Bill S880-2013

Adds to the definition of serious injury and relates to determining the sufficiency of the evidence related to the serious injury

Adds to the definition of serious injury and relates to determining the sufficiency of the evidence related to the serious injury; includes that question of fact will be determined by the trier.

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  • Jan 8, 2014: REFERRED TO INSURANCE
  • Jan 9, 2013: REFERRED TO INSURANCE

Memo

BILL NUMBER:S880               REVISED 01/04/13

TITLE OF BILL: An act to amend the insurance law, in relation to the definition of serious injury and determining the sufficiency of the evidence with respect thereto

PURPOSE OF BILL: To provide fairness, guidance, clarity and consistency in the application of the law. determining "serious injury", to more accurately and equitably administer the original intent of the No-Fault law.

SUMMARY OF PROVISIONS: OF BILL:

Section 1: Amends section 5102(d) of the Insurance Law to adjust the definition of "serious injury" to read as follows "...a personal injury which results in death; dismemberment; significant disfigurement; a fracture; a partial or complete tear or impingement of a nerve, tendon, ligament, muscle or cartilage; injury to any part of the spinal column that results in injury to an intervertebral disc; impingement of the spinal cord, spinal canal, nerve, tendon or muscle; loss of a fetus; permanent total or partial loss of use of a body organ, member, function or system; any injury resulting in the need for a surgical procedure; any permanent consequential limitation of use of a body organ, member, function or system; any significant limitation of use of a body organ, member, function or system; or any medically determined injury or impairment of a permanent or 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. A finding of serious injury under any of the above enumerated categories in this definition shall be a sufficient basis for an award for past and/or future damages."

Section 2: Amends the Insurance Law by creating a new section, § 5102-a, as follows "Issues of fact and sufficiency of the evidence. Whether an injury qualifies as a serious injury pursuant to subdivision (d) of section five thousand one hundred two of this article shall be a question of fact. Where evidence is offered as to (a) whether an injury qualifies as a serious injury pursuant to subsection (d) of section five thousand one hundred two of this article, or (b) the causation of such an injury, the sufficiency and weight of evidence offered, including but not limited to that pertaining to qualitative and/or quantitative assessment of injury, shall be reserved for the trier of fact."

Section 3: Effective date.

JUSTIFICATION: When the Legislature originally passed N.Y.S. Ins. Law § 5102, it

never intended that New York's citizens would be deprived of their constitutional right to a trial by jury where they actually sustained a serious injury. The judicial transformation and interpretation of this statute has produced overwhelming obstacles never intended by the legislature and has clogged the courts with boilerplate "threshold motions" which monopolize judicial resources.

Over the past twenty years developments in technology have enabled medical practitioners to identify injuries to ligaments, tendons, tissue, nerves and other non-bony structures through the use of CT Scans, MRIs, EMGs and other methods. Prior to these advances in technology significant injuries would not have been revealed or adequately appreciated, but they are now readily identifiable, and the seriousness of their effects are understood far better than ever before.

Unfortunately, current law has not kept pace with modern medicine. As a result numerous cases where a serious injury was clearly present have been dismissed because the existing law does not clearly and specifically list and identify such injuries as actionable, regardless of how the injury affected the accident victims' lives.

The proposed amendments would curtail summary dismissal of legitimate cases involving significant injuries not objectively verifiable when the law was originally enacted in 1977. The Courts have been flooded with countless motions and extensive appellate practice on the issue of whether a serious injury was sustained, resulting in unfair and contradictory decisions and the dismissal of meritorious claims. Injured parties in one Judicial Department may have their case dismissed as "non-serious" while in another Judicial Department a case with similar facts is permitted to proceed.

In all of the following New York Cases, the courts ruled that based on the current definition and interpretation of "serious injury" that a jury was precluded from determining whether a serious injury was sustained and therefore the case was dismissed:

* MATRA V. RAZA - a person suffered injuries requiring surgery to both knees as a result of an automobile accident (Matra v. Raze -AD3d-2008 NY Slip Op. 06289 [2"d Dept. 2009]);

* TAYLOR V. AMERICAN RADIO DISPATCHER. INC. - an accident victim sustained a tear of the anterior talo-fibular ligament of her ankle and a tear of the meniscus of her right knee confirmed by MRI requiring surgery (Taylor v. American Radio Dispatcher-AD3d-2009 NY Slip Op. 0427 [1" Dept. 2009]);

* BYRD V. LIMO - a person suffered a tear to the musculature of their shoulder requiring surgery (Byrd v. Limo-AD3d-2009 NY Slip Op. 09637 [2"d Dept. 2009]);

* DANVERS V. NEW YORK CITY TRANSIT AUTHORITY, - a victim of a motor

vehicle accident sustained a torn ligament to the ankle that required surgery (Danvers v. New York City Transit Authority AD3d-2008 NY Slip Op. 09637 [2"d Dept. 2009]);

* CARTHA V. QUIN - a person sustained injuries to their elbow requiring invasive surgery (Cartha v. Quin-AD3d-2008 Slip Op. 03714 [151 Dept. 2008]);

* VALENTIN V. POMILLA - a person suffered herniated discs to their spinal column with consequential nerve damage, which were confirmed by objective and positive EMGs, and sustained injury to their right knee, which required surgery (Valentin v. Pomilla. 59 AD3d 184 [1' Dept. 2009]).

These and countless other cases like them have all been dismissed by our courts for the same reason: despite clearly evident and debilitating injuries being present, these types of injuries have all been denominated as "non-serious" by current judicial interpretations of 5102(d) of the Insurance Law.

Moreover, the judiciary has seemingly usurped the authority of the Legislature by unilaterally imposing "requirements" for proof of a serious injury. While the existing statute does not require proof of contemporaneous quantitative testing or require non-stop medical treatment for all victims of vehicular negligence the judiciary has created these as additional hurdles for an injured person to leap over to prove that they are seriously injured.

Decisional law has repeatedly provoked courts to dictate medical practices to physicians by imposing these requirements in to the vagaries of treatment every time a "threshold" motion is interposed. However, not all judges have approved of this judicial expansion into usurping the roles of the Legislature, physicians, and juries. The judiciary has repeatedly asked the Legislature for clarification of the statute and firm guidance as to its application, to ensure fairness and consistency in applying the "serious injury threshold" and ease the enormous burden the current law inflicts on the bench and upon citizens that have suffered serious injuries.

The amendments proposed by this bill would remedy these problems by clarifying what qualifies as a "serious injury" and promote fairness and consistency in its application, taking into account modern medicine and technology which have enabled medical practitioners to identify with more specificity and clarity those injuries having real and serious consequences. These amendments would further call for jury determinations on factual issues surrounding the nature and extent of the claims, rather than continuing to hamstring an already overburdened judiciary with myriad "threshold" motions. Most importantly, these amendments would promote fair, swift, consistent, rational, just and easily comprehensible results, in keeping with the intent of the original law.

LEGISLATIVE HISTORY:

S.3790 of 2012: Died in Senate Insurance, Died in Assembly Insurance S.3790 of 2011: Died in Senate Insurance, Died in Assembly Insurance A.10739 of 2010: Died in Assembly Insurance

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.

EFFECTIVE DATE: This act shall take effect immediately and shall be applicable to: (i) all actions and proceedings commenced on or after the effective date of this act; and (ii) all actions and proceedings commenced prior to the effective date of this act and pending on the effective date of this act, where as of such date a trial of the issues thereon has not yet commenced and a dispositive motion has not yet been filed.


Text

STATE OF NEW YORK ________________________________________________________________________ 880 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sens. BONACIC, DeFRANCISCO, MAZIARZ -- read twice and ordered printed, and when printed to be committed to the Committee on Insurance AN ACT to amend the insurance law, in relation to the definition of serious injury and determining the sufficiency of the evidence with respect thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subsection (d) of section 5102 of the insurance law, as amended by chapter 955 of the laws of 1984, is amended to read as follows: (d) "Serious injury" means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; A PARTIAL OR COMPLETE TEAR OR IMPINGEMENT OF A NERVE, TENDON, LIGAMENT, MUSCLE OR CARTILAGE; INJURY TO ANY PART OF THE SPINAL COLUMN THAT RESULTS IN INJU- RY TO AN INTERVERTEBRAL DISC; IMPINGEMENT OF THE SPINAL CORD, SPINAL CANAL, NERVE, TENDON OR MUSCLE; loss of a fetus; permanent TOTAL OR PARTIAL loss of use of a body organ, member, function or system; ANY INJURY RESULTING IN THE NEED FOR A SURGICAL PROCEDURE; ANY permanent consequential limitation of use of a body organ [or], member, FUNCTION OR SYSTEM; ANY significant limitation of use of a body ORGAN, MEMBER, function or system; or [a] ANY medically determined injury or impairment of a PERMANENT OR 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. A FINDING OF SERIOUS INJURY UNDER ANY OF THE ABOVE ENUMERATED CATEGORIES IN THIS DEFINITION SHALL BE A SUFFICIENT BASIS FOR AN AWARD FOR PAST AND/OR FUTURE DAMAGES.
S 2. The insurance law is amended by adding a new section 5102-a to read as follows: S 5102-A. ISSUES OF FACT AND SUFFICIENCY OF THE EVIDENCE. WHETHER AN INJURY QUALIFIES AS A SERIOUS INJURY PURSUANT TO SUBSECTION (D) OF SECTION FIVE THOUSAND ONE HUNDRED TWO OF THIS ARTICLE SHALL BE A QUES- TION OF FACT. WHERE EVIDENCE IS OFFERED AS TO (A) WHETHER AN INJURY QUALIFIES AS A SERIOUS INJURY PURSUANT TO SUBSECTION (D) OF SECTION FIVE THOUSAND ONE HUNDRED TWO OF THIS ARTICLE, OR (B) THE CAUSATION OF SUCH AN INJURY, THE SUFFICIENCY AND WEIGHT OF EVIDENCE OFFERED, INCLUDING BUT NOT LIMITED TO THAT PERTAINING TO QUALITATIVE AND/OR QUANTITATIVE ASSESSMENT OF INJURY, SHALL BE RESERVED FOR THE TRIER OF FACT. S 3. This act shall take effect immediately and shall be applicable to: (i) all actions and proceedings commenced on or after the effective date of this act; and (ii) all actions and proceedings commenced prior to the effective date of this act and pending on the effective date of this act, where as of such date a trial of the issues thereon has not yet commenced and a dispositive motion has not yet been filed.

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