FAQs About Motor Vehicle Accidents

What should I do if I am in a car accident?

First, cooperate with the police. Also, obtain all indentifying information about the other driver and car as well as his or her insurance information. Do not let him/her leave the scene until the police get there. Make sure you also get the names and phone numbers of any witnesses. After you seek medical treatment, contact your own insurance carrier to put it on notice of the accident. Failing to do so might jeopardize your receiving additional insurance coverage from your own insurance policy. There is one thing you should definitely NOT do: Give statements to the other guy’s insurance carrier or agent. This could seriously hurt your case (contact us to find out why). Hire a lawyer instead (we hope us!) to talk to the insurance carrier.

Is the vehicle that rear-ends another vehicle always at fault?

Well, not always, but almost. In New York, there is a presumption that a vehicle that rear-ends a stopped vehicle is responsible for the accident, unless the driver of the rear-ending vehicle has a “reasonable explanation” for rear-ending the other vehicle. For example, a reasonable excuse might be sliding on black ice where there was no forewarning that the road was icy. Often the driver of the rear-ending vehicle will claim that the vehicle he struck “stopped abruptly”. That is usually not a good enough excuse, since the law requires motorists to keep a safe distance from vehicle they are following, and further requires motorists to see what there is to be seen. What if I am partially at fault in a car accident?

You still may have a good case. The law in New York allows you to recover against the other driver for his percentage of the fault. In otherwise, the law allows you to recover damages against the other driver, but will deduct from your total award your percentage of fault. As an example, if your case is worth $100,000, and a jury finds you 40% at fault and the other driver 60% at fault, then you recover $60,000.

What is a traumatic brain injury and what causes it?

Traumatic brain injury is an injury to the brain caused by a “trauma” (external physical force) to the brain. This force may cause hematoma brain swelling/edema, increased intracranial pressure, cerebral vasospasm, intracranial infection, epilepsy or coma. Traumatic brain injuries can be caused by motor vehicle crashes, slips and falls, and recreational accidents (bicycle crashes, playground equipment failures, skiing accidents, etc.). A traumatic brain injury can cause short term memory loss, loss of ability to concentrate, difficulty communicating, disorientation, and/or impaired judgment. It can also call muscle spasms, seizures, blindness, double vision, speech impairments, smell or taste impairment, headaches, fatigue, loss of balance, chronic pain,, anxiety, depression and mood swings.

What is whiplash?

“Whiplash” is a common term used to refer to “soft tissue” injuries to the neck, head and shoulders caused by the snapping motion (either forward and back or side to side) associated with car accidents. They do not involve fractured bones, but nevertheless can be serious. Doctors usually diagnose whiplash injuries as “sprains” or “strains” at first. Sometimes there are no symptoms at first, but only mild soreness or stiffness in the neck or shoulders. But as time goes on, whiplash victims may begin to experience much more severe pain. If it lingers, it could turn out to be “chronic” pain, or even involve herniated cervical discs, annular tears, or other such damage which might require surgery. Usually, the herniated discs or annular tears are discovered months later on an MRI or CAT scan (they don’t show up on X-rays).

Is there any such thing as a car crash where no one is at fault?

Yes, but it is rare. The most common causes of vehicle accidents are rear-end collisions, ignoring road signs and markings, driving unsuitably for weather conditions, failure to yield the right of way when turning left across traffic, speeding, drunk driving and simple inattentiveness. Even where ice or snow contributes to the driver losing control of the vehicle, the driver usually could have avoided the accident by driving at a more reasonable speed for the conditions. Use of cell phones, text messaging and other electronic devices pose new hazards on the roadway.

Are accidents caused by commercial trucks any different from ordinary car crashes?

Yes. If the culpable party is a commercial truck driver, you must be sure to hire an attorney with experience navigating the complex web of federal and New York State statutes and regulations regulating such drivers and their commercial carriers. We have ample experience with trucking accidents, so don’t hesitate to contact us regarding your trucking accident claim.

Can a driver fall asleep at the wheel and yet not be liable for the accident he causes?

Very unlikely. The modern view in New York courts is that falling asleep at the wheel creates a “legal presumption” of negligence sufficient to make out a “prima facie” case against the driver. In the words of the famous Saturday Night Live skit, if the driver fell asleep at the wheel, he will “have some spainin’ to do”. The fallen-asleep driver can attempt to rebut the presumption of negligence by introducing evidence that excuses or explains his conduct, but his own self-serving testimony that “I suddenly fell asleep without warning” won’t suffice. Common sense and human experience teach us that usually if you fall asleep at the wheel you did something wrong first; you did not get enough sleep to safely get behind the wheel, or you drove too many hours in a row, or you felt sleepy but tried to “fight” it, or you failed to take a rest stop.

Who is likely to fall asleep at the wheel?

Studies show the following people are more likely to fall asleep at the wheel: someone who misses just an hour or two of sleep a night for a period of time (this adds up to chronic sleepiness); People driving between midnight and 6 a.m. – it’s the body’s natural time to be asleep; Drivers who put in many miles a year, who drive for a number of hours a day and who put off taking breaks; People using sedating medications; Drivers with untreated or unrecognized sleep disorders, such as sleep apnea or narcolepsy; Drivers who have had drink (or several).

What kind of accidents do sleeping drivers cause?

Big ones. Why? Because the sleeping driver can’t even react to minimize the crash. The car either drifts off the road into a tree or other obstacle at full speed, or else, worse still, drifts over the center line into oncoming traffic and causes a head-on collision.

How can I prevent falling asleep at the wheel?

Obviously there are some preventive measures, such as making sure you get enough sleep before setting out, not consuming any alcohol, try not to drive at a time of night when you would normally be sleeping, and drive with company who can keep you awake by talking with you. But if you feel any sleepiness at the wheel, you should pull over and take a 15 to 20 minute nap --- it doesn’t sound like much, but studies show it works! Coffee also helps, but don’t rely on it – if you still feel sleepy after coffee, you can easily doze off even when pumped up with caffeine. By the way, there is no proof that blasting the radio or opening the window will prevent you from dozing off.

Should I talk to the insurance adjuster for the at-fault driver or the owner of the at-fault vehicle ?

No. In car accident cases, the other driver’s insurance agent is likely to telephone you to try to get you to give a “recorded statement” about how the accident happened before you have even had time to hire an attorney. Don’t do it! They are not doing this to help you, but rather will try to damage your case, contact us instead. We will talk to the insurance carrier's adjuster on your behalf.

What is "No-Fault" and how does it affect my case?

The purpose of New York’s “no-fault” law, which became law back in the 70’s, was to eliminate a great number of lawsuits stemming from automobile accidents where the injuries were relatively minor. Unfortunately, it has eliminated many injuries that are not so “minor” as well. The law (New York Insurance Law § 5102) essentially says that, unless you have a “serious injury”, as defined under Insurance Law § 5102, you can’t sue the driver or owner of the car that negligently injured you. Instead, you are limited to your “no-fault benefits”, which essentially consist of $50,000 in combined lost wages and medical expenses paid by your own (no-fault) automobile insurance policy (or, if you were in someone else’s car, the no-fault policy of the car you were in or, if you were a pedestrian, the no-fault policy of the car that struck you). No-fault benefits may also include payment for mileage reimbursement for transportation to and from all medical providers, and death benefits in the event of a fatality. You have to file a no-fault claim form within 30 days of the accident, so don’t delay.The no-fault law may not apply if you were on a motorcycle (unless you elected to buy no-fault insurance for your motorcycle) or in certain other cases, so check with your lawyer. If no-fault does apply, and you do have a “serious injury”, you can not only collect your “no-fault benefits”, but you can in addition bring a claim against the negligent driver and owner of the at-fault vehicle that caused the accident for “pain and suffering” compensation, as well as for any lost wages and medical expenses not covered by no-fault (called “excess economic loss”). The issue of what constitutes a “serious injury” allowing you to bring a claim against the negligent driver and owner of the at-fault vehicle can be a complicated issue that requires competent legal analysis. If the accident causes death, dismemberment, loss of a fetus or a fracture, it has, without question, caused a “serious injury” within the meaning of the Statute. But if your injury does not fall into any of these straight-forward categories, proving that you have suffered a “serious injury” is more complicated. For example, if the accident has caused you to be kept out of work, or prevented you from doing many of your normal activities, for more than 90 out of the first 180 days after the accident, then your injury may qualify as serious, depending on the specific facts. Also, if you have a loss (even partial loss) of the use of a body part, such as your neck, back, arm, etc., this may constitute a “serious injury” depending on the facts. If you have a scar from the accident, that could also qualify as a serious injury if it is disfiguring enough. You really need a good personal injury lawyer to look at your medical records and the facts of your case to determine whether you have met the “serious injury” threshold to be able to bring a claim against the negligent driver and owner of the at-fault vehicle for compensation beyond no-fault benefits. If it is a close call, the success of proving “serious injury” will be determined by the skill, experience and competence of your attorney. A good personal injury attorney knows how to ethically present your injury in a way most likely to qualify it as “serious” in the eyes of the law and of a jury. The lawyers at Michaels & Smolak are skilled, experienced and competent at doing just that, so contact us today for a free consultation.

What is "SUM" Insurance and why is it so important?

At Michaels & Smolak, we review auto and motorcycle insurance policies all the time, in fact every time we have a client who is injured in a car or on a motorcycle. We therefore know the do’s and don't's of purchasing auto and motorcycle insurance coverage. Here is the bad news: Almost all our clients fail to purchase a very important part of insurance coverage, one that could make a HUGE difference in the amount of compensation you receive if you or your loved ones are injured in a car or motorcycle crash. It is called “SUM” coverage, which stands for “Supplemental Underinsurance Coverage”. Now here’s the good news: You can buy it for only a very small increase in your premium payments, yet the protection it supplies you and your family is HUGE! It is the BEST BUY in the insurance market. How does SUM coverage work?Here’s how SUM works: Say you have purchased a good liability auto policy with $100,000 of coverage. This means that if you hurt someone with your car, and it is your fault, the victims of YOUR negligence can get up to $100,000. But what if you or your family is seriously injured by the fault of another motorist? And what if that other at-fault motorist had only $25,000 (the minimum in New York is $25,000 per injured person and $50,000 per accident) in liability coverage? Well, your own $100,000 in liability coverage won’t help you at all. That would cover only someone injured by YOUR driving errors. All you or your family member can get in coverage is the $25,000 the at-fault driver had . . . UNLESS you had the foresight to purchase “SUM” coverage. Say you had $100,000 is SUM coverage. Now what happens is you get the $25,000 in coverage from the at-fault driver, and in addition you get $75,000 from your own “SUM” policy to cover your losses. Another reason it is important to buy good SUM coverage is that most accidents are caused by people carrying only the minimum $25,000 liability coverage. People with bad driving records have to pay more for insurance, so they are often the most likely to be able to afford only the cheapest ($25,000) liability insurance. You are most likely to get hit by a drunk, a speeding car, or a young guy with all kinds of traffic tickets under his belt, and these are the very same people who are most likely to carry the minimum liability insurance!

If it is so important, why didn’t my insurance broker talk to me about SUM coverage?

Good question. The fact is, they don’t. Maybe they don’t want to take the time to explain it. And they do not make much money off of selling it. So if you don’t specifically ask your insurance broker/agent for SUM coverage, he or she is likely to give you only the minimum $25,000 in SUM, which really provides you this additional amount only if the at-fault vehicle that struck you is uninsured! And that rarely happens. So the standard $25,000 is SUM coverage is virtually useless. You need more, and again, it is CHEAP. By the way, if you bought insurance for your motorcycle, I’ll bet you purchased NO SUM COVERAGE AT ALL --- that’s right, not even the $25,000 minimum, because the minimum applies only to automobiles, not motorcycles. If you want any SUM coverage at all for a motorcycle, you have to specifically request it from your broker. Do it today!

Isn’t the minimum $25,000 enough coverage?

$25,000 might sound like a lot of money, but if you are seriously injured and can’t work, that money is NOTHING. You will run dry in no time, and you will be regretting your decision to not buy good SUM coverage.

We at Michaels & Smolak recommend that you make sure that your SUM coverage is at the same level as your liability coverage. Therefore, if you have $100,000 in liability coverage, make sure you also have $100,000 in SUM coverage. Call your insurance broker today to make the change! You will see how cheap it is. If you or your passengers are ever injured by the fault of another driver, you will call us and thank us for this advice. And do contact us to represent you regarding your motor vehicle accident!

When should I call a lawyer?

If you need medical attention immediately or soon after the accident, you should seek legal advice as soon as you can after getting proper medical attention. Don’t wait. Although the injury may appear minor at first, it might develop into a significant injury. Your lawyer will want to investigate the accident while the evidence is still fresh. Also, some important time limitations for filing certain claims might slip by if you wait. For example, you need to file your no-fault claim form within 30 days of the accident. If there is an issue of negligent road design or maintenance, you may need to file notice of claim against the government agency responsible for the roadway within 90 days. Your lawyer will also want to check your own insurance policy to see if it has “SUM” (Supplemental un/underinsured motorist coverage) to see if there is any “hidden” insurance coverage in it. If a “SUM” claim needs to be filed against your own insurer, your lawyer will need to put your carrier on notice of this as soon as possible. Otherwise, you jeopardize losing such “hidden” insurance coverage. So contact us as soon as you can about your car crash case for a free consultation!

What is the statute of limitations for car accident claims in New York?

Generally, 3 years from the date of your injury. However, there are exceptions. For example, if the victim is a child under 18 years old, his or her statute of limitations does not even start to run until he or she is 18, so normally it would expire on his or her 21st birthday. Also, it depends on the defendant. If you sue the State of New York (for example, where a New York State vehicle struck you, or a defectively designed State road caused the accident) you must generally do so within 2 years, and if you sue a "municipality", a "public corporation", or other government agency, your statutes of limitations could by 1 year and 90 days or even shorter, depending on type of government agency you are suing. Further, when suing government agencies, you often need to serve or file a "notice of claim" or "notice of intention of claim" within 90 days of the injury, and sometimes even shorter time limits apply. There are other statutes of limitations and exceptions that may apply to your case. Contact us to discuss your statute of limitations.

Four things NOT to do after a car accident:

First, never sign any documents, or give any “recorded statements”, to anyone without first consulting with an attorney. What you sign or say can come back to haunt you if you end up bringing a claim for your personal injuries. Insurance agents are notoriously good at getting you to say things that tend to later hurt your case.

Second, try not to say “it was my fault” or anything to that effect at the scene or afterwards (except to your attorney). Sometimes you want to apologize to be polite or nice, or because you actually feel it was your fault. But you could be wrong about whose fault it was! Even if it was partly your fault, evidence that comes up later might show that it was also the other guy’s fault, or the road design’s fault. But if people have heard you say “it was my fault”, that sentence will later be waived before the jury time and time again to show that it was all your fault. So don’t say it, even if you think it!

Third, don’t try to be a hero by refusing medical treatment or telling everyone that you are alright when in fact you have pain. Some people, men usually, are brought up to believe it is a weakness to complain, or to admit to pain. But if you say “I’m alright” or if you wait a few days to get medical treatment because you are trying to “tough it out”, this will hurt your case. The insurance company lawyer will point out to the jury that, by your own admission, you had “no pain” at the time of the accident, that you did not seek or need treatment, and that you only felt pain “after you consulted a lawyer”! That’s right, they will argue that you made the whole thing up with your lawyer just to get money.

Finally, never talk to the other guy’s insurance carrier about the details of your accident or your pain and injuries, and certainly don’t talk to them about settling your case. Before you do any of that, you need to consult with a reputable lawyer, and not just a regular lawyer, but one who has a solid reputation for handling personal injury cases. Contact us today for a free consultation.

What if I can’t afford an attorney?

That’s impossible. A reputable personal injury attorney will not charge you for an initial consultation. Michaels & Smolak will give you a free consultation. If we decide to represent you, we will charge you on a contingency fee basis, which is usually 1/3 of the net recovery we obtain for you, whether from a settlement or from a jury. Since the initial consultation is free, why wait? Contact us today for a free consultation.

Michaels & Smolak has recovered millions of dollars for clients injured in automobile collisions and for other injuries to cover their medical bills, lost earnings, pain and suffering, and more. If you or a loved one has been a victim of an automobile accident, contact us for a free consultation with an experienced lawyer who can inform you of your legal rights and maximize your compensation.

What if I have more questions?

Contact us for a free consultation. We will answer all your questions at no cost.