Caveat: A motorcycle occupant does not need to meet a threshold to make a claim, but does not receive no-fault medical or wage benefits.
Perhaps the most common way a person qualifies to make a claim in New York is a non-permanent injury that disables the injured person from “substantially all” of his or her usual duties for at least 90 of the first 180 days following a collision.
This can be a disability from work or typical household or other activities if your client does not work. As a counselor, you want to be sure the treating doctor’s opinion is supported by objective medical evidence, and the doctor indicates the basis of his/her opinion.
The injuries which qualify a client for bringing an action are:
- 1. A fracture
- 2. A significant limitation of use of a body function or system. (This does not have to be permanent.)
- 3. Permanent loss of use of a body organ, member, function or system
- 4. Permanent consequential limitation of use of a body organ or member
- 5. A medically determined non-permanent injury which prevents the person from performing substantially all of the material acts which are the persons usual and customary daily activities for not less than 90 days during the first 180 days following the collision
- 6. Loss of a fetus
- 7. Significant disfigurement (usually a scar, can be a discoloration)
- 8. Dismemberment
- 9. Death
While some injuries require no explanation others merit a short discussion. Significant disfigurement need not be a large scar. A disfigurement is significant if a reasonable person viewing the plaintiff’s body in its altered state would regard the condition as unattractive objectionable.
In a 90 out of 180 temporary disability case medical documentation should refer to objective bases of injury, such as loss of range of motion, restrictions, tenderness, spasms, and a doctor’s qualitative assessment of how those conditions caused restrictions in daily life or rendered it improper for the patient to perform daily activities.
The doctor should compare the plaintiff’s limitations to the normal function, purpose, and use of the affected body organ, member, function, or system. A doctor’s opinion unsupported by an objective basis will likely be considered by a court as wholly speculative, in which case the court may dismiss the claim.
The permanent loss of use qualification requires a total loss of use of a body organ, member, function, or system.
For a permanent consequential limitation or a significant limitation of use, a treating doctor’s opinion, preferably supported by objective medical evidence such as MRI and CT scan tests and reports, along with observations during a physical examination of the injured party, including muscle spasms, tenderness, and loss of range of motion should be sufficient to defeat a motion for summary judgment.
Choice of Law
Insurance policies issued outside of New York State, including Canada, must provide at least the minimum liability and no-fault benefits pursuant to New York State law when the insured vehicle is used or operated in New York State. The issued policy will be construed as having such coverage when the insured vehicle is used or operated in New York. This means an Ontario resident can make a claim under New York State Laws and in New York State if more favorable to the Ontario resident.
A Canadian resident involved in a motor vehicle accident in New York State has a choice of whether to accept benefits under New York’s no-fault law or under Ontario’s statutory accident benefits schedule. Choosing to accept Ontario’s accident benefits does not restrict your client to Ontario’s strict threshold standard for bringing a liability action.
In Ontario, a person is only liable for non-pecuniary loss (pain and suffering) if the injured person dies, has sustained a permanent serious disfigurement, or a permanent serious impairment of an important physical, mental, or psychological function. Whether by motion or at trial, the trial judge determines whether the injured person has met this threshold. In New York, if there is a question of fact, the threshold question is on for the jury.
Statute of Limitations
Generally, the New York State statute of limitations for an individual bringing an action against another individual or corporation is three years. However, there are numerous exceptions. If a vehicle is owned by a governmental agency or a quasi-public agency or authority there may be a short statute and a notice of claim requirement. Typical examples would be a municipal bus company, airport, or other authority. There are hundreds of authorities in New York State, some not obvious.
A written notice must promptly be made for no-fault benefits and notice of intention to file an underinsured claim should also be promptly made. The statute of limitations is tolled in certain instances such as infancy. This discussion is by no means a complete analysis of statute of limitations, a topic which would be a lengthy article in and of itself.
Fee sharing between attorneys is allowed under New York State Law.
Ontario practitioners should evaluate if it is better for the client involved in a New York accident to bring an action in New York State. There is no pain and suffering deductible in New York State, there is joint and several liability, and there are no caps on damages. Canadian residents can receive their statutory accident benefits under Ontario law and apply New York’s liability law.
There are many considerations to maximize recovery for an Ontario resident involved in a New York State collision. It would be wise for an Ontario practitioner to contact a New York State attorney regarding any motor vehicle collision occurring in New York State regardless of whether an action is planned in Ontario or New York courts. In doing so you will competently evaluate those factors important in determining what is in your client’s best interest.
If you would like to learn more about us or the services we provide, please don’t hesitate to contact us today. Our personal injury attorneys look forward to assisting you with any questions you may have and explaining how we can effectively protect the rights of you and your family.