The New York "No-Fault" Law2

By: Gary E Rosenberg
How the No-Fault serious injury threshold works:

To recover non-economic loss damages and sue in a civil action, the injured person must establish that he or she satisfies the requirements of the No-Fault law. The No-Fault law precludes recovery for pain and suffering, between "covered persons," unless the accident victim proves a "serious injury." This is one of the most litigated sections of New York law, with many, many reported case decisions. Now remember, we are not even talking about liability or fault for the accident, which is a separate issue entirely. We are only talking about the degree of injury.

The nine No-Fault serious injuries in New York State's Insurance Law are:

1. Death (brought about by the accident);

2. Dismemberment - mangling, mutilation or dismemberment (loss of) a body part;

3. Significant disfigurement (a scar; there's no hard and fast formula for scar size - depends on the visibility of the scar; usually scars above scalp line don't clear the threshold);

4. A fracture (broken bone);

5. Loss of a fetus (traumatic abortion);

6. Permanent loss of use of a body organ, member, function or system (the first of the "tricky" categories);

7. Permanent consequential limitation of use of a body organ or member (pain alone won't do; headaches alone won't do; a herniated/bulging disc alone won't do; sprains/strains won't do);

8. Significant limitation of use of a body function or system; or,

9. A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment (known as the 90 out of 180 days rule).

The first five are the easy categories, they are fairly straightforward.

The two less tricky categories:

Number "6": If you can no longer use a part of your body, you can qualify.

Number "9": Usual and customary daily activities generally means that you miss three months of work in the first six months after the accident, but there are two wrinkles. First: Your failure to work has to be medically determined. In other words, your doctor must say that you can't work. Second: You need to show that you couldn't do any of your other customary daily activities. This may be housework, driving the children to school, or other things.

The two trickier categories:

Numbers "7" and "8" have no fixed definition or explanation. Some cases make it; some don't. Your lawyer needs a thorough understanding of the current case law to know how the courts are applying these two threshold categories. Frequently, it comes down to documenting a reduced range of motion in the injured part of your body - for example the doctor determines that you can't fully bend or twist or turnyour back or neck.

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